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Business Law

Business Law
Eighth edition

Ewan MacIntyre
Pearson Education Limited
Edinburgh Gate
Harlow
Essex
CM20 2JE
United Kingdom

Tel: +44 (0)1279 623623


Web: www.pearson.com/uk

First published 2001 (print)


Second edition 2005 (print)
Third edition 2007 (print)
Fourth edition 2008 (print)
Fifth edition 2010 (print)
Sixth edition 2012 (print
Seventh edition published 2014 (print and electronic)
Eighth edition published 2016 (print and electronic)

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NOTE THAT ANY PAGE CROSS REFERENCES REFER TO THE PRINT EDITION
Brief contents

Preface xi
Table of cases xiii
Table of statutes xxx
Table of statutory instruments xliv
Table of European legislation xlviii
  Study skills xlix
  1 The legal system 1
  2 The courts and legal personnel 39
  3 Formation of contracts – offer and acceptance 65
  4 Other requirements of a contract – intention to create legal relations ·
consideration · formalities · capacity 88
  5 Contractual terms 114
  6 Misrepresentation · mistake · duress and undue influence · illegality 141
  7 Discharge of liability · remedies for breach of contract 172
  8 Terms implied by statute 206
  9 Sale of goods – the passing of ownership 245
10 Sale of goods – duties of the parties · remedies · international sales 272
11 Agency 296
12 The law of torts 1 322
13 The law of torts 2 354
14 Credit transactions 375
15 Partnership 411
16 The nature of a company and formation of a company 445
17 The management of a company 473
18 Shareholders · resolutions · maintenance of capital · minority protection ·
debentures 510
19 Winding up of companies · limited liability partnerships · benefits of
trading as a company, partnership or limited liability partnership 549
20 Employment 1 – duties of employer and employee · dismissal · redundancy 579
21 Employment 2 – discrimination · health and safety · rights of employees 621
22 Regulation of business by the imposition of criminal liability 658
23 Business property 685
Appendix: Answers to Test your understanding questions 705
Bibliography 731
Index 733
This page intentionally left blank
Detailed contents

Preface xi 3.3 Certainty 74


Table of cases xiii 3.4 Offer and acceptance when dealing
Table of statutes xxx with machines 77
Table of statutory instruments xliv 3.5 Acceptance of an offer of a unilateral
Table of European legislation xlviii contract 78
3.6 Termination of offers 79
Study skills xlix 3.7 Battle of the forms 82
Key points 83
1  The legal system 1 Summary questions 84
Introduction 1 Multiple choice questions 85
1.1 Features of the English legal system 1 Task 3 87
1.2 Classification of English law 4
1.3 Sources of English law 8 4  Other requirements of a contract –
1.4 European Union law 21 intention to create legal relations ·
1.5 The European Convention on Human consideration · formalities ·
Rights 28 capacity 88
Key points 34 Introduction 88
Summary questions 37 4.1 Intention to create legal relations 88
Multiple choice questions 37 4.2 Consideration 92
Task 1 38 4.3 Formalities 106
4.4 Capacity 107
2  The courts and legal personnel 39 Key points 109
Introduction 39 Summary questions 110
2.1 The civil courts 39 Multiple choice questions 111
2.2 The criminal courts 44 Task 4 113
2.3 Procedure in the civil courts 48
2.4 Alternative dispute resolution 52 5  Contractual terms 114
2.5 The legal profession 55 Introduction 114
2.6 The judiciary 58 5.1 Nature of contractual terms 114
2.7 Juries 60 5.2 Express terms distinguished from
2.8 Law reform 61 representations 114
2.9 Law reporting 61 5.3 Implied terms 119
Key points 62 5.4 Types of terms 123
Summary questions 63 5.5 Exclusion clauses 126
Multiple choice questions 63 5.6 The Unfair Contract Terms
Task 2 64 Act 1977 130
5.7 Part 2 of the Consumer Rights
3  Formation of contracts – offer and Act 2015 134
acceptance 65 Key points 137
Introduction 65 Summary questions 138
3.1 Offer 65 Multiple choice questions 139
3.2 Acceptance 69 Task 5 140
viii  Detailed contents

6  Misrepresentation · mistake · duress 10 Sale of goods – duties of the


and undue influence · illegality 141 parties · remedies · international
Introduction 141 sales 272
6.1 Misrepresentation 141 Introduction 272
6.2 Mistake 152 10.1 Duties of the seller 272
6.3 Duress and undue influence 159 10.2 Duties of the buyer 277
6.4 Illegal and void contracts 164 10.3 Remedies of the seller 278
Key points 167 10.4 Remedies of the buyer 281
Summary questions 169 10.5 Auction sales 286
Multiple choice questions 170 10.6 International sales 287
Task 6 171 Key points 292
Summary questions 293
7  Discharge of liability · remedies Multiple choice questions 294
for breach of contract 172 Task 10 295
Introduction 172
7.1 Discharge of liability 172 11 Agency 296
7.2 Remedies for breach of contract 188 Introduction 296
Key points 201 11.1 The concept of agency 296
Summary questions 202 11.2 Creation of agency 297
Multiple choice questions 203 11.3 Liability on contracts made by agents 303
Task 7 205 11.4 Duties of the agent 306
11.5 The rights of the agent 311
8  Terms implied by statute 206 11.6 Termination of agency 312
Introduction 206 Key points 316
8.1 The Sale of Goods Act 1979 207 Summary questions 317
8.2 The terms implied into non-consumer Multiple choice questions 319
contracts by the Sale of Goods Act 1979 209 Task 11 320
8.3 Implied terms in non-consumer
contracts other than sales of goods 224 12  The law of torts 1 322
8.4 The status of the statutory implied Introduction 322
terms 228 12.1 Nature of tortious liability 322
8.5 Exclusion of the statutory implied terms 229 12.2 Negligence 323
8.6 The terms implied by the 12.3 Negligent misstatement 342
Consumer Rights Act 2015 230 12.4 The Consumer Protection Act 1987
Key points 239 Part I 343
Summary questions 241 12.5 The Occupiers’ Liability Acts 1957
Multiple choice questions 243 and 1984 346
Task 8 244 12.6 Time limits 349
Key points 350
9  Sale of goods – the passing Summary questions 351
of ownership 245 Multiple choice questions 352
Introduction 245 Task 12 353
9.1 The passing of the property and the risk 245
9.2 Reservation of title clauses 256 13  The law of torts 2 354
9.3 Sale by a person who is not the owner 260 Introduction 354
Key points 266 13.1 Private nuisance 354
Summary questions 268 13.2 Public nuisance 357
Multiple choice questions 269 13.3 Strict liability (the rule in
Task 9 271 Rylands v Fletcher) 358
13.4 Trespass to land 360
Detailed contents  ix

13.5 Trespass to the person 360 16.7 Off-the-shelf companies 464


13.6 Trespass to goods 361 16.8 Contracts made before the company
13.7 Defamation 362 is formed 465
13.8 Vicarious liability 365 16.9 The company name 466
13.9 The tort of breach of statutory duty 369 16.10 The Registrar of Companies 469
13.10 Economic torts 369 Key points 469
13.11 Passing-off 370 Summary questions 471
Key points 371 Multiple choice questions 471
Summary questions 372 Task 16 472
Multiple choice questions 373
Task 13 374 17  The management of a company 473
Introduction 473
14  Credit transactions 375
17.1 Directors 473
Introduction 375 17.2 The company secretary 493
14.1 The Consumer Credit Acts 1974 17.3 The auditor 495
and 2006 375 17.4 Company registers 500
14.2 Types of credit transactions 402 17.5 The annual return 502
14.3 Interest on trade debts 406 17.6 Accounts and accounting records 503
Key points 407 Key points 505
Summary questions 408 Summary questions 506
Multiple choice questions 409 Multiple choice questions 507
Task 14 410 Task 17 509
15 Partnership 411
18 Shareholders · resolutions ·
Introduction 411
maintenance of capital · minority
15.1 The nature of partnership 411
protection · debentures 510
15.2 The definition of a partnership 412
15.3 Specific indications as to whether Introduction 510
or not a partnership exists 415 18.1 Shareholders 510
15.4 The partnership agreement 417 18.2 The nature of shares 511
15.5 Partners’ relationship with each other 424 18.3 Becoming a shareholder of a
15.6 Partnership property 425 company with a share capital 513
15.7 Partners’ fiduciary duties to 18.4 Company resolutions and meetings 516
each other 426 18.5 The legal effect of the constitution 524
15.8 Partners’ relationship with outsiders 429 18.6 Maintenance of capital 526
15.9 Dissolution and winding up 436 18.7 Insider dealing 530
15.10 Limited partners 440 18.8 Protection of minority shareholders 531
Key points 441 18.9 Loan capital 540
Summary questions 442 Key points 544
Multiple choice questions 443 Summary questions 546
Task 15 444 Multiple choice questions 547
Task 18 548
16 The nature of a company and
formation of a company 445 19 Winding up of companies ·
Introduction 445 limited liability partnerships ·
16.1 The Companies Act 2006 445 benefits of trading as a company,
16.2 The nature of a company 446 partnership or limited liability
16.3 The corporate veil 451 partnership 549
16.4 Classification of companies 454 Introduction 549
16.5 Formation of registered companies 459 19.1 Winding up of companies 549
16.6 The constitution of a company 462 19.2 Limited liability partnerships 561
x  Detailed contents

19.3 Choice of legal status 568 21.16 The Transfer of Undertakings


Key points 573 (Protection of Employment)
Summary questions 575 Regulations 2006 (TUPE) 646
Multiple choice questions 576 21.17 The Working Time Regulations 1998 646
Task 19 578 21.18 Authorised deductions from wages 648
21.19 Time off work 650
20 Employment 1 – duties of 21.20 Procedure for bringing a claim
employer and employee · before an employment tribunal 651
dismissal · redundancy 579 Key points 652
Summary questions 654
Introduction 579
Multiple choice questions 655
20.1 Employees contrasted with
Task 21 657
independent contractors 581
20.2 The terms of the contract of
22 Regulation of business by the
employment 584
imposition of criminal liability 658
20.3 Termination of employment 594
20.4 Unfair dismissal 598 Introduction 658
20.5 Redundancy 612 22.1 The nature of a crime 658
Key points 616 22.2 The Consumer Protection from
Summary questions 618 Unfair Trading Regulations 2008 660
Multiple choice questions 619 22.3 The Business Protection from
Task 20 620 Misleading Marketing
Regulations 2008 669
22.4 Product safety 671
21 Employment 2 – discrimination ·
22.5 The Computer Misuse Act 1990 672
health and safety · rights of
22.6 Enforcement of consumer law 674
employees 621
22.7 Competition law 675
Introduction 621 22.8 The Bribery Act 2010 679
21.1 Overview of the Equality Act 2010 622 Key points 681
21.2 The protected characteristics 622 Summary questions 682
21.3 Types of personal characteristic Multiple choice questions 683
discrimination 624 Task 22 684
21.4 Equality of terms 627
21.5 Public sector equality duty 632 23  Business property 685
21.6 Positive action 632
Introduction 685
21.7 Discrimination against persons with
23.1 Legal concepts of property 685
criminal records 633
23.2 Copyright 687
21.8 Discrimination against part-time
23.3 Patents 693
workers 633
23.4 Trade marks 696
21.9 Discrimination against fixed-term
23.5 The Data Protection Act 1998 698
workers 635
Key points 702
21.10 The Agency Workers
Summary questions 703
Regulations 2010 635
Multiple choice questions 704
21.11 Health and safety 636
Task 23 704
21.12 Maternity and paternity rights 641
21.13 Adoption leave and pay 644 Appendix: Answers to Test your
21.14 Flexible working for parents and   understanding questions 705
carers 644 Bibliography 731
21.15 The national minimum wage 645 Index 733
Preface

Changes in the law Durkin v DSG Retail Ltd [2014] UKSC 21


Plevin v Paragon Personal Finance Ltd [2014] 1 WLR
This edition considers in detail the Consumer Rights 4222
Act 2015, which has finally come into force. The bulk Thompson v The Renwick Group plc [2014] EWCA Civ
of the new material, some 10,000 words, is set out 635
in Chapters 5 and 8, considering the CRA’s implied Jessemey v Rowstock Ltd [2014] EWCA Civ 185
terms and its rules on exclusion of liability. However, Yapp v Foreign and Commonwealth Office [2014]
the CRA has made smaller changes to several other EWCA Civ 1512
chapters. The Consumer Contracts (Information,
Cancellation and Additional Charges) Regulations The aim of this book
2013 are also considered in detail, as they have
This book aims to provide a comprehensive treat-
replaced the Distance Selling Regulations 2000 and
ment of business law in a way which is both inter-
the Cancellation of Contracts made in a Consumer’s
esting and easily understood. The text covers most
Home or Place of Work etc. Regulations 2008.
areas which could be classified as business law in
New cases are included throughout the text. The
an academically rigorous way. More specifically this
most important of these, in the order in which they
text aims to be:
appear in the text, are:
■ Comprehensive in its scope, covering not only the
North Eastern Properties v Coleman [2010] 3 All ER 528 more traditional business law subjects, but also
Lloyd v Browning [2013] EWCA Civ 1637 the English Legal System, Employment, Consumer
Salt v Stratstone Specialist Ltd [2015] EWCA Civ 745 Credit, Intellectual Property, Trade Descriptions,
El Makdessi v Cavendish Square Holdings BV [2013] Misleading Price Indications, Competition Law
EWCA Civ 1539 and Product Safety.
Cavendish Square Holdings BV v Talal El Makdessi/ ■ Holistic in its approach. In every chapter there are
ParkingEye Ltd v Beavis [2015] UKSC 67 numerous cross-references to other sections of the
Simpole v Chee [2013] EWHC 444(Ch) text, demonstrating the inter-relationship between
Blankley v CMMCUH NHS Trust [2015] EWCA Civ18 the various subject areas.
FHR European Ventures Ltd v Cedar Capital Partners
■ Thorough in its treatment of the law. Despite the
LCC [2015] 1 AC 250
easily readable style of the text, difficult issues are
Warren v DrukkeriJ Flach B.V. [2014] EWCA Civ 993
dealt with thoroughly even in areas where the law
Michael v Chief Constable of South Wales [2015]
is highly technical.
UKSC 2
■ Easy to read. The style of the text is straightforward
Les Laboratoires Servier v Apotex Inc [2014] 3 WLR
1257 and accessible. The policy behind the law is explained,
McCracken v Smith, the MIB and Bell [2015] EWCA making comprehension of the law much easier.
Civ 380 ■ Well structured. In every chapter the text fre-
Coventry v Lawrence [2014] UKSC 13 quently reminds the reader of the main issues
Lawrence v Fen Tigers Ltd (No 2) [2014] UKSC 46 involved and the context of the particular subject
Environment Agency v Churngold Recycling Ltd [2014] being considered.
EWCA Civ 909 ■ Up to date in its treatment of the law. The text
Mohamud v Morrison Supermarkets plc [2014] EWCA reflects the changes made by recent cases, and leg-
Civ 116 islation and above all by EU law. The accompanying
Wood v Capital Bridging Finance Ltd [2015] EWCA websites will deal with changes to the law and keep
Civ 451 the text as up to date as possible.
xii Preface

Who should use this book? Study skills section


The study skills section is designed to give students a
This book is intended to be suitable for a wide variety
clear explanation of the skills they should apply when
of students who study Business Law; for example:
answering legal questions. The technique of answer-
■ Undergraduates who study one or more law mod- ing a problem-style question is considered in some
ules as part of their accountancy, business studies detail. I very much hope that this section will inspire
or business-related degrees. readers and allow them to see that legal assessments
■ Students on professional courses, such as ACCA, do not require rote learning and reproduction of facts,
CIMA, ILEX, ICAEW, IComA and ICSA. but do invite evaluation, analysis and application of
■ HNC/D students. conflicting principles.
■ Postgraduate students who need a thorough
grounding in business law. Multiple choice and summary questions
Each chapter ends with a selection of multiple choice
and summary questions. These questions are designed
Distinctive features to be intellectually demanding and to give the reader
Clear structure the chance to apply the law contained in the preced-
The book is very clearly structured. The text in each ing chapter to problem situations. The answers to the
chapter is broken up with several sets of ‘Test your questions can be found in the Instructor’s Manual,
understanding’ questions. These are designed to keep which is available to lecturers.
the reader firmly focused on the main issues with
Selected further readings
which the text deals. ‘Key Points’ at the end of each
At the end of the book there is a short bibliography,
chapter have the same aim. The text is detailed, but
suggesting further reading for those who want to
the reader is frequently reminded of the context and
know more about a particular subject area.
structure of the material.
Table of cases

Cases that have received detailed treatment in case summary boxes are indicated in bold in the case name
and in the appropriate page number

A v UK (2009) 49 EHRR 29 34 Annacott Holdings Ltd, Re [2012] EWCA Civ 998 539
Aas v Benham [1891] 2 Ch 244; (1891) 65 LT 25, CA Andrews Bros Ltd v Singer & Co. Ltd [1934] 1 KB
428 17, 103 LJKB 90; [1933] All ER Rep 479, 150 LT
Abdulla v Birmingham City Council [2012] UKSC 47; 172, 50 TLR 33, CA 130
[2013] 1 All ER 649 580, 632 Andrews v Hopkinson [1957] 1 QB 229; [1956] 3
Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ WLR 732; [1956] 3 All ER 422 118, 404
348; [2000] All ER (D) 2436, CA 345, 346 Anglia Television Ltd v Reed [1972] 1 QB 60; [1971]
Adams v Cape Industries plc [1990] Ch 433; [1990] 3 WLR 528; [1971] 3 All ER 690 193–194
2 WLR 657; [1991] 1 All ER 929, CA 451, 453 Antaios Compania Neviera SA, The v Salen
Adams v Lindsell (1818) 1 B & Ald 681; [1818] 106 Rederierna AB [1985] AC 191; [1984] 3 All ER
ER 260 l, li, 70–71 229; [1984] 3 WLR 592 125, 192–193
Addis v Gramophone Co Ltd [1909] AC 488 597, 598 Anton Pillar KG v Manufacturing Processes Ltd
Adler v George [1964] 2 QB 7; [1964] 2 WLR 542; [1976] Ch 55; [1976] 1 All ER 779, CA 198–199
[1964] 1 All ER 628 12, 61, 129 Appleby v Myers (1867) LR 2 CP 651 182
Agriculturist Cattle Insurance Co, Baird’s Case (1870) Appleson v Littlewood (H) Ltd [1939] 1 All ER 464;
LR 5 Ch App 725; [1861–73] All ER Rep 1766 569 (1939) 83 SJ 236, CA 110
Air Studios (Lyndhurst) Ltd v Lombard North Central Arbuckle v Taylor (1815) 3 Dow 160; [1815] 3 ER
Plc [2012] EWHC 3162 (QB); [2013] 1 Lloyd’s Rep 1023, HL 434
63 280 Archer v Stone (1898) 78 LT 34 304
Albert v Motor Insurers’ Bureau [1971] 3 WLR 291; Arcos Ltd v Ronaasen (EA) & Son [1933] AC 470;
[1971] 2 All ER 1345; [1972] RTR 230, HL 91 91 [1933] All ER Rep 646, HL 172 213–214
Alcan Extrusions v Yates [1996] IRLR 327, EAT 594, Armagas Ltd v Mundogas SA, The Ocean Frost [1986] AC
601 717; [1986] 2 All ER 385; [1986] 2 WLR 1063 299
Alcock v Chief Constable of South Yorkshire Police Armour v Thyssen Edelstahlwerke AG [1990] 3 All ER
[1991] 3 WLR 1057; [1991] 4 All ER 907 327 481; [1990] 3 WLR 810, HL 257, 259
Aldridge v Johnson (1857) 7 El & Bl 885; (1857) 26 Armstrong v Jackson [1917] 2 KB 822; [1916–17] All
LJQB 296 208 ER Rep 1117 307
Al-Khawaja and Tahery v United Kingdom (2009) 49 Asfar & Co Ltd v Blundell [1896] 1 QB 123; [1896]
EHRR 1 33, 34 65 LJ QB 138, CA 249
Allcard v Skinner (1887) 36 ChD 145; [1887] 56 LJ Ashbury Railway Carriage and Iron Co. Ltd v Riche
Ch 1052 162 (1875) LR 7 HL 653; [1874–80] All ER Rep 2219,
Allen v Gulf Oil Refining Ltd [1981] 2 WLR 188; HL 484
[1981] 1 All ER 353; (1981) 125 SJ 101, HL 357 Ashford v Thornton (1818) 1 B & A 405 2
Aluminium Industrie Vaasen BV v Romalpa Ashington Piggeries Ltd v Christopher Hill Ltd
Aluminium Ltd [1976] 1 WLR 676; [1976] 2 All [1972] AC 441; [1971] 2 WLR 1051; [1971] 1 All
ER 552, CA 258 ER 847, HL 220
Anangel Atlas Compania Naviera SA v Ishikawajima Atlas Express Ltd v Kafco (Importers and
Harima Heavy Industries Co Ltd [1990] 1 Lloyd’s Distributors) Ltd [1989] QB 833; [1989] 3 WLR
Rep 167 308 389; [1989] 1 All ER 641 160
xiv  Table of cases

Attorney-General v Blake (Jonathan Cape Ltd) Benton v Campbell, Parker & Co Ltd [1925] 2 KB
[2001] 1 AC 268 (HL); [2000] 3 WLR 625; [2000] 410 287
4 All ER 385, HL 200 Bertram Armstrong and Co v Godfrey (1830) 1 Kn
Attorney General v PYA Quarries Ltd (No.1) [1957] 2 381 306
QB 169; [1957] 2 WLR 770; [1957] 1 All ER 894 357 Beswick v Beswick [1968] AC 58; [1967] 3 WLR
Attorney-General for Hong Kong v Reid [1994] 1 AC 932; [1967] 2 All ER 1197, HL l, 96
324; [1994] 1 All ER 1; [1993] 3 WLR 1143, PC 310 Bettini v Gye (1876) 1 QB 183 123
Attorney General of Belize v Belize Telecom Ltd Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese
[2009] UKPC 11; [2009] 1 WLR 1988; [2009] Bus GmbH [2008] EWCA Civ 1257; [2009] QB 725;
LR 1316; [2009] 2 All ER 1127; 26 BHRC 578 120 [2009] 3 WLR 324 369
Attorney-General’s Reference (No. 1 of 1991) [1992] Birkenhead Co-operative Society v Roberts [1970] 1 WLR
3 WLR 432; [1992] 3 All ER 897 673 1497; [1970] 3 All ER 391; (1970) 114 SJ 703 668
Attwood v Lamont [1920] 3 KB 571 167 Birmingham City Council v Abdulla See Abdulla v
Attwood v Small (1838) 6 Cl & Fin 232; [1835–42] All Birmingham City Council
ER Rep 258 144 Bishop v Goldstein [2014] EWCA Civ 10 437
Automatic Self-Cleansing Filter Syndicate Co Ltd Bisset v Wilkinson [1927] AC 177, PC 141–142
v Cuninghame [1906] 2 Ch 34; (1906) 94 LT 651 Blackpool & Fylde Aero Club Ltd v Blackpool
482–483 Borough Council [1990] 1 WLR 1194; [1990] 3
Avery v Bowden (1856) 5 E & B 714; (1856) 119 ER All ER 25; [1990] 88 LGR 864 74
1119 183 Blankley v CMMCUH NHS Trust [2015] EWCA Civ 18
Azevedo v IMCOPA - Importacao [2013] EWCA Civ 305
364 68 Bloomsbury International Ltd v Sea Fish Industry
Authority [2011] UKSC 25; [2011] 1 WLR 1546 12
Badger v Ministry of Defence [2005] EWHC 2941 Blyth v Fladgate [1891] 1 Ch 337 434, 568
(QB); [2006] 3 All ER 173 340 Boardman v Phipps [1967] 2 AC 46; [1966] 3 WLR
Baker v Jones [1954] 1 WLR 1005; [1954] 2 All ER 1099; [1966] 3 All ER 721, HL 308, 428
553; (1954) 98 SJ 473 90, 165 Bocardo SA v Star Energy UK Onshore Ltd [2010]
Balfour v Balfour [1919] 2 KB 571; (1919) 121 LT UKSC 35; [2011] 1 AC 380; [2010] 3 WLR 654;
346, CA 91 [2010] 3 All ER 975 360
Bamford v Bamford [1970] Ch 212; [1969] 2 WLR Bolam v Friern Hospital Management Committee
1107; [1969] 1 All ER 969, CA 493 [1957] 1 WLR 582; [1957] 2 All ER 118 227, 331
Bank of Scotland v Qutb [2012] EWCA Civ 1661; Bolitho v City & Hackney Health Authority [1998] AC
[2013] CP Rep 14 305 232; [1997] 3 WLR 1151; [1997] 4 All ER 771, HL
Bannerman v White (1861) 10 CB NS 844; (1861) 227, 331
142 ER 685 116 Bolkiah v KPMG (a firm) [1999] 2 AC 222; [1999] 1
Barber v Somerset County Council; Hatton v Sutherland All ER 517; [1999] 2 WLR 215 309
[2002] EWCA Civ 76; [2004] WLR 1089 328 Bolton v Mahadeva [1972] 1 WLR 1009; [1972] 2
Barnett v Chelsea Hospital [1969] 1 QB 428; [1968] 2 All ER 132, CA 174
WLR 422; [1969] 1 All ER 428 334 Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078;
Barry v Davies (T/A Heathcote-Ball & Co) [2000] 1 [1951] 1 TLR 179, HL 332, 333
WLR 1962; [2001] 1 All ER 944, CA 72 Bolton Partners v Lambert (1889) 41 ChD 295;
Bartlett v Sidney Marcus Ltd [1965] 1 WLR 1013; (1889) 60 LT 587, CA 302
[1965] 2 All ER 753; (1965) 109 SJ 451, CA 215 Bond Worth, Re [1980] Ch 228; [1979] 3 WLR 629;
Bassano v Toft [2014] EWHC 377 385 [1979] 3 All ER 919 257
Beattie v E and F Beattie Ltd [1938] 3 All ER 214; Borden (UK) Ltd v Scottish Timber Products Ltd
[1938] P 99 525 [1981] Ch 25; [1979] 3 WLR 672; [1979] 3 All ER
Bell v Lever Bros [1932] AC 161; [1931] All ER Rep 961, CA 259
1, HL 153–154, 158 Borland’s Trustees v Steel Brothers & Co Ltd [1901] 1
Bence Graphics International Ltd v Fasson UK Ltd Ch 279 511
[1998] QB 87; [1997] 1 All ER 979; [1997] 3 WLR Boston Deep Sea Fishing and Ice Co v Ansell (1888)
205, CA 282–283 39 ChD 339; [1886–90] All ER Rep 6 589
Bentley v Craven (1853) 18 Beav 75 426, 427 Bourne, Re [1906] 2 Ch 427 437
Table of cases  xv

Bournemouth University Higher Education Corp v Brumder v Motornet Service and Repairs Ltd [2013]
Buckland [2010] EWCA Civ 121; [2011] QB 323; EWCA Civ 195; [2013] 1 WLR 2783; [2013] 3 All
[2010] 3 WLR 1664; [2010] 4 All ER 186; [2010] ER 412 448
IRLR 445 602, 603 BSS Group Plc v Makers (UK) Ltd [2011] EWCA Civ
Bowes v Shand (1877) 2 App Cas 455, HL 274 809 221
BP Exploration Ltd v Hunt (No 2) [1983] 2 AC 352; Buchler and another v Talbot and another [2004]
[1982] 1 All ER 925; [1982] 2 WLR 253 182 UKHL 9; [2004] 2 WLR 582; [2004] 1 All ER 1289,
Brace v Calder [1895] 2 QB 253; [1895–99] All ER HL 542
Rep 1196, CA 193 Buckland v Bournemouth University Higher
Bradbury v Morgan (1862) 1 H & C 249 82 Education Corp See Bournemouth University
Bradford v Robinson Rentals [1967] 1 All ER 267; Higher Education Corp v Buckland
[1967] 1 WLR 337; (1967) 111 SJ 33 640 Bunge & Co Ltd v Tradax England Ltd [1975] 2
Bramhill v Edwards [2004] EWCA Civ 403; [2004] Lloyd’s Rep 235 289
2 Lloyd’s Rep 653; [2004] All ER (D) 42 (Apr), CA Burton v Winters [1993] 1 WLR 1077; [1993] 3 All
217–218 ER 631, CA 357
Branwhite v Worcester Works Finance Ltd [1969] 1 AC Bushell v Faith [1970] AC 1099; [1970] 2 WLR 272;
552; [1968] 3 WLR 760; [1968] 3 All ER 104 157 [1970] 1 All ER 53, HL 475–476, 483, 532
Brasserie du Pêcheur SA v Germany [1996] ECR Butler Machine Tool Co Ltd v Ex-Cell-O
1–1029; [1996] QB 404; [1996] 2 WLR 506; Corporation Ltd [1979] 1 WLR 401; [1979] 1 All
[1996] All ER (EC) 301 25, 706 ER 965; (1977) 121 SJ 406, CA 83
Braymist Ltd v Wise Finance Co Ltd [2002] EWCA Civ Byrne & Co v Van Tienhoven & Co (1880) 5 CPD
127; [2002] Ch 273; [2002] 3 WLR 322; [2002] 2 344 80
All ER 333, CA 465 Byrne v Reid (1902) 87 LTR 507, CA 425
Brennan v Bolt Burden [2004] EWCA Civ 1017;
[2005] QB 303; [2004] 3 WLR 1321 142 C & P Haulage v Middleton [1983] 3 All ER 94;
Brinkibon Ltd v Stahag Stahl und [1983] 1 WLR 1461; (1983) 127 SJ 730 193
Stahlwarenhandelsgesellschaft mbH [1983] 2 AC CCSU v Minister for the Civil Service, See Council of
34; [1982] 2 WLR 264; [1982] 1 All ER 293, HL Civil Service Unions v Minister for the Civil Service
69, 77, 78 (GCHQ Case)
British Celanese v AH Hunt (Capacitors) Ltd [1969] 1 CIBC Mortgages plc v Pitt [1994] AC 200; [1993] 3
WLR 959; [1969] 2 All ER 1252 329 WLR 802; [1993] 4 All ER 433, HL 162
British Coal Corporation v Smith [1996] 3 All ER CTN Cash and Carry Ltd v Gallagher Ltd [1994] 4
97; (1996) 140 SJ LB 134; [1996] IRLR 404, All ER 714, CA 161
HL 628 Cable and Wireless plc v Muscat [2006] EWCA Civ
British Crane Hire Corporation Ltd v Ipswich Plant 220; [2006] ICR 975; [2006] IRLR 354 583
Hire Ltd [1975] QB 303; [1974] 2 WLR 856; Cablevision Ltd v Feetum [2005] EWCA Civ 1601;
[1974] 1 All ER 1054 122, 128 [2006] Ch 585; [2006] 3 WLR 427; [2006] 2 BCLC
British Fermentation Products Ltd v Compair Reavell 102 566
Ltd [1999] BLR 352; [1999] 2 All ER (Comm) 389, Cadbury Schweppes Ltd v Pub Squash Co Ltd [1981]
66 Con LR 1 132 1 WLR 193; [1981] 1 All ER 213; (1980) 125 SJ
British Railways Board v Herrington [1972] AC 877; 96, PC 419
[1972] 2 WLR 537; [1972] 1 All ER 749, HL 348 Cairns v Modi [2012] EWCA Civ 1382; [2013] 1WLR
British Railways Board v Pickin [1974] AC 765; 1015 339, 364
[1974] 2 WLR 208; [1974] 1 All ER 609 8 Cambridge Water Co Ltd v Eastern Counties
Brogden v Metropolitan Railway (1877) 2 AC 666, Leather plc [1994] 2 AC 264; [1994] 2 WLR 53;
HL 85 [1994] 1 All ER 53 356, 359
Brooks v Ladbroke Lucky Seven Entertainment Caparo Industries plc v Dickman [1990] 2 AC 605;
(1977) WL 442118 633 [1990] 2 WLR 358; [1990] 1 All ER 568, HL 325,
Broome v Cassell & Co Ltd [1972] AC 1027; [1972] 1 343, 453, 498
All ER 801; [1972] 2 WLR 645; 116 SJ 199 20 Capper Pass Ltd v Lawton [1997] QB 852; [1977]
Brown v Raphael [1958] Ch 636; [1958] 2 WLR 647; 2 WLR 26; [1977] 2 All ER 11; [1977] ICR 83,
[1958] 2 All ER 79, CA 170 HL 629
xvi  Table of cases

Capps v Miller [1989] 2 All ER 333; [1989] 1 WLR Claimants appearing on the Register of the Corby
839; (1989) 133 SJ 1134 340 Group Litigation v Corby Borough Council [2008]
Car and Universal Finance Co Ltd v Caldwell [1965] EWCA Civ 463; [2009] QB 335; [2009] 4 All ER
1 QB 525; [1964] 1 All ER 290; [1964] 2 WLR 600 44 358
146, 148, 263, 265 Claridge v Daler Rowney Ltd [2008] ICR 1267;
Carlill v The Carbolic Smoke Ball Company [2008] IRLR 672; [2008] All ER (D) 435 (Jul);
[1893] 1 QB 256, CA lii, liii, 7, 17, 18, 67, 68, UKEAT/0188/08, EAT 608
78, 81, 92, 111 Clarke v Dickson (1858) EB & E 148 148
Carlos Federspiel & Co SA v Charles Twigg & Co Ltd Clea Shipping Corp v Bulk Oil International Ltd
[1957] 1 Lloyd’s Rep 240 251 (The Alaskan Trader) [1984] 1 All ER 129; [1983]
Carmarthenshire CC v Lewis [1955] AC 549; [1955] 2 2 Lloyd’s Rep 645 184
WLR 517; [1955] 1 All ER 565, HL 335 Clegg v Andersson [2003] EWCA Civ 320; [2003] 1
Carmichael v National Power Plc [1999] 1 WLR All ER (Comm); [2003] 2 Lloyd’s Rep 32, CA 218,
2042; [1999] 4 All ER 897 582 284–285
Caterpillar Ltd v Holt [2013] EWCA Civ 1232 280 Clements v London and North Western Railway
Cavendish Square Holdings BV v Beavis [2015] Company [1894] 2 QB 482, CA 108
UKSC 67 194–195 Clough Mill Ltd v Geoffrey Martin [1985] 1 WLR
Catholic Child Welfare Society v Various Claimants 111; [1984] 3 All ER 982; (1984) 128 SJ 850, CA
and the Institute of the Brothers of the 256–257
Christian Schools See Various Claimants v Institute of Colley v Overseas Exporters Ltd [1921] 3 KB 302
the Brothers of the Christian Schools 280
Cavenagh v William Evans Ltd [2012] EWCA Civ 697; Collier v Sunday Referee Publishing Ltd [1940] 2 KB
[2013] 1 WLR 238; [2012] 5 Costs LR 835; [2012] 647 590
ICR 1231 310 Collier v Wright [2007] EWCA Civ 1329; [2008] 1
Central London Property Trust Ltd v High Trees WLR 643 104
House Ltd [1947] KB 130; [1956] 1 All ER 256; Collins v Godefroy (1813) 1 B & Ad 950 98, 101
[1947] LJR 77 103, 104, 105 Collins Stewart Ltd v Financial Times Ltd [2005]
Century Insurance Co v Northern Ireland Road EWHC 262; (QB); [2006] STC 100; [2005] All ER
Traffic Board [1942] AC 509, HL 366 (D) 393 (Feb) 448
Chandler v Cape plc [2012] 1 WLR 3111 453, 454 Commissioners of Customs and Excise v Barclays
Chapelton v Barry UDC [1940] 1 KB 532, CA Bank plc [2006] UKHL 28; [2006] 4 All ER 256;
127–128, 138 [2006] 2 All ER (Comm) 831; [2006] 3 WLR 1, HL
Chaplin v Hicks [1911] 2 KB 786, CA 191–192 323, 325, 329–330, 343
Chaplin v Leslie Frewin (Publishers) Ltd [1966] Ch Condor v The Barron Knights Ltd [1966] 1 WLR 87;
71; [1966] 2 WLR 40; [1965] 3 All ER 764, CA 108 (1966) 110 SJ 71 178
Chappell & Co Ltd v The Nestlé Co Ltd [1960] AC Const v Harris (1824) 37 ER 1191 422
87; [1959] 3 WLR 168; [1959] 2 All ER 701, HL 94 Conway v George Wimpey & Co Ltd [1951] 2 KB 266;
Charge Card Services Ltd, Re [1989] Ch 497; [1989] [1951] 1 All ER 363, CA 367
8 TR LR 86 406 Cooper v Phibbs (1867) LR 2 HL 149 153
Charles Rickards v Oppenheim [1950] 1 KB Co-operative Group (CWS) Ltd v Deborah Pritchard
616; [1950] 1 All ER 420; (1950) 94 SJ 161, [2011] EWCA Civ 329 361
CA 176, 274 Coroin Ltd, Re [2012] EWHC 2343 (Ch) 473
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] 1 AC
38; [2009] 1 AC 1101; [2009] 3 WLR 267; [2009] 884; [2008] 2 WLR 499; [2008] 2 All ER 943 326,
4 All ER 677 125 335
Chaudry v Prabhakar [1988] 3 All ER 718; (1988) Costa v ENEL [1964] ECR 585; [1964] CMLR 425 28
138 New LJ 172, CA 306–307, 343 Coughlan (JJ) Ltd v Ruparelia and others [2003]
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134; EWCA Civ 1057; [2003] 37 LS Gaz R 34; (2003)
[2004] 4 All ER 587; [2004] 3 WLR 927 334–335 The Times, 26 August, CA 430–432, 435
Chindove v William Morrisons Supermarket plc Council of Civil Service Unions v Minister for the Civil
UKEAT/0201/13/BA 602 Service (GCHQ Case) 1985] AC 374; [1985] 1 WLR
Christie v Davey [1893] 1 Ch 316 355 1174; [1984] 3 All ER 935; (1984) 128 SJ 837 59
Table of cases  xvii

Coventry v Lawrence [2015] UKSC 50 355, 357 Davison v Kent Meters Ltd [1975] IRLR 145 604
Coward v MIB [1963] 1 QB 359; [1962] 2 WLR 663; Daw v Intel Corp (UK) Ltd, sub nom Intel Corp (UK)
[1962] 1 All ER 531, CA 91 Ltd v Daw [2007] EWCA Civ 70; [2007] 2 All ER
Cox v Coulson [1916] 2 KB 177, CA 415–416 126, CA 328–329
Cozens v Brutus [1975] AC 854; [1972] 3 WLR 521; Dennant and Skinner v Collom [1948] 2 KB 164;
[1972] 2 All ER 1297 7 [1948] 2 All ER 29; [1948] LJR 1567 286
Craddock Brothers v Hunt [1923] 2 Ch 136; [1923] Derbyshire v St Helens Metropolitan Borough Council
All ER Rep 394, CA 199 [2007] UKHL 16; [2007] 3 All ER 81; [2007] ICR
Craven-Ellis v Canons Ltd [1936] 2 KB 403; [1936] 841, HL 626
2 All ER 1066, CA 481 Derry v Peek (1889) 14 App Cas 337, HL 145, 151
Credit Lyonnaise Bank Netherland NV v Export Devonald v Rosser & Sons [1906] 2 KB 728 590
Credits Guarantee Department [2000] 1 AC Dick Bentley Productions Ltd v Harold Smith
486; [1999] 2 WLR 540; [1999] 1 All ER 929, Motors Ltd [1965] 2 All ER 65; [1965] 1 WLR
HL 368 623, 109 SJ 329, CA 116
Criterion Properties plc v Stratford UK Properties LLC Dickinson v Dodds (1876) 2 Ch D 463, CA 79–80, 81
[2004] UKHL 28; [2004] 1 WLR 1846; [2006] 1 Dimond v Lovell [2002] 1 AC 384; [2000] 2 All ER
BCLC 729 299, 483 897, HL 376, 377, 380, 386
Crocs Europe BV v Anderson (t/a Spectrum Agencies Director General of Fair Trading v First National Bank
[2012] EWCA Civ 1400; [2013] 1 Lloyd’s Rep 1 plc [2001] UKHL 52; [2002] 1 AC 481; [2001] 2
309 All ER (Comm) 1000; [2002] 1 All ER 97 134
Croft v Day (1843) 7 Beav 84 419 Director of Public Prosecution v Bignell [1988] 1 Cr
Cundy v Lindsay (1878) 3 App Cas 459, HL 155, 156, App R 1; (1997) 161 JP 541, DC 673
157 Director of Public Prosecution v Lennon [2006]
Currie v Misa (1875) LR 10 Exch 153; 44 LJ Ex 94; 23 EWHC 1201 (Admin); 170 JP 532; 170 JPN 934;
WR 450, Ex Ch 92 [2006] All ER (D) 147 (May), DC 674
Curtis v Chemical Cleaning and Dyeing Co [1951] Dobson v Thames Water Utilities [2009] EWCA Civ
1 KB 805; [1951] 1 All ER 631; [1951] 1 TLR 452, 28; [2009] 3 All ER 319, CA 356
CA 127 Don King Productions Inc v Warren [2000] Ch 291;
Cusack v Harrow LBC [2013] UKSC 40; [2013] 1 WLR [1999] 3 WLR 276; [1999] 2 All ER 218, CA 426,
2022; [2013] 4 All ER 97 14 428
Cutter v Powell (1756) 6 TR 320 173, 174 Donoghue v Stevenson [1932] AC 562; (1932) 20
MLR 1; (1932) 86 LQR 454; (1932) 103 SJ 143,
D v UK (1997) 24 EHRR 423, ECtHR 31 HL 324
D & C Builders v Rees [1966] 2 QB 617; [1966] 2 Donovan v Invicta Airways Ltd [1970] 1 Lloyd’s Rep
WLR 288; [1965] 3 All ER 837, CA 103, 104, 105 486; [1969] 2 Lloyd’s Rep 413, CA 587
D & H Bunny Ltd v Atkins [1961] VLR 31 433 Doughty v Turner Manufacturing Co [1964] 1 QB
Dacas v Brook Street Bureau (UK) Ltd [2004] 518; [1964] 2 WLR 240; [1964] 1 All ER 98, CA
EWCA Civ 217, IRLR 190, CA 583 339
Dalgleish v Lothian and Borders Police Board 1992 Doyle v Olby [1969] 2 QB 158; [1969] 2 WLR 673;
SLT 721 590 [1969] 2 All ER 119, CA 149
Darby v Law Society of England and Wales (2008) Drummond v Van Ingen (1887) 12 App Cas 284 223
152 (37) SJLB 29; [2008] All ER (D) 129 (Aug), Dryden v Greater Glasgow Health Board [1992]
UKEAT/2008/0447/07, EAT 594 IRLR 469 591–592
Daulia Ltd v Four Millbank Nominees [1978] Ch 231; Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR
[1978] 2 WLR 621; [1978] 2 All ER 557 80 1913;[2002] UKHL 48; [2003] 2 AC 366; [2003] 1
Daventry DC v Daventry and District Housing Ltd All ER 97, HL 368, 434, 435
[2011] EWCA Civ 1153; [2012] 1 WLR 1333; Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd
[2012] 2 All ER (Comm) 142 199 [1915] AC 847, HL 95
Davis v Davis [1894] 1 Ch 393 415, 416 Duomatic Ltd, Re [1969] 2 Ch 365; [1969] 2 WLR
Davis Contractors Ltd v Fareham UDC [1955] 1 QB 114; [1969] 1 All ER 161 516
302; [1956] 3 WLR 37; [1956] 2 All ER 145, HL Durant v The Financial Services Authority [2003]
179, 202, 203 EWCA Civ 1746; [2004] FSR 28 699
xviii  Table of cases

Durkin v DSG Retail Ltd [2014] UKSC 21 390 Evans & Son (Portsmouth) Ltd v Andrea Merzario
Dyster v Randall [1926] Ch 932 304 Ltd [1976] 1 WLR 1078; [1976] 2 All ER 930;
(1976) 120 SJ 734, CA 129
Earl of Oxford’s Case (1615) 1 Rep Ch 1 5 Everett v Williams (1725) noted in [1899] 1 QB 826 164
Eastern Distributors Ltd v Goldring [1957] 2 Ewing v Buttercup Margarine Co Ltd [1917] 2 Ch 1,
QB 600; [1957] 3 WLR 237; [1957] 2 All ER 525, CA 467–468
CA 262
Eaton Ltd v Nuttall [1977] 1 WLR 549; [1977] 3 All Fairchild v Glenhaven Funeral Services Ltd and others
ER 1131; [1977] IRLR 71 629 [2002] UKHL 22; [2003] 1 AC 32 336, 347
Ebrahimi v Westbourne Galleries [1972] 2 Falcke v Gray (1859) ER 4 Drew 651 5, 196–197
WLR 1289; [1972] 2 All ER 492, HL 539–540, Famatina Development Corporation Ltd, Re [1914] 2
551, 569 Ch 271 590
Ecay v Godfrey (1947) 80 Lloyd’s Rep 286 116 Farley v Skinner [2001] UKHL 49; [2002] 2 AC 732;
Eco 3 Capital Ltc v Ludsin Overseas Ltd See Ludsin [2001] 3 WLR 899; [2001] 4 All ER 801, HL 192
Overseas Ltd v Eco3 Capital Ltd Farquharson Bros and Co v King (C) & Co [1902] AC
Edgington v Fitzmaurice (1885) 29 Ch D 476 142 325 262
Egan v Motor Services (Bath) Ltd [2007] EWCA Farstad Supply A/S See Enviroco Ltd v Farstad Supply
Civ 1002; [2008] 1 WLR 1589; [2008] 1 All ER Felthouse v Bindley (1862) 11 CBNS 869 69–70
1156 219 Fercometal SARL v MSC Mediterranean Shipping Co
Egg Stores (Stamford Hill) Ltd v Leibovici [1977] ICR SA, The Simona [1989] AC 788; [1988] 2 All ER
260; [1976] IRLR 576 596 742; [1988] 3 WLR 200, HL 183
Ehrari v Curry [2006] EWHC 1319 (QB); [2007] All Ferguson v John Dawson & Partners (Contractors)
ER (D) 258 (Feb) 340, 604 Ltd [1976] 1 WLR 346; [1976] 3 All ER 817;
Enderby v Frenchay Health Authority [1994] 1 All ER (1976) 120 SJ 603, CA 583–584
495; [1993] IRLR 591; [1994] 1 CEC 3, ECJ 631 FHR European Ventures Ltd v Cedar Capital Partners
Energy Weald Basin Ltd v Bocardo SA [2010] LCC [2015] 1 AC 250 309
UKSC35; [2011] 1 AC 380; [2010] 3 WLR 654; Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe
[2010] 3 All ER 975 360 Barbour Ltd [1943] AC 32 179
Enichem Anic SpA v Ampelos Shipping Co Ltd, The Financings Ltd v Baldock [1963] 2 QB 104; [1963] 2
Delfini [1990] 1 Lloyd’s Rep 252; (1989) The WLR 359; [1963] 1 All ER 443, CA 400
Times, 11 August 288 First Energy (UK) Ltd v Hungarian International Bank
Entores Ltd v Miles Far East Corporation [1955] 2 Ltd [1993] 2 Lloyd’s Rep 194; [1993] BCLC 1409;
QB 327; [1955] 3 WLR 48; [1955] 2 All ER 493, [1993] BCC 533, CA 299
CA 69, 77 Firsteel Products Ltd v Anaco Ltd (1994) The Times,
Environment Agency v Churngold Recycling Ltd 21 November 448
[2014] EWCA Civ 909 361 Fisher v Bell [1961] 1 QB 394; [1960] 3 WLR 919;
Enviroco Ltd v Farstad Supply [2011] UKSC 16; [1960] 3 All ER 731 68
[2011] 1 WLR 921; [2011] 3 All ER 451 13, 511 Fisher v Brooker [2009] UKHL 41; [2009] 1 WLR
Equal Opportunities Commission v Secretary of State 1764; [2009] 4 All ER 789 200
for Employment [1995] 1 AC 1; [1994] 2 WLR Fitch v Dewes [1921] 2 AC 158, HL 166
409; [1994] 1 All ER 110 28 Fletcher v Krell (1873) 42 LJ QB 55 143
Erlanger v New Sombrero Phosphate Co (1878) 3 App Foakes v Beer (1884) 9 App Cas 605, HL 100, 102,
Cas 1218 148 103, 104, 176
Errington v Errington & Woods [1952] 1 KB 290; Folkes v King [1923] 1 KB 282 261
[1952] 1 All ER 149; [1972] 1 TLR 231, CA 80 Fomento (Sterling Area) Ltd v Selsdon Fountain Pen
Esso Petroleum Co Ltd v Commissioners of Co Ltd [1958] 1 All ER 11; [1958] 1 WLR 45;
Customs and Excise [1976] 1 WLR 1; [1976] 1 All [1958] RPC 8 497–498
ER 117 89, 142 Foss v Harbottle (1843) 2 Hare 461 532, 536, 544,
Esso Petroleum Co Ltd v Harper’s Garage (Stourport) 546, 548, 566, 724
Ltd [1968] AC 269; [1967] 2 WLR 281; [1967] 1 Foster v Mackinnon (1869) LR 4 CP 704 159
All ER 699 166 Francovich and Bonifaci v Republic of Italy [1991]
Esso Petroleum Co Ltd v Mardon [1976] QB 801; ECR I-5357; [1993] 2 CMLR 66; [1992] IRLR 84;
(1976) 2 Build LR 82, CA 118 [1995] ICR 722, ECJ 25, 706
Table of cases  xix

Fraser v HLMAD Ltd [2006] EWCA Civ 738; [2007] Hadley v Baxendale (1854) 9 Exch 341 188 189, 191,
1 All ER 383; [2006] ICR 1395; [2006] IRLR 194, 196, 201, 280, 282, 305, 317, 320, 323, 400,
687 598 597, 711
Freeman & Lockyer (a firm) v Buckhurst Park Halbot v Lens [1901] 1 Ch 344 305
Properties (Mangal) Ltd [1964] 2 QB 480; Haley v London Electricity Board [1965] AC 778;
[1964] 2 WLR 618; [1964] 1 All ER 630, CA 297, [1964] 3 WLR 479; [1965] 3 All ER 185, HL 351
480, 483 Hall v Lorimer [1994] 1 WLR 209; [1994] 1 All ER
French v Chief Constable of Sussex Police [2006] 250; [1994] IRLR 171, CA 582
EWCA Civ 312; [2006] All ER (D) 407 (Mar) 327 Halpern v Halpern (No 2) [2007] EWCA Civ 291;
Frost v Knight (1872) LR 7 Exch 111 183 [2007] 3 All ER 478; [2007] 3 WLR 849 160
Hands v Simpson, Fawcett & Co Ltd (1928) 44 TLR
GE Capital Bank Ltd v Stephen Rushton [2005] EWCA 295 170
Civ 1556; [2006] 3 All ER 865; [2006] 1 WLR 899, Hare v Schurek [1993] CCLR 47; 137 SJ 129, CA 381
CA 265 Harlingdon & Leinster Enterprises Ltd v
Gardiner v Newport County Council Borough [1974] Christopher Hull Fine Art Ltd [1991] 1 QB 564;
IRLR 262 605 [1990] 3 WLR 13; [1990] 1 All ER 737 213
Garner v Murray [1904] 1 Ch 57 439 Harris v Nickerson (1873) LR 8 QB 286 72
Geddling v Marsh [1920] 1 KB 668 215 Harrison v Black Horse Ltd [2011] EWCA Civ 1128;
Gilford Motor Co Ltd v Horne [1933] Ch 935, CA [2012] ECC 7; [2012] Lloyd’s Rep IR 521 397
451, 452 Harrisons & Crossfield Ltd v LNW Railway Company
Gisda Cyf v Barratt [2010] UKSC 41; [2010] 4 All ER [1917] KBD 755 303
851; [2010] IRLR 1073 600 Hartley v Ponsonby (1857) 7 E & B 872 99–100, 101
Glasbrook Bros v Glamorgan County Council Hartog v Colin & Shields [1939] 3 All ER 566 158
[1925] AC 270, HL 98, 101 Harvela Investments Ltd v Royal Trust Co of Canada
Godley v Perry [1960] 1 All ER 36; [1960] 1 WLR 9 Ltd [1986] AC 207, HL73
224, 242, 713 Harvey v Plymouth City Council [2010] EWCA Civ
Golden Ocean Group Ltd v Salgaocar Mining 860; [2010] NPC 89 347
Industries Pvt Ltd [2012] 3 All ER 842 107 Hatton v Sutherland See Barber v Somerset County
Goldsoll v Goldman [1915] 1 Ch 292, CA 166–167 Council
Grainger and Son v Gough [1896] AC 325 67 Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18;
Granada Group Ltd v Ford Motor Co Ltd [1972] FSR [2006] Lloyd’s Rep IR 307; [2006] IRLR 817 365
103 371 Haynes v Harwood [1935] 1 KB 146, CA 341
Grant v Australian Knitting Mills Ltd [1936] AC 85, Hayward v Cammell Laird Shipbuilders Ltd [1988]
PC 219–220, 221 AC 894; [1988] 2 WLR 1134; [1988] 2 All ER 257,
Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 AC HL 630
1339; [2009] 3 WLR 167; [2009] 4 All ER 81 341 Healy v Howlett and Sons [1917] 1 KB 337 252, 254
Great Northern Railway Company v Witham Hedley Byrne & Co Ltd v Heller and Partners Ltd
(1873) LR 9 CP 16 73 [1963] 3 WLR 101; [1963] 2 All ER 575, HL 330,
Great Peace Shipping Ltd v Tsavliris Salvage 342–343
International Ltd [2002] EWCA Civ 1407; [2002] Heilbut, Symons & Co v Buckleton [1913] AC 30 117
4 All ER 689; [2002] 3 WLR 1617; [2002] 2 All ER Helby v Mathews [1895] AC 471 209
(Comm) 999, CA 152, 154, 158, 177 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549;
Green v Bannister [2003] EWCA Civ 1819; [2003] [1967] 3 WLR 1408; [1967] 3 All ER 98, CA 297, 298
All ER (D) 279 (Dec) CA 340 Henderson v Merret Syndicates Ltd [1995] 2 AC 145;
Greer v Downs Supply Co [1927] 2 KB 28 304 [1994] 3 WLR 761; [1994] 3 All ER 506 323
Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176; Henthorn v Fraser [1892] 2 Ch 27, CA 71
[2005] 4 All ER 812; [2005] 2 WLR 268 18, 192, Herne Bay Steamboat Co v Hutton [1903] 2 KB 683,
336–337 CA 178–179, 203
Griffiths v Peter Conway Ltd [1939] 1 All ER 685, Heydon’s Case (1584) 3 Co Rep 7a 12
CA 220 Hickman v Kent or Romney Marsh Sheep-Breeder’s
Grimes (John) Partnership Ltd v Gubbins [2013] Association [1915] 1 Ch 881 524–525
EWCA Civ 37; [2013] BLR 126 190 High Table Ltd v Horst [1997] IRLR 513; (1997)
Guidezone Ltd, Re [2000] 2 BCLC 321, Ch D 538 94(28) LSG 25; 141 SJ LB 161, CA 613
xx  Table of cases

Highway Foods Ltd, Re [1995] BCLC 209; [1995] ICI v Commission (Dyestuffs) [1972] ECR 619 676
BCC 271 265 ICI Ltd v Shatwell [1965] AC 656; [1964] 3 WLR 329;
HIH Casualty & General Insurance Ltd v Chase [1964] 2 All ER 999 341, 641
Manhattan Bank [2003] UKHL 6; [2003] 1 All ER Iceland Frozen Foods v Jones [1983] ICR 17; [1982]
(Comm) 349; [2003] 2 Lloyd’s Rep 61 122 IRLR 439; (1982) 79 LS Gaz 1257 607
Hill v Fearis [1905] 1 Ch 466 438 Ide v ATB Sales Ltd [2008] EWCA Civ 424; CA 344
Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 Iesini v Westrip Holdings Ltd [2009] EWHC 2526
WLR 705; [1961] 1 All ER 74 366 (Ch); [2010] BCC 420 535
Hivac Ltd v Park Royal Scientific Instruments Co Igbo v Johnson, Matthey Chemicals Ltd [1986] IRLR
[1946] 1 All ER 350, CA 587 215; [1986] ICR 505; (1986) 130 SJ 524 596
Hochster v De La Tour (1853) 2 E & B 678 182–183, Imageview Management Ltd v Jack [2009] EWCA
184 Civ 63; [2009] 2 All ER 666; [2009] 1 Lloyd’s Rep
Hodson v Hodson [2009] EWCA Civ 1042; [2010] 436 307–308
PNLR 8 413, 436 Inco Europe Ltd v First Choice Distribution [2000] 1
Hoenig v Isaacs [1952] 2 All ER 176; [1952] 12 TLR WLR 561; [2000] 2 All ER 109 13, 626
1360, CA 174 India v India Steamship Co Ltd (The Indian Endurance
Hogar Estates Ltd v Shebron Holdings Ltd (1980) and The Indian Grace) (No.2) [1998] AC 878;
101 DLR (3d) 509 427 [1997] 3 WLR 818; [1997] 4 All ER 380; [1998] 1
Hollier v Rambler Motors Ltd [1972] 2 QB 71; [1972] Lloyd’s Rep 1 105
2 WLR 401; (1971) 116 SJ 158 128 Infopaq International A/S v Danske Dagblades
Holwell Securities v Hughes [1974] 1 WLR 155; [1974] Forening (C-5/08) [2012] Bus LR 102; [2009] ECR
1 All ER 161; (1973) 117 SJ 912, CA l, li, lii, 71 I-6569; [2010] FSR 20 687
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Ingram v Little [1961] 1 QB 31; [1960] 3 WLR 504;
Kaisha Ltd [1962] 2 QB 26; [1962] 2 WLR 474; [1960] 3 All ER 332 156
[1962] 1 All ER 474, CA 123–124 Inland Revenue Commissioners v Hinchy [1960] AC
Hopkins v Tanqueray (1854) 15 CB 130 117 748; [1960] 2 WLR 448; [1960] 1 All ER 505 11
Horton v Sadler [2006] UKHL 27; (2006) [2007] 1 Intel Corp (UK) Ltd v Daw See Daw v Intel Corp (UK)
AC 307; [2006] 2 WLR 1346; [2006] 3 All ER 1177 Ltd
15, 350 International Sports Co Ltd v Thomson [1980] IRLR
Hotel Cipriani Srl v Cipriani (Grosvenor Street) Ltd 340 604
[2010] EWCA Civ 110 697 Investors Compensation Scheme Ltd v West Bromwich
Hotson v East Berkshire Health Authority [1987] AC Building Society [1998] 1 WLR 896; [1998] 1 All
750; [1987] 3 WLR 232; [1987] 2 All ER 909, HL 336 ER 98; [1998] 1 BCLC 493 120, 125
Household Fire Insurance Co v Grant (1879) 4 Ex D Iqbal v London Transport Executive [1973] KIR 329;
216, CA 70 (1973) The Times, 7 June 366
Howard v Pickford Tool Co [1951] 1 KB 417 183 Ireland v UK (1978) 2 EHRR 25, ECtHR 31
HSBC Bank v Madden See Post Office v Foley Irvine v Irvine [2006] EWHC 1875 (Ch); [2006] All
Hubbard v Vosper [1972] 2 QB 84; [1972] 2 WLR ER (D) 329 (Jul) 538–539, 569
389; [1972] 1 All ER 1023, CA 691 It’s a Wrap (UK) Ltd v Gula [2006] EWCA Civ 544;
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB [2006] 2 BCLC 634; [2006] 21 LS Gaz R 24,
348; [1957] 2 WLR 948; [1957] 2 All ER 229 641 CA 529
Hughes v Lord Advocate [1963] AC 837; [1963] 2
WLR 779; [1963] 1 All ER 705, HL 338–339 J & H Ritchie Ltd v Lloyd Ltd [2007] UKHL 9; [2007]
Hughes v Metropolitan Railway (1877) 2 App Cas 2 All ER 353; [2007] 1 All ER (Comm) 987; [2007]
439, HL 103, 104 1 WLR 670 285
Hunter v Canary Wharf Ltd [1997] AC 655; [1997] JEB Fasteners Ltd v Marks, Bloom & Co [1983] 1 All
2WLR 684; [1997] 2 All ER 426, HL 354, 356 ER 583; [1982] Com LR 226 498
Hutton v Warren (1836) 1 M & W 466 122, 123 Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468;
Hyde v Wrench (1840) 3 Beav 334 71, 81 [1975] 3 All ER 92; (1975) 119 SJ 759, CA 95
Hyde Park Residence Ltd v Secretary of State for the Jackson v The Union Marine Insurance Co. Ltd
Environment, Transport and the Regions (2000) P (1874) LR 10 CP 125 180–181
& CR 419; [2000] 1 PLR 85; (2000) The Times, 14 James v Eastleigh Borough Council [1990] 2 AC 751;
March, CA 10 [1990] 3 WLR 55; [1990] 2 All ER 607, HL 624
Table of cases  xxi

James v London Borough of Greenwich [2008] EWCA Khan v Mia [2000] 1 WLR 2123; [2001] 1 All ER 20;
Civ 35; [2008] ICR 545, CA 583 [2001] 1 All ER (Comm) 282, HL 413
Janata Bank v Ahmed [1981] IRLR 457, CA 588 Kings Norton Metal Co Ltd v Edridge, Merrett & Co
Jarvis v Swan Tours Ltd [1973] 1 QB 233; [1972] 3 Ltd (1897) 14 TLR 98, CA 156
WLR 954; [1973]1 All ER 71, CA 192 Kingston Cotton Mill Co (No 2), Re [1896] 2 Ch 279,
Jessemey v Rowstock Ltd [2014] EWCA Civ 185 626 CA 497
Jet2.com Ltd v Blackpool Airport Ltd [2012] EWCA Kleinwort Benson Ltd v Malaysia Mining
Civ 417; [2012] 2 All ER (Comm) 1053 76 Corporation Bhd [1988] 1 WLR 379; [1988] 1
Jewson Ltd v Kelly [2003] EWCA Civ 1030; [2004] 1 All ER 714; (1988) 132 SJ 497, CA 89–90
Lloyd’s Rep 505; [2003] All ER (D) 470 (Jul) 218, Knight Frank LLP v Du Haney [2011] EWCA Civ
220–221 404 305
John McCann & Co v Pow [1975] 1 All ER 129; Koufos v Czarnikow (C) Ltd, The Heron 11 [1967]
[1974] 1 WLR 1643, CA 307 1 AC 350; [1967] 3 WLR 1491; [1967] 3 All ER
John Taylors v Masons and Wilsons [2001] EWCA 686, HL 189
Civ 2106; All ER (D) 381 (Nov), CA 428 Krell v Henry [1903] 2 KB 740, CA 178, 202
Johnson Underwood Ltd v Montgomery [2001] Kulkarni v Manor Credit (Davenham) Ltd [2010]
EWCA Civ 318 582 EWCA Civ 69; [2010] A ll ER (D) 120 (Feb) 247
Johnston v NEI International Combustion Ltd; Kwei Tek Chao v British Traders and Shippers Ltd
Rothwell v Chemical and Insulating Co Ltd; [1954] 2 QB 459; [1954] 2 WLR 365; [1954] 1 All
Topping v Benchtown Ltd (formerly Jones Bros ER 779 292
Preston Ltd), sub nom Grieves v FT Everard &
Sons Ltd [2007] UKHL 39; [2007] 4 All ER 1047; Lambert v Co-op Insurance Society Ltd [1975] 2
[2007] 3 WLR 876, HL 326 Lloyd’s Rep 485, CA 143–144
Jones v Gallagher [2004] EWCA Civ 10; [2004] WL Lampleigh v Brathwaite (1615) Hob 105 2, 93
62087, CA 285, 286 Latimer v AEC Ltd [1953] AC 643; [1953] 3 WLR 259;
Jones v Link Financial Ltd [2012] EWHC 2402 (QB); [1953] 2 All ER 449 641
[2013] 1 WLR 693; [2013] 1 All ER (Comm) 572 Lauritzen (J) AS v Wijsmuller BV (The Super
376 Servant Two) [1990] 1 Lloyd’s Rep 1, CA 180
Jones v Lipman [1962] 1 All ER 442; [1962] 1 WLR Law v Law [1905] 1 Ch 140 427
832; 106 SJ 531, Ch D 451, 452 Lawrence v Fen Tigers Ltd (No 2) [2014] UKSC 46
Jones v Padavatton [1969] 1 WLR 328; [1969] All 356
ER 616; (1969) 112 SJ 95, CA 90–91 Leach v Office of Communications [2012] EWCA Civ
Joyce v O’Brien [2013] EWCA Civ 546; [2013] Lloyd’s 959; [2012] ICR 1269; [2012] IRLR 839 606
Rep IR 523 341 Leaf v International Galleries [1950] 2 KB 86;
[1950] 1 All ER 693, CA 147
KC v MGN Ltd [2013] EWCA Civ 3 364 Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374;
Kanchenjunga, The [1990] 1 Lloyd’s Rep 391 184 [1990] 2 WLR 1173; [1990] IRLR 236, PC; [1990]
Kay v ITW Ltd [1967] 3 WLR 695; [1967] 3 All ER 1 RLR 236 581, 582
22; (1967) 111 SJ 351, CA 366 Leeman v Montagu [1936] 2 All ER 1677 355
Kay and others v Lambeth London Borough Council Lemmon v Webb [1895] AC 1, CA 356
[2006] UKHL 10; [2006] 2 AC 465; [2006] 4 All L’Estrange v F Graucob Ltd [1934] 2 KB 394, CA
ER 128; [2006] 2 WLR 570 20, 29 126, 127, 138, 229
Keeley v Fosroc International Ltd [2006] EWCA Civ Les Laboratoires Servier v Apotex Inc [2014] 3 WLR
1277; [2006] IRLR 961 592 1257 341
Keighley Maxted & Co v Durant [1901] AC 240, HL Leverton v Clwyd County Council [1989] 2 WLR 47;
301 [1989] 1 All ER 78; [1989] ICR 33, HL 628
Keith Spicer Ltd v Mansell [1970] 1 All ER 462; Levey v Goldberg [1922] 1 KB 688 176
[1970] 1 WLR 333; (1969) 114 SJ 30, CA 413 Levez v Jennings (TH) (Harlow Pools) Ltd (No.2)
Kelner v Baxter (1866) LR 2 CP 174 302, 465 [1999] IRLR 764; [1999] All ER (EC) 1; [1999] 2
Kelly v GE Healthcare Ltd [2009] EWHC 181 (Pat) 694 CMLR 363 632
Kendall (Henry) & Sons v William Lillico & Sons Ltd Levy v Walker (1879) 10 ChD 436 419
[1969] 2 AC 31; [1968] 3 WLR 110; [1968] 2 All Lewis v Averay [1973] 1 WLR 510; [1973] 2 All ER
ER 444 122, 128 229, CA 148, 152, 155, 156, 157, 263
xxii  Table of cases

Lister v Hesley Hall [2001] UKHL 22; [2001] 1 AC McDougall v Aeromarine of Emsworth Ltd [1958] 3
215; [2001] 1 WLR 1311; [2001] 2 All ER 769, HL All ER 431; [1958] 1 WLR 1126; [1958] 2 Lloyd’s
367, 368 Rep 343 274
Liverpool City Council v Irwin [1977] AC 239; McFarlane v EE Caledonia Ltd [1994] 2 All ER 1;
(1976) 238 EG 879; (1984) 13 HLR 38, HL 121 [1994] 1 Lloyd’s Rep 16, CA 327
Lloyd v Brassey [1969] 2 QB 98; [1969] 2 WLR 310; McFarlane and another v Tayside Health Board
[1969] 1 All ER 382 612 [2000] 2 AC 59; [1999] 3 WLR 1301; [1999] 4 All
Lloyd v Browning [2013] EWCA Civ 1637 133 ER 961, HL 334
Lloyd v Grace, Smith & Co [1912] AC 716; [1911–13] McGhee v National Coal Board [1973] 1 WLR 1;
All ER Rep 51, HL 368 [1972] 3 All ER 1008, HL 336
Loch v John Blackwood Ltd [1924] AC 783, PC 539, 551 Mackie v European Assurance Society (1869) 21 LT
Loftus-Brigham and another v Ealing London Borough 102 157
Council [2003] EWCA Civ 1490; (2004) 20 Const McKillen v Misland (Cyprus) Investments Ltd See
LJ 82 356 Coroin Ltd, Re
Lombard North Central Plc v Automobile World (UK) McMonagle v Westminster City Council [1990] 2 AC
Ltd [2010] EWCA Civ 20; [2010] All ER (D) 166 716; [1990] 2 WLR 823; [1990] 1 All ER 993 12
(Jan) 193 MacWilliams v Sir William Arrol & Co Ltd [1962] 1
Lombard North Central v Butterworth [1987] QB All ER 623; [1962] 1 WLR 295; (1962) 106 SJ 218,
527; [1987] 2 WLR 7; [1987] 1 All ER 267, CA 401 HL 640
London Borough Council of Lewisham v Malcolm Maggs v Marsh [2006] EWCA Civ 1058; [2006] All ER
[2008] UKHL 43; [2008] 1 AC 1399; [2008] 4 All (D) 95 (Jul), CA 125
ER 525, HL 625 Maidment v Attwood See Annacott Holdings Ltd, Re
London Transport Executive v Clarke [1981] IRLR Malik v BCCI SA [1997] 3 WLR 95; [1997] 3 All ER 1;
166; [1981] ICR 355; (1981) 125 SJ 306, CA 597, [1997] IRLR 462, HL 598
603–604 Manbre Sacharine Co Ltd v Corn Products Co Ltd
Long v Lloyd [1958] 1 WLR 753; [1958] 2 All ER [1919] 1 KB 198 291
402; (1958) 102 SJ 488, CA 147 Manchester Liners Ltd v Rea Ltd [1922] 2 AC 74, HL 220
Lonsdale v Howard & Hallam Ltd [2007] UKHL 32; Mandla v Dowell Lee [1983] 2 AC 548; [1983] 2
[2007] 4 All ER 1; [2007] 1 WLR 2055, HL 314 WLR 620; [1983] 1 All ER 1062; [1983] ICR 385,
Ludsin Overseas Ltd v Eco3 Capital Ltd [2013] EWCA HL 623
Civ 413 145 Mann v D’Arcy and Others [1968] 2 All ER 172;
Lumley v Wagner (1852) 1 De GM & G 604 21 LJ Ch [1968] 1 WLR 893 413
898; [1843–60] All ER Rep 368 LC 197 Mannai Investments Co Ltd v Eagle Star Life
Luxor (Eastbourne) Ltd v Cooper [1941] AC 108; Assurance Co Ltd [1997] 2 WLR 945 125
[1941] 1 All ER 33, HL 80, 311, 312, 320 Maple Flock Co Ltd v Universal Furniture Products
(Wembley) Ltd [1934] 1 KB 148, CA 276
MAGA v Birmingham Roman Catholic Archdiocese Mareva Compania Naviera SA v International Bulk
Trustees [2010] EWCA Civ 256; [2010] 1 WLR Carriers SA [1975] 2 Lloyd’s Rep 509; (1975) 119
1441 368 SJ 660 198
MFI Warehouses Ltd v Nattrass [1973] 1 WLR 307; Maritime National Fish Ltd v Ocean Trawlers Ltd
[1973] 1 All ER 752 667 [1935] AC 524, PC 180, 203
McArdle, Re [1951] Ch 669; [1951] 1 All ER 90; Market Investigations v Minister of Social Security
(1951) 95 SJ 651, CA 92–93, 667 [1969] 2 QB 173; [1969] 2 WLR 1; [1968] 3 All ER
Macarthys Ltd v Smith [1981] QB 180; [1980] 3 732 581
WLR 929; [1981] 1 All ER 111; [1980] ICR 672, Marriott v Oxford and District Co-operative
ECJ 628 Society,Ltd [1970] 1 QB 186; [1969] 3 WLR 984;
Macaura v Northern Assurance Ltd [1925] AC 619, [1969] 3 All ER 1126 593
HL 447–448, 449 Marsh v Joseph [1897] 1 Ch 213 302
McCann v UK (1995) 21 EHRR 97, ECtHR 33 Martin Baker Aircraft Co Ltd v Canadian Flight
McCracken v Smith [2015] EWCA Civ 380 342 Equipment Ltd [1995] 2 QB 556 312
McCutcheon v David MacBrayne Ltd [1964] 1 All Mash & Murrell Ltd v Joseph I Emanuel Ltd [1961]
ER 430; [1964] 1 WLR 125; [1964] 1 Lloyd’s 1 All ER 485; [1962] 1 WLR 16; (1962) 105 SJ
Rep 16 129 1007, CA 290
Table of cases  xxiii

Massey v Crown Life Insurance Co [1978] 1 WLR National Employers Mutual General Insurance
676; [1978] 2 All ER 576; [1978] ICR 590, CA 584 Association Ltd v Jones [1990] AC 24; [1988] 2
Mathews v Kent and Medway Towns Fire Authority WLR 952 265
[2006] UKHL 8; [2006] 2 All ER 171; [2006] ICR Nettleship v Weston [1971] 2 QB 691; [1971] 3 WLR
365; [2006] IRLR 367 634–635 370; (1971) 115 SJ 624, CA 227 331
Mathieson v Noble & Sons Ltd [1972] IRLR 76 606 New Zealand Shipping Co Ltd v Satterthwaite (AM)
Maunsell v Olins [1975] AC 373 13 & Co [1974] AC 154; [1974] 2 WLR 865; [1974] 1
May and Butcher v R [1934] 2 KB 17n, HL 85 All ER 1015, PC 99
Mercantile Credit Co v Garrod [1962] 3 All ER 1103 Newtons of Wembley Ltd v Williams [1965] 1 QB 560;
430, 568 [1964] 2 WLR 888; [1964] 3 All ER 532, CA 263,
Mersey Docks & Harbour Board v Coggins and 264, 265
Griffiths (Liverpool) Ltd [1947] AC 1; [1945] KB Niblett Ltd v Confectioners’ Materials Co Ltd [1921] 3
301; [1946] 2 All ER 345, HL 365 KB 387, CA 211
Metropolitan Asylums Board (Managers) v Kingham Nichol v Godts [1854] 10 Exch 191 213
& Sons (1890) 6 TLR 217, QBD 302 Nickoll and Knight v Ashton, Eldridge & Co [1901]
Michael v Chief Constable of South Wales [2015] 2 KB 126, CA 179
UKSC 2 326 Nicolene Ltd v Simmonds [1953] 1 QB 543;
Microbeads v Vinhurst Road Markings [1975] 1 WLR [1953] 2 WLR 717; [1953] 1 All ER 822, CA
218; [1975] 1 All ER 529 212 75–76, 92
Midland Bank Trust Co Ltd v Green [1980] Ch 590; Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2003]
[1981] AC 513; [1979] 3 WLR 167; [1979] 3 All EWHC 2602 (Comm); [2004] 1 All ER (Comm)
ER 28, HL 111 481; [2004] 1 Lloyd’s Rep 38 75–76, 96
Miles v Clarke [1953] 1 WLR 537; [1953] 1 All ER Nordenfelt v The Maxim Nordenfelt Guns and
779; (1953) 97 SJ 209 426 Ammunition Company Limited [1894] AC 535,
Miller v Karlinski (1945) 62 TLR 85, CA 164 HL 165
Modelboard Ltd v Outer Box Ltd [1993] BCLC North Eastern Properties v Coleman [2010] 3 All ER
623 259 528 118
Mohamud v Morrison Supermarkets plc [2014] North Ocean Shipping Co Ltd v Hyundai
EWCA Civ 116 367 Construction Co Ltd, The Atlantic Baron [1979]
Monson v Tussauds Ltd [1894] 1 QB 671; [1891–4] QB 705; [1979] 3 WLR 419; [1978] 3 All ER 1170
All ER Rep 1051, CA 362 159–160
Moorcock, The (1889) 14 PD 64, CA 120, 139 North v Dumfries and Galloway Council [2013] UKSC
Moore & Co Ltd and Landauer & Co Ltd, Re [1921] 45; [2013] 4 All ER 413; 2013 SLT 769 628
2 KB 519, CA 172, 214 North Eastern Properties v Coleman [2010] 3 All ER
Morris v Murray [1991] 2 QB 6; [1991] 2 WLR 195; 528 118
[1990] 3 All ER 801, CA 340–341 Nottingham Patent Brick and Tile Co v Butler
Moss v Elphick [1910] 1 KB 846, CA 420 (1886) 16 QBD 778, CA 144
Motor Depot Ltd v Kingston upon Hull City Council Nottingham University v Fishel [2000] ICR 1462;
[2012] EWHC 3257 (Admin) 392 383, 662 [2000] IRLR 471; (2000) The Times, 31 March
Motor Oil Hellas (Corinth) Refineries SA v Shipping 587
Corp of India (The Kanchenjunga)
See Kanchenjunga, The Occidental Worldwide Investment Corporation v
Mountford v Scott [1975] 2 WLR 114; [1975] 1 All Skibs A/S Avanti (The Sibeon and The Sibotre)
ER 198; (1975) 118 SJ 755, CA 82, 197 [1976] 1 Lloyd’s Rep 293 159
Munro (Robert A) & Co v Meyer [1930] 2 KB 312 Office of Fair Trading v Lloyds TSB Bank Plc [2006]
276 EWCA Civ 268; [2006] 2 All ER 821, CA 390, 392
Murray v Foyle Meats [1999] 3 WLR 356; [1999] 3 Olgeirsson v Kitching [1986] 1 All ER 746; [1986] 1
WLR 769; [1999] IRLR 562, HL 613 WLR 304; (1986) 130 SJ 110 668
Olley v Marlborough Court Hotel Ltd [1949] 1 KB
Nash v Inman [1908] 2 KB 1, CA 108 532; [1949] 1 All ER 127; [1949] LJR 360, CA
National Carriers Ltd v Panalpina (Northern) Ltd 128, 138, 139
[1981] AC 675; [1981] 1 All ER 161; [1981] 2 O’Neill v Phillips [1999] 1 WLR 1092; [1999] 2 All ER
WLR 45, HL 181 961; [1999] 2 BCLC 1 537, 538, 569
xxiv  Table of cases

Online Catering Ltd v Acton [2010] EWCA Civ 58; Petrodel Resources Ltd v Prest [2013] UKSC 34;
[2011] QB 204; [2010] 3 WLR 928; [2010] 3 All [2013] 2 AC 415; [2013] 3 WLR 1; [2013] 4 All ER
ER 869 403 673 16, 451, 453
Oropesa, The [1943] 1 All ER 211; [1943] P 32, Pfeiffer GmbH v Arbuthnot Factors [1988] 1 WLR
CA 335 150; [1987] BCLC 522 259
Oscar Chess Ltd v Williams [1957] 1 WLR 370; Pharmaceutical Society of Great Britain v Boots
[1957] 1 All ER 325; (1957) 101 SJ 186, Cash Chemists (Southern) Ltd [1953] 1 QB 401;
CA 115 [1953] 2 WLR 427; (1953) 97 SJ 149, CA 68–69
Overseas Tankship (UK) v Mort Dock & Phillips v Brooks [1919] 2 KB 243 156
Engineering Co (The Wagon Mound) (No. 1) Photolibrary Group Ltd v Burda Senator Verlag
[1961] AC 388; [1961] 2 WLR 126; [1961] 1 All ER Gmbh [2008] EWHC 1343; [2008] 2 All ER
404, PC 16, 333, 338, 359 (Comm) 881; [2008] All ER (D) 219 (Jun), QB 129
Pickfords Ltd v Celestica Ltd [2003] EWCA Civ
Pacific Motor Auctions Pty Ltd v Motor Credits 1741; [2003] All ER (D) 265 (Nov), CA 71–72, 79
(Hire Finance) Ltd [1965] AC 867; [1965] 2 WLR Pickstone and others v Freemans plc [1988] 3 WLR
881; [1965] 2 All ER 105, PC 264 265; [1988] 2 All ER 803; [1988] IRLR 357, HL
Page v Smith [1995] UKHL 7, HL; [1996] AC 155; 628
[1995] 2 All ER 736; [1995] 2 WLR 644 326 Pinnel’s Case (1602) 5 Co Rep 117a 2, 102, 106, 708
Page One Records Ltd v Britton [1968] 1 WLR 157; Pinnock Bros v Lewis & Peat Ltd [1923] 1 KB 690
[1967] 3 All ER 822; (1968) 111 SJ 944 198 191
Panorama Developments (Guildford) Ltd v Fidelis Pitreavie Golf Club v Penman 1934 SLT 247 415
Furnishing Fabrics Ltd [1971] 2 QB 711; [1971] Planché v Colburn (1831) 5 C & P 58 175, 199
3 WLR 440; [1971] 3 All ER 16, CA 494 Plevin v Paragon Personal Finance Ltd [2014] 1
Pao On v Lau Yiu Long [1980] AC 614; [1979] 3 WLR WLR 4222 396–397
435; [1979] 3 All ER 63, PC 93 Poland v John Parr and Sons [1927] 1 KB 236, CA
Paris v Stepney Borough Council [1951] AC 367; 365
[1951] 1 All ER 42; [1971] 1 TLR 25, HL 332, Polemis & Furness, Withy & Co, Re [1921] 3 KB 560;
640 [1921] All ER Rep 40 16, 338
Parker v Clark [1960] 1 WLR 286; [1960] 1 All ER 93; Polkey v A E Dauton (or Dayton) Services Ltd [1988]
(1960) 104 SJ 251 88 AC 344; [1987] 3 All ER 974, HL 609
Parkinson v College of Ambulance Ltd [1925] 2 KB 1 Pollard v Tesco Stores Ltd & Another, See Tesco Stores
164 Ltd & Another v Pollard
Partridge v Crittenden [1968] 1 WLR 1204; Pooley v Driver (1876) 5 ChD 458 412
[1968] 2 All ER 421; (1968) 112 SJ 582 lii, 47, Portbase Clothing Ltd, Re, Mond v Taylor [1993] Ch
66–67 388; [1993] 3 WLR 14; [1993] 3 All ER 829 541
Pathirana v Pathirana [1967] 1 AC 233; [1966] 3 Post Office v Foley; HSBC Bank v Madden [2000] 1 All
WLR 666; (1966) 110 SJ 547, PC 427 ER 550 608
Peachdart Ltd, Re [1984] Ch 131; [1983] 3 WLR Poussard v Spiers (1876) 1 QB 410 123
878; [1983] 3 All ER 204 259 Powell v Kempton Racecourse Company [1899] AC
Pearce v Brooks (1866) LR I Ex 213 164 143 14
Pearson v Rose and Young Ltd [1951] 1 KB 275; Practice Statement [1966] 1 WLR 1234 15
[1951] 2 All ER 1027 261 Pratt v Strick (1932) 17 TC 459 416
Pedley v Inland Waterways Association Ltd [1977] 1 Prest v Petrodel Resources Ltd See Petrodel Resources
All ER 209 476 Ltd v Prest
Pender v Lushington (1877) 6 ChD 70 525, 536 Printing and Numerical Registering Co v Samson
Pepper v Webb [1969] 1 WLR 514; [1969] 2 All ER (1875) LR 19 Eq 462 126
216; (1969) 113 SJ 186 587–588, 595, 705 Progress Bulk Carriers Ltd v Tube City IMS LLC
Pepper (Inspector of Taxes) v Hart [1992] AC 593; [2012] EWHC 273 (Comm); [2012] 2 All ER
[1992] 3 WLR 1032; [1993] 1 All ER 42, HL 14, (Comm) 855; [2012] 1 Lloyd’s Rep 501; [2012]
35, 43 All ER (D) 122 161
Peter Cassidy Seed Co Ltd v Osuustukk-Auppa Ltd Public Relations Consultants Association Ltd v
[1957] 1 WLR 273; [1957] 1 All ER 484; (1957) Newspaper Licensing Agency Ltd [2013] UKSC 18;
101 SJ 149 181 [2013] 2 All ER 852 690
Table of cases  xxv

Pyrene & Co Ltd v Scindia Steam Navigation Co Ltd Read v J Lyons & Co [1947] AC 146; [1946] 2 All ER
[1954] 2 QB 402; [1954] 2 WLR 1005; [1954] 2 471; [1947] LJR 39, HL 359
All ER 158 289 Ready Mixed Concrete (South East) Ltd v MPNI
[1968] 2 QB 497; [1968] 2 WLR 775; [1968] 1 All
R v A [2001] 2 AC 45; [2001] UKHL 25; [2001] 2 ER 433 581
WLR 1546; [2001] 3 All ER 1, HL 15 Reardon Smith Line v Hansen Tangen [1976] 1
R v Allen (1872) LR 1 CCR 376 12 WLRn989; [1976] 3 All ER 570; (1976) 120 SJ
R v Attorney General for England and Wales [2003] 719 212, 214
UKPC 22, 147 SJ LB 354; [2003] EMLR 24, PC Reckitt & Colman Products Ltd v Borden Inc [1990] 1
161, 200 WLR 491; [1990] 1 All ER 873 370
R v Bow Street Magistrates and Allison, ex parte US Reddaway v Banham [1896] AC 199 371
Government [2000] 2 AC 216; [1999] 3 WLR 620; Redgrave v Hurd (1881) 20 ChD 1 144
[1999] 4 All ER 1, HL 673 Rees v Darlington Memorial Hospital NHS Trust
R v Bristol Magistrates’ Court See R (on the [2003] UKHL 52; [2004] 1 AC 309; [2003] 3 WLR
application of Junttan Oy) v Bristol Magistrates 1091; [2003] 4 All ER 987, HL 334
Court Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134n;
R v Duncan [1944] 1 KB 713 2 [1942] 1 All ER 378, HL 428, 507
R v Gold [1988] AC 1063; [1988] 2 WLR 984; [1988] Revenue and Customs Commissioners v Pal [2006]
2 All ER 186, HL 672 EWHC 2016 (Ch); [2006] SWTI 2074; [2006] All
R v Horncastle [2009] UKSC 14; [2010] 2 AC 373; ER (D) 480 (Jul) 434
[2010] 2 WLR 47; [2010] 2 All ER 359 33, 34 Rhodes v Fielder, Jones and Harrison (1919) 89 LJ KB
R v Inhabitants of Sedgeley (1831) 2 B & Ad 65 14 15 311
R v Latimer (1866) 17 QBD 359; (1874) LR 2 CCR Richmond Gate Property Co Ltd, Re [1965] 1 WLR
119 659 335; [1964] 3 All ER 936 311, 312, 481
R v Magro [2010] EWCA Crim 1575; [2011] QB 398; Richmond London Borough Council v Pinn and
[2010] 3 WLR 1694; [2011] 2 All ER 935 16 Wheeler Ltd (1989) 133 SJ 389; [1989] Crim LR
R v Pembliton (1874) 17 QBD 359; (1874) LR 2 CCR 510; [1989] RTR 354 448
119 659 Rigby v Ferodo Ltd [1988] ICR 29; [1987] IRLR 516 594
R v Registrar of Companies, ex-parte Attorney General Ritchie v Atkinson (1808) 10 East 295 173
[1991] BCLC 476, DC 460 Ritchie Ltd v Lloyd Ltd See J&H Ritchie Ltd v Lloyd Ltd
R v Scottish and Southern Energy Plc [2012] EWCA Robertson v Securicor Transport Ltd [1972] IRLR 70
Crim 539 660 600
R v Secretary of State for Transport, ex parte Robinson v Flitwick Frames Ltd [1975] IRLR 261 588
Factortame (No. 2) [1991] 1 AC 603; [1990] 3 Robinson v Kilvert (1889) 41 Ch D 88, CA 355
WLR 818; [1991] 1 All ER 70 28 Robinson v PE Jones [2011] EWCA Civ 9; [2011] 3
R v Thompson [2010] EWCA Crim 1623; [2011] 1 WLR 815 323, 330
WLR 200; [2011] 2 All ER 83; [2010] All ER (D) Roe v Minister of Health [1954] 2 QB 66; [1954] 2
(Sep) 60 WLR 915; [1954] 2 All ER 131, CA 331
R (on the application of Junttan Oy) v Bristol Roscorla v Thomas (1842) 3 QB 324 93
Magistrates Court sub nom: Junttan Oy v Bristol Rose v Plenty [1976] 1 WLR 141; [1976] 1 All ER 97;
Magistrates Court [2003] UKHL 55; [2004] 2 All (1976) 119 SJ 592, CA 366, 367
ER 555; [2004] Eu LR 134; [2003] ICR 1475 636 Rose and Frank Co v Crompton Bros [1925] AC
Raffles v Wichelhaus (1864) 2 H & C 906 155 445, HL 89, 90
Rainey v Greater Glasgow Health Board [1987] AC Rossetti Marketing Ltd v Diamond Sofa Co Ltd [2012]
224; [1986] 3 WLR 1017; [1987] 1 All ER 65 631 EWCA Civ 1021; [2013] 1 All ER (Comm) 308;
Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] WLR (D) 287 308, 314
[2011] 1 WLR 2900; [2012] 1 All ER 1137 125 Rothwell v Chemical and Insulating Co Ltd See
Ramsgate Victoria Hotel Co v Montefiore (1866 LR 1 Johnston v NEI International Combustion Ltd;
Exch 109, 4 H & C 164; 35 LJ Ex 90 82 Rothwell v Chemical and Insulating Co Ltd
Ratcliffe v North Yorkshire County Council [1995] 3 All Routledge v McKay [1954] 1 All ER 855; [1954] 1
ER 597; [1995] ICR 833; [1995] IRLR 439, HL 631 WLR 615; 98 SJ 247, CA 117
Rayfield v Hands [1960] Ch 1; [1958] 2 WLR 851; Rowland v Divall [1923] 2 KB 500, CA 199, 210,
[1958] 2 All ER 194 525 211, 212, 236, 260, 361, 712
xxvi  Table of cases

Rowlands v Hodson See Hodson v Hodson Secretary of State for Employment v ASLEF [1972] 2
Royal Bank of Scotland plc v Etridge (No.2) and other QB 455; [1972] 2 WLR 1370; [1972] 2 All ER 949
appeals, Barclays Bank plc v Coleman, Bank of 592
Scotland v Bennett, Kenyon-Brown v Desmond Secretary of State for the Home Department v AF
Banks & Co (a firm) [2001] UKHL 44; [2002] 2 AC (No.3) [2009] UKHL 28; [2009] 3 WLR 74; [2009]
773; [2001] 4 All ER 449; [2001] 2 All ER (Comm) 3 All ER 643 34
1061; [2001] 3 WLR 1021 162–163 Seldon v Clarkson Wright & Jakes [2012] UKSC 16;
Royscot Trust Ltd v Rogerson [1991] 2 QB 297; [2012] 3 All ER 1301 622
[1991] 3 WLR 57; [1991] 3 All ER 294, CA 145, Selectmove, Re [1995] 1 WLR 474; [1995] 2 All ER
149–150 534, CA 100, 103
RTS Flexible Systems Ltd v Molkerei Muller GmbH Shadwell v Shadwell (1860) 9 CB (NS) 159 98–99, 101
[2010] UKSC 14; [2010] 1 WLR 753; [2010] 3 All Shell (UK) v Lostock Garages [1976] 1 WLR 1187;
ER 1 75 [1976] 1 All ER 481; (1976) 120 SJ 523 120
Russell v Northern Bank Development Corporation Ltd Shepherd v Jerrom [1987] QB 301; [1986] 3 WLR
[1992] 3 All ER 161; [1992] 1 WLR 588, HL 526 801; [1986] 3 All ER 589; [1986] ICR 802 596
Ruttle Plant Hire v Secretary of State for the Shields v Coombes (E) (Holdings) Ltd [1978] 1 WLR
Environment, Food and Rural Affairs [2009] 1408; [1979] 1 All ER 456; [1978] ICR 1159, CA
EWCA Civ 97; [2009] BLR 301, CA 407 629
Ruxley Electronics and Construction Ltd v Forsyth Shipton Anderson & Co v Weil Bros [1912] 1 KB 574
[1996] AC 344; [1995] 3 WLR 118; [1995] 3 All 275
ER 268; [1995] EGCS 11, HL 191 Shirlaw v Southern Foundries [1939] 2 All ER 113,
Rylands v Fletcher (1866) LR 1 Ex 265, HL; (1866) CA 119
LR 3 HL 330, 356, 358, 359, 360, 362, 369, 371, Shogun Finance Ltd v Hudson [2003] UKHL 62;
373, 374 [2004] 1 AC 919; [2003] 3 WLR 1371; [2004] 1
All ER 215 43, 156–157, 304
S (Children) (Care Order: Implementation of Care Siemens Building Technologies FE Ltd v Supershield
Plan), Re [2002] UKHL 10; [2002] 2 AC 291; Ltd [2010] EWCA Civ 7; [2010] 1 Lloyd’s Rep 349
[2002] 2 WLR 720 15 193
Safeway Stores plc v Burrell [1997] IRLR 200; Simons v Patchett (1857) 7 E & B 568, 26 LJ QB 195 305
[1997] ICR 523 613–614 Simpole v Chee [2013] EWHC 444 303
Sagar v Ridehalgh & Son Ltd [1931] Ch 310 591 Sinclair v Neighbour [1967] 2 QB 279; [19657] 2
Said v Butt [1920] 3 KB 497 303–304 WLR 1; [1966] 3 All ER 988, CA 596
Salomon v Salomon and Co Ltd [1897] AC 22, HL Siu Yin Kwan v Eastern Insurance Co [1994] 2 AC
447, 448, 451, 453, 532 199; [1994] 2 WLR 370; [1994] 1 All ER 213 304
Salt v Stratstone Specialist Ltd [2015] EWCA Civ 745 Sky Petroleum v VIP Petroleum [1974] 1 WLR 576;
147, 148, 150 [1974] 1 All ER 954; (1973) 118 SJ 311 197
Sandhu v Gill [2005] EWCA Civ 1297; [2006] Ch Slater v Fleming Ltd [1997] AC 471; [1996] 3 WLR
456; [2006] 2 All ER 22; [2006] 2 WLR 8 439 190; [1996] 3 All ER 398, HL 221
Saunders v Anglia Building Society [1970] AC Smith v Eric S Bush [1990] 1 AC 831; [1989] 2 WLR
1004; [1970] 3 WLR 1078; [1970] 3 All ER 961, 790; [1989] 2 All ER 514, HL 131
HL 158 Smith v Hughes (1871) LR 6 QB 597; 40 LJQB 221
Saywell v Pope (1979) 53 TC 40 414, 417, 420 143, 158
Scammell and Nephew Ltd v Ouston [1941] AC Smith v Hughes [1960] 1 WLR 830; [1960] 2 All ER
251, HL 74, 76 859; (1960) 104 SJ 606 13
Schawel v Reade [1913] 2 IR 81, HL 116, 117 Smith v Land and House Property Corporation
Schroeder Music Publishing Co Ltd v MacAuley (1884) 28 ChD 7, CA 118, 142, 146
[1974] 1 WLR 1308; [1974] 3 All ER 616; (1974) Smith v Leech Brain [1962] 2 QB 405; [1962] 2 WLR
118 SJ 734, HL 166 148; [1961] 3 All ER 1159 339
Scott v Coulson [1903] 2 Ch 439 152, 199 Smith New Court Securities Ltd v Scrimgeour Vickers
Scott v Gregg See Gregg v Scott (Asset Management) Ltd [1997] AC 254; [1996] 3
Secretary of State for Business, Enterprise and WLR 1052; [1996] 4 All ER 769 149
Regulatory Reform v Neufeld [2009] EWCA Civ Smithton Ltd v Hobart Capital Markets Ltd [2014]
280; [2009] 3 All ER 790 448, 582 EWCA Civ 939 473–474
Table of cases  xxvii

Societe Generale v Geys [2011] EWCA Civ 307, Stevenson v Rogers [1999] QB 1028; [1999] 2 WLR
[2011] All ER (D) 350 (Mar) 600 1064; [1999] 1 All ER 613, CA liii, 215, 219, 265
Solle v Butcher [1950] 1 KB 671; [1949] 2 All ER Stevenson, Jacques & Co v McLean (1880) 5 QBD
1107; [1950] 66 TLR (Pt 1) 448, CA 154 346 81
Soulsbury v Soulsbury [2007] EWCA Civ 969; Stevenson, Jordan and Harrison Ltd v MacDonald and
[2008] 2 WLR 834; [2007] All ER (D) 132 (Oct) Evans [1952] 1 TLR 101; [1952] 69 RPC 10, CA 581
80–81 Stilk v Myrick (1809) 2 Camp 317 99, 100, 104
South Australia Asset Management Corp v York Strathearn Gordon Associates Ltd v Commissioners of
Montague Ltd [1997] AC 191; [1996] 3 WLR 87; Customs and Excise [1985] VATTR 79 414
[1996] 3 All ER 365 150 Sturges v Bridgman (1879) 11 Ch D 852, CA 355
South East Windscreens Ltd v Jamshidi and Poor Sudbrook Trading Estate Ltd v Eggleton [1983] AC
[2005] EWHC 3322 (QB); [2005] All ER (D) 317 444; [1982] 3 WLR 315; [1982] 3 All ER 1, HL 75
(Dec) 155 Sumpter v Hedges [1898] 1 QB 673, CA 174
Southern Cross Healthcare Co Ltd v Perkins [2010] Surrey Trading Standards v Scottish and Southern
EWCA Civ 1442; [2011] ICR 285; [2011] Energy Plc See R v Scottish and Southern Energy Plc
IRLR 247 585 Sybrom Corporation v Rochem Ltd [1985] Ch 299;
Spartan Steel and Alloys Ltd v Martin & Co [1983] 3 WLR 713; [1983] 2 All ER 707, CA 589
(Contractors)Ltd [1973] QB 27; [1972] 3 WLR Systems Floors v Daniel [1981] IRLR 475; [1982] ICR
502; [1972] 3 All ER 557, CA 329 54 585
Spectrum Plus Ltd, Re [2005] UKHL 41; [2006] 2
WLR 1346 18, 541, 542 Talisman, The, See Stephen v Scottish Boatowners
Spencer v Harding (1870) LR 5 CP 561 73 Mutual Insurance Association (The Talisman)
Spencer-Franks v Kellogg Brown and Root Ltd [2008] TRM Copy Centres (UK) Ltd v Lanwall Services Ltd
UKHL 46; [2009] 1 All ER 269; [2008] ICR 863; [2009] UKHL 35; [2009] 4 All ER 33, HL 377
HL 639 Tao Herbs & Acapuncture Ltd v Jin [2010] UKEAT
Spice Girls Ltd v Aprilia World Service BV (2000) The 1477–09 611
Times, 5 April; [2000] EMLR 478 142, 143 Tarling v Baxter [1827] 6 B & C 360 249, 268
Spiro v Lintern [1973] 1 WLR 1002; [1973] 3 All ER Taylor v Caldwell (1863) 3 B & S 826 177, 203
319; (1973) 117 SJ 584, CA 299–300 Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194;
Spring v Guardian Assurance plc [1995] 2 AC [2013] 3 WLR 989 327
296; [1994] 3 WLR 354; [1994] 3 All ER 129, Tedstone v Bourne Leisure Ltd [2008] EWCA Civ 654;
HL 343, 591 [2008] All ER (D) 74 (May), CA 334
Springer v Great Western Railway [1921] 1 KB 257 300 Tekdata Interconnections Ltd v Amphenol Ltd
Stadium Capital Holdings v St Marylebone Properties [2009] EWCA Civ 1209; [2010] 2 All ER (Comm)
Co [2010] EWCA Civ 952; [2010] All ER (D) 83 302; [2010] 1 Lloyd’s Rep 357 83, 125
(Nov) 360 Tesco Stores Ltd v Pollard [2006] EWCA Civ 393;
Stainer v Lee [2010] EWHC 1539 (Ch); [2011] BCC [2006] All ER (D) 186 (Apr), CA 345
134 534–535 Tesco Supermarkets v Nattrass [1972] AC 153; [1971]
Stannard v Gore [2012] EWCA Civ 1248; [2013] 3 2 WLR 1166; [1971] 2 All ER 127, HL 450, 668
WLR 623; [2013] 1 All ER 694 359 Thain v Anniesland Trade Centre 1997 SLT 102, Sh
Star Energy UK Onshore Ltd See Bocardo SA v Star Ct 218
Energy UK Onshore Ltd Thake and another v Maurice [1986] QB 644; [1986]
Stark v The Post Office [2000] All ER (D) 276; (2000) 2 WLR 337; [1986] 1 All ER 497 227
The Times, 29 March 638 Thomas v Thomas (1842) 2 QB 851 93
Startup v MacDonald (1843) 6 Man & G 593 175 Thomas Edward Brinsmead and Sons, Re [1897] 1
Stekel v Ellice [1973] 1 WLR 191; [1973] 1 All ER 465 Ch 45, CA 551
414 Thompson v London, Midland and Scottish
Stephen v Scottish Boatowners Mutual Insurance Railway Co [1930] 1 KB 41, CA 127, 128, 138
Association (The Talisman) 98 [1989] 1 Lloyd’s Thompson v Metropolitan Police Commissioner
Rep 535; 1989 SC (HL) 24; 1989 SLT 283, HL 76 [1998] QB 498; [1997] 3 WLR 403; [1997] 2 All
Sterns Ltd v Vickers Ltd [1922] All ER 126, CA 254 ER 762, CA 361
Stevenson v Beverley Bentinck Ltd [1976] 2 All ER Thompson v The Renwick Group plc [2014] EWCA
606 265 Civ 635 454
xxviii  Table of cases

Thorne v Motor Trade Association [1937] AC 797; Universal Project Management Services Ltd v Fort
[1937] 3 All ER 157, HL 161 Gilkicker Ltd [2013] All ER (D) 313 535
Thornton v Shoe Lane Parking Ltd [1971] 2 QB Universe Tankships of Monrovia v International
163; [1971] 2 WLR 585; [1971] 1 All ER 686, CA Transport Workers Federation [1982] 1 AC 366;
77, 128, 138 [1982] 2 WLR 803; [1982] 2 All ER 67, HL 160
Tiffin v Lester Aldridge LLP EWCA Civ 35; [2012] 1 University of London Press Ltd v University Tutorial
WLR 1887; [2012] 2 All ER 1113 414, 563 Press Ltd [1916] 2 Ch 601 687
Tool Metal Manufacturing Co v Tungsten Electric Uren v Corporate Leisure (UK) Ltd [2011] EWCA Civ
Company [1955] 1 WLR 761; [1955] 2 All ER 657, 66 332
HL 104
Tower Cabinet Co Ltd v Ingram [1949] 2 KB 397; Valencia v Llupar [2012] EWCA Civ 396 76, 414
[1949] 1 All ER 1033; (1949) 93 SJ 404 433 Van Gend en Loos v Nederlands Administratie der
Transco plc v Stockport Metropolitan Borough Council Belastingen [1963] ECR 1; [1963] CMLR 105 24
[2003] UKHL 61; [2003] 3 WLR 1467; [2004] 1 Various Claimants v Institute of the Brothers of the
All ER 589 358, 359 Christian Schools [2012] UKSC 56; [2013] 2 AC 1;
Transfield Shipping Inc v Mercator Shipping Inc, [2012] 3 WLR 1319; [2013] 1 All ER 670 365, 369
The Achilleas [2008] UKHL 48; [2009] AC 61; VFS Financial Services Ltd v JF Plant Tyres Ltd [2013]
[2008] 4 All ER 159, HL 189–190 EWHC 346 (QB); [2013] 1 WLR 2987; [2013] 1
Trebor Bassett Holdings Ltd v ADT Fire & Security Plc Lloyd’s Rep 462 266
[2012] EWCA Civ 1158 208 Viasystems Ltd v Thermal Transfer Ltd and Darwell
Trego v Hunt [1896] AC 7 438 Ltd (2006) Lawtel; [2005] EWCA Civ 1151; [2006]
Trimble v Goldberg (1906) 95 LTR 163, PC 429 QB 510; [2005] 4 All ER 1181 365
Trollope v NWRHB [1973] 1 WLR 601; [1973] 2 All Victoria Laundry v Newman Industries [1949] 2 KB
ER 260; (1973) 117 SJ 355, HL 120 528; [1949] 1 All ER 997; (1949) 93 SJ 371, CA
Trueman and Others v Loder (1840) 11 Ad & El 589 312 189, 191
Truk (UK) Ltd v Tokmakidis GmbH [2000] 2 All ER Vierboom v Chapman (1844) 13 M & W 230 173
(Comm) 594; [2000] 1 Lloyd’s Rep 543, QBD Vine v Waltham Forest London Borough Council
(Merc Ct) 285 [2000] 1 WLR 2383; [2000] 4 All ER 169, CA 361
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962]
AC 93; [1961] 2 WLR 633; [1961] 2 All ER 179, Wagon Mound See Overseas Tankship (UK) v Mort Dock
HL 179, 203 & Engineering Co (The Wagon Mound) (No. 1)
Tuberville v Savage (1669) 1 Mod Rep 3; 2 Keb 545 Walford v Miles [1992] 2 AC 128; [1992] 2 WLR 174;
360 [1992] 1 All ER 453 121
Tunstall v Steigmann [1962] 2 QB 593; [1962] 2 WLR Wallonie ASBL Case [1997] ECR I-7411 25
1045; [1962] 2 All ER 417, CA 448 Walton Harvey Ltd v Walker & Homfrays Ltd
Tweddle v Atkinson (1831) 1 B & S 393 l, 95 [1931] 1 Ch 274 181
Tyrer v UK (1978) 2 EHRR 1, ECtHR 31 Ward v Tesco Stores [1976] 1 WLR 810; [1976] All ER
219; (1976) 120 SJ 555, CA 333, 334
UCB Home Loans Corp Ltd v Soni [2013] EWCA Civ Warner Bros Pictures Inc v Nelson [1936] 1 KB 209
62 433–434 198
UK Housing Alliance (North West) Ltd v Francis Warren v DrukkeriJ Flach BV [2014] EWCA Civ 993
[2010] EWCA Civ 117; [2010] 3 All ER 519 315
Underwood Ltd v Burgh Castle Sand and Cement Warren v Henlys Ltd [1948] 1 All ER 935; 92 SJ 706,
Syndicate [1922] 1 KB 343, CA 247, 248 KB 367
United Bank of Kuwait v Hammoud [1988] 1 WLR Warren v Mendy [1989] 1 WLR 853; [1989] 3 All ER
105; [1988] 3 All ER 418, CA 431 103; (1989) 133 SJ 1261 312
United Brands Co v EC Commission [1978] ECR 207; Watt v Hertfordshire CC [1954] 1 WLR 835; [1954]
[1978] 1 CMLR 429, ECJ 676 2 All ER 268; (1954) 98 SJ 371, CA 332
United Dominions Trust Ltd v Western [1976] QB 513; Watteau v Fenwick [1893] 1 QB 346 300, 301, 302,
[1976] 2 WLR 64; [1975] 3 All ER 1017, CA 158 312, 319
United Kingdom Atomic Energy Authority v Claydon Watts v Morrow [1991] 1 WLR 1421; [1991] 4 All ER
[1976] IRLR 6; [1974] ITR 185; [1974] ICR 128 588 97 192
Table of cases  xxix

Waugh v HB Clifford and Sons Ltd [1982] Ch 374; Wilson v Burnett [2007] EWCA Civ 1170; [2007] All
[1982] 2 WLR 679; [1982] 1 All ER 1095, CA 297, ER (D) 372 (Oct), CA 91
299 Wilson v First County Trust Ltd [2003] UKHL 40;
Webster v Higgin [1948] 2 All ER 127; (1948) 92 SJ [2003] 3 WLR 568; [2003] 4 All ER 97; [2003] 2
454 117, 129 All ER (Comm) 491, HL 387
Weddall v Barchester Healthcare Ltd; Wallbank v Wilson v IDR Construction Ltd [1975] IRLR
Wallbank Fox Designs Ltd [2012] EWCA Civ 25 260 588
367 With v O’Flanagan [1936] Ch 575, CA 143, 170
Weller v Foot and Mouth Research Institute [1966] Wolman v Islington LBC [2007] EWCA Civ 823;
1 QB 569; [1965] 3 WLR 11082; [1965] 3 All ER [2008] 1 All ER 1259; (2007) 104(32)
560 329 LSG 24 13
Western Excavating (ECC) Ltd v Sharp [1978] QB Wood v Capital Bridging Finance Ltd [2015] EWCA
761; [1978] 2 WLR 344; [1978] 1 All ER 713, CA Civ 451 379
601, 602 Wood v Odessa Waterworks Co (1889) 42 ChD 636
Wheat v Lacon [1966] AC 552; [1966] 2 WLR 581; Woodar Investment Developments Ltd v Wimpey
[1966] 1 All ER 582, HL 347 Construction UK Ltd [1980] 1 WLR 277; [1980] 1
White v Bluett (1853) 23 LJ Ex 36 93 All ER 571; (1980) 124 SJ 184, HL 95
White and Carter (Councils) v MacGregor [1962] Woolfson v Strathclyde RC 1978 SC (HL) 90; 1978
AC 413; [1962] 2 WLR 713; [1961] 3 All ER 1178, SLT 159 451
HL 184, 193 Wren v Holt [1903] 1 KB 610 221
Whitworth Street Estates Ltd v Miller [1970] AC 583
125 Yam Seng Pte Ltd v International Trade Corp Ltd
William Sindell plc v Cambridgeshire CC [1994] 3 All [2013] EWHC 111 (QB); [2013] 1 All ER
ER 932, CA 150 (Comm) 1321; [2013] 1 Lloyd’s Rep 526 121
Williams v Carwardine (1833) 5 C & P 566 78 Yapp v Foreign and Commonwealth Office [2014]
Williams v Compair Maxam Ltd [1982] ICR 156; EWCA Civ 1512 639
[1982] IRLR 83, EAT 605, 614 Yasuda Ltd v Orion Underwriting Ltd [1995] QB 174;
Williams v Range [2004] EWCA Civ 294; [2004] 1 [1995] 2 WLR 49; [1995] 3 All ER 211 309
WLR 1858; 148 SJ LB 384 376 Yenidje Tobacco Co Ltd, Re [1916] 2 Ch 426, CA 532,
Williams v Roffey Bros & Nicholls (Contractors) 551
Ltd [1991] 1 QB 1; [1990] 2 WLR 1153; [1990] 1 Yeoman Credit Ltd v Waragowski [1961] 1 WLR
All ER 512, CA 100, 101, 103, 104, 111 1124; [1961] 3 All ER 145, CA 286, 400, 403
Willis Management (Isle of Man) Ltd v Cable and Yonge v Toynbee [1910] 1 KB 215, CA 305
Wireless plc [2005] EWCA Civ 806; [2005] 2 Yorkshire Woolcomber’s Association Ltd, Re,
Lloyd’s Rep 597 75, 277 Houldsworth v Yorkshire Woolcombers’
Willow Oak Developments Ltd v Silverwood [2006] Association Ltd [1903] 2 Ch 284 542
EWCA Civ 660; [2006] ICR 1552; [2006] IRLR Young v Bristol Aeroplane Co Ltd [1944] KB 718 16
607; [2006] All ER (D) 351 (May) 607 Young Legal Associates Ltd v Zahid (a firm)
Wilsher v Essex Area Health Authority [1988] AC 1074; [2006] EWCA Civ 613; [2006] 1 WLR 2562;
[1988] 2 WLR 557; [1988] 1 All ER 871, HL 336 CA 416–417, 424
Table of statutes

Abortion Act 1967 9 pt 14 540 s 40(3) 485


Administration of Justice Act s 2 462 s 40(4) 485
1985 56 s 3A 462, 483 s 40(5) 485
Appeals of Murder Act 1819 2 s 14(1) 524 s 41 485
Arbitration Act 1950 53 s 35A 484 s 41(3) 485
Arbitration Act 1975 53 s 303 476 s 41(4) 485
Arbitration Act 1979 53 s 376 476 s 43 485
Arbitration Act 1996 53 s 459 538 s 44 485
s 1 53 Companies Act 2006 418, 441, s 45 485
s 9 53 445–446, 459–465, 482, 546, s 45(2) 468
s 33 53 555, 556, 561, 720, 722 s 51(1) 302, 465, 564, 722
s 33(a) 53 s 9 460 s 52 486
s 33(b) 53 s 9(1) 460 ss 53–56 466
s 34 53 s 9(2) 460 ss 54–56 466
s 40 53 s 9(4) 460 s 57 466
s 65 53 s 9(5) 460 s 58 466
Auction (Bidding Agreements) Act s 10(2) 460 s 59 466
1969 287 s 15(2) 461 s 65 467
s 17 462, 464 s 65(1) 467
Betting Act 1853 14 s 18 463 s 65(2) 467
Bills of Exchange Act 1882 9 s 20(1) 463 s 66(1) 467
Bills of Sale Act 1878 403 s 21 475, 526 s 67 467
Bills of Sale (1878) (Amendment) s 21(1) 463, 517 s 69(1) 419, 467
Act 1882 403 s 22(1) 463 s 69(4) 467
Bribery Act 2010 679–680, 682, s 22(2) 463 s 69(5) 467
684, 729 s 22(3) 463 s 75 467
s 1 679, 680 s 23 463 s 76(1) 467
s 2 679, 680 s 24 463 s 77 468
s 3 680 s 25 463 s 77(1) 517
s 4 680 s 25(1) 464 s 78 468
s 5 680 a 26(1) 463 s 82 468, 469
s 6 680 s 28 457, 484 s 84 468, 469
s 7 680 s 28(1) 462, 463 s 85 469
British Railways Act 1968 8 s 29 464 s 90(1) 517
Business Names Act 1985 418 s 29(1) 464, 524 s 97 455
s 30 464 s 97(1) 517
Carriage of Goods by Sea Act 1992 s 30(1) 524 s 98 456
s 2(1) 288 s 31 483 s 105(1) 517
Civil Evidence Act 1995 s 31(1) 462 s 109 456
s 11 333 s 32 464 s 112 510
Civil Liability (Contribution) Act s 33(1) 524, 525 s 112(1) 511
1978 s 36C(1) 465 s 112(2) 511
s 3 390 s 39(1) 484, 485, 722 s 113 500
Civil Procedure Act 1997 55, 62 s 40 485 s 123(2) 459
Companies Act 1980 458 s 40(1) 484, 485 s 123(3) 459
Companies Act 1985 s 40(2)(b) 485 s 125 511
Table of statutes  xxxi

s 127 511 s 174(1) 487 s 228 501


s 154(1) 474 s 174(2) 487 s 228(1) 482
s 154(2) 474 s 175 479, 486, 488, 489, 723 s 228(3) 482
s 155(1) 474 s 175(1) 488 s 231 459, 491
s 156 474 s 175(2)–(3) 488 ss 232–239 492
s 157 474 s 175(4)–(6) 488, 534 s 232 492
s 159 475 s 175(5) 488 s 232(1) 492
s 160 474 s 175(6) 488, 536 s 232(2) 492
s 160(1) 474 s 175(7) 488 s 232(3) 492
s 160(2) 474 s 176 486, 489, 723 s 232(4) 492
s 161 474 s 176(1)–(2) 489 s 239 492, 493, 533, 534
s 162(1) 477 s 176(3) 489 s 239(3) 488
s 162(3) 477 s 176(4)–(5) 489 s 239(4) 488, 492, 536
s 162(4) 477 s 177 479, 486, 489, 490, 491, 723 s 239(6) 492
s 162(5) 477 s 177(1) 489 s 239(7) 493
s 162(6) 478 s 177 (2)–(4) 489 s 240 478
s 162(7) 478 s 177(5) 490 s 241 478
s 162(8) 478 s 177(6)(a) 489, 490 s 241(2) 478
s 163(1) 477 s 177(6)(b) 489, 490 s 242 478
s 163(5) 477 s 177(6)(c) 489, 490 s 243 478
s 164 477 s 178(1) 490 s 244 478
s 167(1) 478 s 178(2) 490 s 245 478
s 165 501 s 179 486 s 246 478
s 168 475, 476, 517, 520 s 180(1) 488, 490 s 246(1) 478
s 168(1) 475, 476, 479, 480, s 180(3) 490 s 246(2) 478
483, 508, 532, 722 s 180(4) 489, 490, 533 s 246(3) 478
s 168(2) 475, 476 s 180(4)(a) 488, 489 s 246(4) 478
s 168(5) 476 s 180(4)(b) 488, 492 s 246(7) 478
s 169 475 s 182 490, 491 s 248 479
s 169(1) 475 s 182(1) 489, 490, 491 s 249 479
s 169(2) 475 s 182(2) 490, 491 s 250(1) 473
s 169(3) 475 s 182(3) 490, 491 s 251(1) 473
s 169(5) 475 s 182(4) 490, 491 s 251(2) 473
s 170(1) 486 s 182(5) 490, 491 s 257 486
s 170(2)(a) 489 s 182(6) 490–491 s 260 486, 533
s 170(2)(b) 489 s 183 491 s 260(1) 532, 533
s 170(3) 486 s 184 490, 491 s 260(2) 533
s 170(4) 486 s 185 490 s 260(3) 533
s 170(5) 486 s 185(4) 491 s 260(4) 533
ss 171–177 486, 490, 507 s 186 491 s 260(5)(a) 533
s 171 486, 723 s 186(1) 505 s 260(5)(b) 533
s 171(a) 484, 486 s 187 491 s 260(5)(c) 533
s 171(b) 486, 487 s 188 491 s 261(1) 533
s 172 486, 487, 490, 504, 533, s 189 491 s 261(2) 533
534, 535, 536, 723 s 190 491 s 261(3) 533
s 172(1) 487 s 191 492 s 261(4) 533
s 172(2) 487 ss 197–222 492 s 262 533
s 172(3) 487 s 217(1) 481 s 262(2) 535
s 173 486, 487, 723 s 220(1) 481 s 262(3) 533, 535
s 173(1) 487 s 221(1) 481 s 263(2) 533, 535
s 173(2) 487 s 222(1) 481 s 263(2)(a) 533, 535
s 174 486, 487, 490, 723 s 223 492 s 263(2)(b) 533, 535
xxxii  Table of statutes

s 263(2)(c) 533 s 292 518, 536, 724 s 336(1) 522


s 263(3) 534 s 292(1) 518 s 337(1) 522
s 263(3)(a)–(f) 534 s 292(3) 518 s 337(2) 522
s 263(3)(b) 535 s 292(4) 518 s 338 522, 537
s 263(4) 534 s 292(5) 518 s 338(1) 522
s 264 534 s 292(6) 518 s 338(2) 522
s 270 493 s 293 518 s 338(3) 522
s 270(3)(a) 493 s 294 518 s 338(4) 522
s 270(3)(b) 493 s 295 518 s 339 522
s 271 493 s 296 519 s 341 522, 724
s 272 494 s 296(2) 519 s 342 523, 724
s 273 494 s 296(3) 519 s 342(1) 522
s 274 493 s 296(4) 519 s 342(2) 522
s 275(1) 494 s 297 519 s 342(4) 522
s 275(5) 495 s 298(1) 519 s 355 523
s 275(6) 495 s 299(2) 519 s 356 523
s 275(8) 495 s 300 519 s 357 501, 523
s 276(1)(a) 494 s 301 519 s 358 501, 523
s 276(1)(b) 495 s 302 519 s 359 524
s 280 494 s 303 476, 519, 536 s 360 524
s 281(1) 516 s 303(1) 475, 476 s 366 521
s 281(2) 516 s 303(2) 476, 519 s 368 521
s 281(3) 491, 492, 516 s 303(4) 476, 519 s 369 521
s 281(4) 516 s 303(5) 519 s 377(2) 520
s 282(1) 517 s 303(6) 519 s 378 521
s 282(2) 517 s 304 476, 519 s 382 459
s 282(3) 517 s 305 476, 519 s 386 503
s 282(4) 517 s 306 520 s 392 503
s 282(5) 517 s 307(2) 520 s 393 503
s 283(1) 517 s 307(3) 520 s 394 503
s 283(2) 517 s 308 517 s 412(1) 481
s 283(3) 517 s 312(3) 475 s 415 503
s 283(4) 517 s 314 520, 521, 724 s 420 505
s 283(5) 517 s 314(2) 520 s 423 505
s 283(6) 519 s 314(3) 520 s 437 505
s 283(6)(a) 517 s 314(4) 520 s 439 505
s 283(6)(b) 517 s 315 521 s 475(1) 495
s 284 517 s 315(1) 520 s 476 495
s 285 517 s 316 521 s 477(1) 495
s 285(3) 517 s 317 521 s 485 495
s 285A 521 s 318 521 s 485(1) 495
s 286 517 s 319 521 s 485(2) 495
s 287 517 s 320 521 s 485(3) 495
s 288(2) 517 s 321 517 s 485(4) 495
s 288(3) 518 s 321(1) 521 s 486 495
s 288(5) 518 s 321(2) 521 s 487 495
s 289 518 s 322 521 s 488 495
s 290 518 s 322A 521 s 489 496
s 291 518 s 324 522 s 489(1) 496
s 291(2) 518 s 324(1) 522 s 489(2) 496
s 291(3) 518 s 324(2) 522 s 489(3) 496
s 291(4) 518 s 331 522 s 489(4) 496
Table of statutes  xxxiii

s 490 496 s 537(1) 499 s 643(3) 527


s 491 496 s 538 499 s 643(4) 527
s 492(1) 497 s 540(1) 511 s 644(1) 527
s 498(2)(b) 498 s 542(1) 512 s 644(2) 527
s 498(3) 498 s 542(3) 512 s 644(4) 527
s 498(5) 498 s 549 514 s 644(5) 527
s 499 497 s 550 514 s 645 527
s 501 497 s 551 514 s 646 527
s 502(1) 497 s 551(2) 514 s 647 527
s 502(2) 497 s 551(3) 514 s 648 527
s 503 497 s 551(4) 514 s 649 527
s 506 497 s 551(5) 514 s 651 528
s 507(1) 498 s 551(8) 464 s 656 528
s 507(2) 498 s 552 514 s 658 528
s 510 496, 517, 520 s 554 514 s 677 529
s 510(1) 496 s 555 515 s 678 529
s 510(2) 496 s 558 514, 515 s 678(1) 529
s 511 496 s 561 457, 515 s 678(2) 529
s 512 496 s 562 515 s 678(3) 529
s 513 496 s 562(2) 515 s 681 529
s 514 496 s 562(4) 515 s 690 528
s 515 496 s 564–566 515 s 694 517
s 516(1) 496 s 567 515 s 702 501
s 517(1) 496 s 569 515 s 738 540
s 518(2) 496 s 578 515 s 743 501
s 518(10) 496 s 580 515 s 755 455
s 519 497 s 585 515 s 757–759 455
s 519(1) 496, 497 s 586 515 s 761 455, 515, 516, 549, 552
s 519(2) 497 s 610(1) 512 s 761(2) 515
s 519(3) 497 s 610(2) 512 s 767(1) 455, 515
s 520 497 s 610(3) 512 s 767(3) 455
s 521 497 s 617 514 s 808 501
s 522 497 s 630 513 s 809 501
s 525 497 s 630(2) 513 s 830 530
s 523 497 s 630(3) 513 s 831 530
s 527 500 s 630(4) 513 s 830(2) 530
s 527(1) 500 s 630(5) 513 s 847 529
s 527(2) 500 s 633 513, 537 s 854 494, 502
s 527(4) 500 s 633(3) 513 s 855 502
s 530 500 s 633(5) 513 s 856 502
s 532 499 s 637 513 s 860 543
s 533 499 s 641(1) 517 s 860(1) 541
s 534–536 499 s 641(1)(a) 526, 527 s 874 257, 714
s 534(1) 499 s 641(1)(b) 527 s 875 501
s 534(2) 499 s 641(1)(g) 526 s 876 501
s 534(3) 499 s 641(2) 526 s 994 533, 537, 538, 540, 548,
s 535 499 s 641(3) 526 550, 566, 575, 724, 725
s 536 499 s 642(1) 526 s 994(1) 577
s 536(2) 499 s 642(2) 526, 527 s 996(1) 537
s 536(3) 499 s 642(3) 526 s 996(2) 537
s 536(4) 499 s 643(1) 527 s 998 537
s 536(5) 499 s 643(2) 527 s 999 537
xxxiv  Table of statutes

s 1075 469 s 18(3) 677 s 48 383


s 1077 478 s 19 677 s 49 383
s 1079 478 Computer Misuse Act 1990 s 49(1) 383
s 1081 469 672–674, 680, 684 s 49(2) 383
s 1136 482, 494, 524 s 1 673, 674, 681, 729 s 50 383
s 1139 460 s 1(1) 673 s 51 392
s 1141(1) 477 s 1(1)(c) 673 s 51(2) 392
s 1157 493 s 1(2) 673 s 51(3) 392
ss 1192–1199 418 s 2 674, 681, 729 s 55A(1) 384
ss 1192–1197 418 s 2(1) 673 s 55A(1)(a)–(d) 384
s 1192 418 s 3 674, 681, 729 s 55A(2)(a)–(e) 384
s 1193 418 s 3(2) 674 s 55B 384
s 1194 418 s 3(3) 674 s 55C 384
s 1195 418 s 3(4) 674 s 56 384, 392
s 1197 418 s 17(2) 673 s 56(1) 384, 389
s 1198 418 s 17(5) 673 s 56(1)(a) 384
s 1199 418 s 17(5)(a) 673 s 56(1)(b) 385, 389
ss 1200–1206 418 s 17(7) 674 s 56(1)(c) 385, 389, 392
ss 1200–1208 418 s 17(8) 674 s 56(2) 300, 388, 389, 390, 392,
s 1202 419 Consumer Credit Act 1974 184, 394, 404, 407, 719
s 1203 419 225, 264, 265, 375–402, 403, s 56(3) 389
s 1204 419 405, 408, 409, 410 s 56(4) 385
s 1206 419 s 8(1) 376 s 57 385
s 1214 495 s 9(1) 376 s 57(1) 385
sch 4, para 6 519 s 10(2) 380 s 57(2) 385
Company Directors Disqualification s 10(3) 380 s 57(3) 385
Act 1986 505, 561, 567, 722 s 11(3) 380 s 57(4) 385
s 2 477 s 12 380 ss 60–66 393
s 3 477 s 12(a) 380, 384, 385, 389, 405 s 60(1) 385, 387
s 4 477 s 12(b) 380, 384, 387, 389, 390, s 61(1) 385, 387
s 5 477 406 s 61A 385, 387
s 6 477 s 12(c) 380, 381, 384, 389, 390, s 62 386
s 8 477 391 s 62(1) 386, 718
s 9 478 s 14(1) 391 s 62(2) 386, 719
s 9A 477 s 14(1)(a)–(b) 391 s 62(3) 386
s 10 477, 557 s 14(2) 391 s 63 386
s 11 476 s 14(4) 392 s 63(1) 386, 719
Compensation Act 2006 s 15 376, 377, 405 s 63(2) 386, 718, 719
s 1 333, 348, 349 s 15(1) 377 s 63(2)(a) 386, 719
s 1(a)–(b) 333 s 15(2) 377 s 63(5) 386
s 2 333, 348, 349 s 16 377 s 64 386, 388, 407, 719
s 3 338 s 16A 379 s 64(1) 386, 387
s 16(3) 338 s 16A(1) 377 s 64(1)(a) 386, 718, 719
Competition Act 1998 675 s 16A(1)(a)–(b) 377–379 s 64(1)(b) 386, 719
pt 1 677 s 16B 379, 383 s 65(1) 386
Ch I 677, 680, 729 s 17(1) 382 s 66A 385, 387
Ch II 677, 680, 729 s 17(3)(b) 382 s 67 387
s 2(1) 677 s 19 382 s 68 387
s 2(2) 677 s 19(3) 382 s 69(1) 387
s 2(3) 677 ss 44–46 383 s 69(4) 387
s 9 677 s 45 383 s 69(7) 387
s 18(1) 677 s 46 383 s 70(1) 387
s 18(2) 677 s 47 383 s 70(1)(a) 387
Table of statutes  xxxv

s 70(1)(b) 387 s 90 401 pt I 324, 343–346, 350, 351,


s 70(1)(c) 387 s 90(1) 401 353, 717
s 70(2) 387 s 90(1)(a)–(c) 401 pt III 660
s 70(3) 387 s 90(2) 401 s 1 344
s 70(6) 387 s 90(5) 401 s 1(a)–(c) 344
s 71(1) 388 s 91 401 s 2 344
s 71(2) 388 s 92(1) 401 s 2(3) 344
s 71(3) 388 s 93 396, 399 s 3 344
s 72 388 s 94(1) 398, 408, 719 s 3(2) 345
s 72(4) 388 s 94(3) 398 s 3(2)(a)–(c) 345
s 72(8) 388 s 95 400 s 5 345
s 72(9) 388 s 95(1) 398 s 5(3) 346
s 73(2) 388 s 95A 398 Consumer Rights Act 2015 9, 119,
s 73(3) 388 s 96(1) 398 124, 127, 130, 131, 134–136,
s 73(5) 388 s 98 394, 399, 401 137, 138, 139, 140, 153, 173,
s 75 389, 391, 392, 402 s 98(1) 394, 399 206, 207, 209, 210, 214, 218,
s 75(1) 388, 389, 390, 392, 394, s 99 398, 400 219, 229, 230–239, 241, 244,
408, 719 s 99(1) 398 274–275, 285, 293, 344, 345,
s 75(3) 389 s 99(2) 398 349, 353, 390, 400, 403, 404,
s 75(3)(a)–(b) 389 s 100 398, 400 405, 669, 709, 713
s 75(4) 390 s 100(1) 398, 399, 400, 401 pt 1 206, 230, 349
s 75A 391 s 100(3) 398 pt 2 134, 136, 195, 230
s 75A(1)–(6) 391 s 100(4) 398 pt 3 237
s 76 401 s 101 399 s 1(1) 206, 230
s 76(1) 394, 398, s 127(1) 386, 387, 719 s 2(2) 206, 230
399, 400 s 127(2) 386, 387, 719 s 2(3) 206, 230
s 76(2)(a) 394 s 129 399, 400 s 2(4) 230
ss 77–79 395 s 129A 399 s 2(8) 230
s 77A 395 s 130(2) 399 s 2(9) 236
s 77B 395 s 131 396 s 3(1) 230
s 80(1) 395, 719 s 132 401 s 3(2) 230
s 80(2) 395 s 133 402 s 4(2) 246
s 81(1) 395, 408 s 133(6) 402 s 5–8 230
s 81(2) 395 s 135 402 s 9–11 238
s 85 393 s 136 402 ss 9–16 235
s 85(1) 392 s 140A 396, 397 ss 9–17 236
s 85(2) 393 s 140A(1) 396 s 9 231, 232, 241, 345
s 85(3) 393 s 140A(1)(c) 397 s 9(5) 231
s 86(1) 395 s 140A(2) 396 s 9(6) 231
s 86A 395 s 140B 396, 397, 399 s 9(7) 231
s 86B 395, 399 s 145(2) 385 s 10 231, 232, 241
s 86C 395 s 168 383 s 11 231, 232, 235, 241
s 86D 395 s 170(1) 383 s 12 232
s 86E 395 s 173(1) 388, 390, 401 s 12(1) 231, 241
s 86F 395 s 187A 395 s 12(3) 231
ss 87–89 399, 401 s 187(3)(b) 389 s 13–16 238
s 87 395, 398, 400 s 189 381 s 13 231, 232, 241
s 87(1) 399 s 189(1) 375, 376, s 14 231, 232, 241
s 87(2) 396 385, 387 s 15 231, 232, 241
s 88(1) 396 Consumer Credit Act 2006 375, s 16 231, 232, 241
s 88(2) 396 383, 387, 396 s 17(1) 231, 232, 236, 241
s 89 396 Consumer Protection Act 1987 s 17(2)–(6) 231, 232, 236, 241
xxxvi  Table of statutes

s 17(6) 236 s 24(8) 234, 236, s 49 136, 238, 239, 241, 306,
s 19 236 238, 275 341, 348
s 19(1) 231 s 24(9) 234, 239, 275 s 50 238, 239
s 19(3) 231 s 24(10) 234, 236, 239 s 50(1) 238
s 19(4) 232 s 24(11) 234 s 50(2) 238
s 19(5) 232 s 25 275 ss 51–54 238
s 19(6) 232 s 26 276 s 51 238, 239, 241, 311, 312
s 19(9) 236 s 26(3) 276 s 52 238, 239, 241
s 19(11) 236 s 26(4) 276 s 54(5) 238
s 19(14) 231, 232 s 26(5) 276 s 55 238, 239, 241
s 19(15) 232 s 26(6) 276 s 55(1) 238
s 20–22 232 s 26(7) 276 s 55(2) 238
s 20 231, 232, 233, 241 s 28 274 s 55(3) 238
s 20(1) 232 s 28(2) 274 s 55(4) 238
s 20(2) 232 s 28(3)–(10) 274 s 56 238, 239, 241
s 20(4) 232 s 28(6) 274 s 56(1) 238
s 20(5) 232 s 28(7) 275 s 56(3) 238
s 20(6) 232 s 28(10) 275 s 57 135, 136, 238, 341, 348
s 20(7) 233 s 28(11) 285 s 58 238
s 20(7)(b) 235 s 29(2) 249, 256, 273 s 58(1) 238
s 20(8) 233 s 29(3) 256, 274 s 58(2) 238
s 20(10) 233 s 30 275 s 58(3) 238
s 20(11) 233 s 31 135, 237 s 58(4) 238
s 20(12) 233 s 31(1) 236, 275 s 58(5) 238
s 20(13) 233 s 31(2) 236, 275, 276 s 58(7) 236, 239
s 20(14) 233 s 31(3) 236 s 61(1) 134
s 20(15) 233 s 31(4) 236 s 61(4) 134
s 20(16) 233 s 33(1) 236 s 61(4)(a) 134
s 20(17) 233 s 33(4) 236 s 61(4)(b) 134
s 20(19) 233 ss 34–36 238 s 61(5) 134
s 21 233 ss 34–37 237 s 61(7) 134
s 21(1) 285 s 34 237 s 61(8) 134
s 21(4) 233 s 35 237 s 62 135, 138, 230, 231, 709
s 21(6) 233 s 36 237 s 62(1) 134, 136, 230, 341, 348
s 22 231, 232, 235, 236, 241 s 36(2) 237 s 62(2) 134, 136, 341, 348
s 22(2) 233 s 37 237 s 62(3) 134
s 22(3) 233, 236 s 39 237 s 62(4) 134, 138, 709
s 23 231, 232, 233, 241 s 39(2) 237 s 62(5) 134
s 23(2) 233 s 40 237 s 62(5)(a) 134
s 23(2)(a) 234 s 41 237 s 62(5)(b) 134
s 23(3) 234 s 42 241 s 62(6) 135
s 23(4) 234 s 42(2) 237 s 62(7) 135
s 23(5) 234 s 42(4) 237 s 62(8) 135
s 23(6) 234 s 42(5) 237 s 63(1) 135
s 23(7) 234 s 42(9) 237 s 63(6) 135
s 23(8) 234 s 43 237 s 64 135
s 24 231, 232, 234, 241 s 44 237 s 64(1) 135, 138, 709
s 24(1) 234 s 45 237 s 64(2) 135
s 24(2) 234 s 46(1) 237 s 64(3) 135
s 24(5) 234 s 46(2) 237 s 64(4) 135
s 24(6) 234 s 47 135, 237 s 64(5) 135
s 24(7) 234 s 49–51 238, 481 s 65 135, 136, 230, 349
Table of statutes  xxxvii

s 65(1) 127, 135, 138, 229, 341, s 3(2) 688 Criminal Justice Act 2003 33
348, 710 s 3A(1) 687 Criminal Justice and Courts Act
s 65(2) 135 s 5A(1) 688 2015 60
s 65(3) 135 s 5B(1) 688 s 69 60
s 65(4) 135, 136 s 6(1) 688 s 70 60
s 65(5) 136 s 6(1A) 688 s 72 60
s 66(3) 136 s 6(2) 688 s 73 60
s 66(4) 349 s 8(1) 688
Data Protection Act 1984 698
s 67 136, 138, 710 s 11(2) 688
Data Protection Act 1998 687,
s 68(1) 136 s 13A 689
698–702, 703, 704, 730
s 68(2) 136 s 16(1) 689
s 1(1) 699
s 69 136 s 16(1)(e) 690
s 7 699, 701
s 70 136 s 16(3)(a) 690
s 10 700, 701
s 71 136 s 23 690
s 11 700, 701
s 72 136 s 28A 690
s 12 700, 701
s 81 679 s 29(1) 690
s 13 700
sch 2,pt 1 135 s 29(1)(c) 690
s 14 700
Contracts (Rights of Third Parties) s 30(1) 691
sch 1 700
Act 1999 l, 61, 96, 110, 112, 130, s 30(2) 691
sch 2 700
324, 344, 345, 465, 564, 708 s 30(3) 691
sch 3 701
s 1 96, 97, 98, 112 s 96 692
sch 4 701
s 1(1)(a) 96, 97 s 97 692
Defamation Act 1996
s 1(1)(b) 96, 97 s 163 689
ss 2–4 364
s 1(2) 96, 97 s 178 689
Defamation Act 2013
s 1(3) 97 s 182 690
s 1 362
s 1(5) 97 Corporate Manslaughter and
s 1(1) 362
s 1(6) 97 Corporate Homicide Act 2007
s 1(2) 362
s 2(1) 97 450–451
s 2 363
s 2(2) 97 s 1(1) 450, 451
s 2(1) 363
s 2(3) 97 s 1(3) 450
s 3 363
s 2(4) 97 s 1(4)(b) 450
s 4 363
s 2(5) 97 s 1(4)(c) 450
s 5 363
s 2(6) 97 s 2(1) 450
s 6 363
s 3 97 s 2(5) 450
s 7 363
s 4 97 s 8 450
s 8 362
s 5 97 s 8(2) 450
s 9 364
s 5(a) 97 s 8(3) 450
s 10 364
s 5(b) 97 s 9 451
s 11 60, 362
s 6 98 s 10 451
s 12 364
s 6(2) 525–526 Crime and Disorder Act 1998 46
s 13 364
s 6(2A) 564 Criminal Appeal Act 1995
Deregulation and Contracting Out
s 7(1) 98 s 2 47
Act 1994 10
s 7(2) 98 Criminal Justice Act 1993
Digital Economy Act 2010 691
Copyright Act 1956 s 52(1) 530
Disability Discrimination Act 1995
s 8 94 s 52(a) 530
632
Copyright, Designs and Patents Act s 52(b) 530
1988 687–692 s 53(1) 530 Employers’ Liability Act 1880 108
s 1(1) 687, 729 s 53(2) 531 Employers’ Liability (Compulsory
s 1(1)(a) 687, 688, 692, 729 s 53(3) 531 Insurance) Act 1969 590
s 1(1)(b) 688, 692, 729–730 s 56(1) 530 Employment Act 2002
s 1(1)(c) 688, 692, 730 s 57(1) 530 s 38 586
s 3(1) 687 s 57(2) 530 sch 2, pt 2 726
xxxviii  Table of statutes

Employment Act 2008 592, 609 pt 1 678 s 26(1)(b) 626


Employment Rights Act 1996 641, pt 2 678 s 27 626
643, 648, 727 pt 3 678 s 27(1) 626, 727
s 1 585, 586 pt 4 678 s 27(2) 626
s 3 585 pt 6 678 s 39 626
s 8 586 pt 7 678 s 40 627
s 13(1) 590 pt 8 679 s 41 583
s 27(1) 649 pt 9 679 s 60 627
s 44 637 pt 10 679 s 64(1) 627
s 50 650 pt 11 679 s 65 627
s 52 650 s 188 680, 729 s 65(1) 628
s 55(1) 641 Equal Pay Act 1970 s 65(3) 629
s 57A 642 632, 634 s 65(4) 629
s 64 649 Equality Act 2010 622–624, 652, s 65(6) 629
s 80G(1)(b) 644 655, 656 s 66(1) 630, 631
s 86 595 s 4 622 s 66(2) 630
s 94(1) 598 s 5(1)(a) 622 s 69 630
s 95 600 s 5(1)(b) 622 s 69(1)–(2) 630
s 95(1)(c) 601 s 5(2) 622 s 69(3)–(4) 631
s 95(2) 603 s 6(1) 622 s 71 628, 630
s 96 603 s 7(1) 623 s 77 631
s 97 599 s 8(1) 623 s 79(3) 628
s 97(2) 600 s 9 623 s 79(4) 628
s 98 604 s 9(1) 623 s 136 632
s 98(1) 607 s 9(2) 623 s 149(1) 632
s 98(4) 607 s 9(3) 623 s 158 632
s 99 606 s 10(1) 623 sch 1 623
s 100 606, 637 s 10(2) 623 sch 9 622, 627
s 101 606 s 11(1) 624 European Communities Act 1972
s 101A 606 s 12(1) 624 21, 28, 35
s 103 606 s 13 624 s 2(2) 11
s 104 606 s 13(1) 624, 727 s 3(1) 20
s 111 600 s 13(2) 624 Factors Act 1889
s 113 197, 609 s 13(3) 624 s 1 261
s 119 610 s 13(4) 624 s 2(1) 261, 262
s 120(1) 611 s 13(5) 624 s 8 263
s 123(1) 611 s 13(6) 624 s 9 264
s 123(6) 611 s 14 624
s 130 649 s 15 625 Fair Trading Act 1973
s 138 611 s 15(1) 625 pt III 674
s 139(1) 612, 613 s 15(2) 625 Family Law Reform Act 1966
s 139(1)(b) 613 s 16 625 s 1 107
s 139(2) 614 s 18 625 Fatal Accidents Act 1976
s 141 611 s 19(1) 625, 727 s 1A 339
s 163(2) 614 s 19(1)(a) 625 Finance Act 1976
s 203 596 s 19(1)(b) 625 s 61 14
s 212(1) 599 s 19(1)(c) 625 Financial Services and Markets Act
s 218 599 s 19(1)(d) 625 2000 343
s 218(2) 614 s 20 625 s 118 531
s 230(2) 584 s 23 625 s 118(2) 531
Enterprise Act 2002 543, 555, 559, s 24 626 s 226A 402
674, 675, 677–679, 680, 682 s 26(1) 626, 727 Fisheries Act 1981 12
Table of statutes  xxxix

Forgery and Counterfeiting Act s 89 553 s 1(3) 181, 182


1981 672 s 95 553 s 2(3) 182
ss 122–124 724 Legal Services Act 2007 56–58
Gulf Refining Act 1965 357 s 122 539, 548, 566, 575, 725 pt 1 56
s 122(1) 517, 549 pt 2 57
Health and Safety at Work etc Act s 123 576 pt 3 57
1974 450, 636–641, 653, 656, s 123(1) 550 pt 5 57
728 s 123(2) 550 s 1(3) 57
s 2(1) 637 s 124 567 s 12(1) 57
s 2(2) 637 s 124(1) 551 s 12(1)(a) 57
s 2(3) 637 s 124A 567 s 12(1)(b) 57
s 3 637 s 127 552 s 12(1)(d) 57
s 4 637 s 128 552 s 12(1)(e) 57
s 6 638 s 130 552 s 12(1)(f) 57
s 6(1) 637 s 131 552, 554 Limitation Act 1980 106, 200, 202,
s 6(2) 638 s 132 552 598
s 6(3) 638 s 133 553 s 2 349
s 6(4) 638 ss 165–167 554 s 4A 363
s 7 638 s 178 554 s 5 200
s 8 638 s 195 550 s 8(1) 200
s 9 638 s 212 557 s 11 350
s 21 637 s 213 557, 567 s 11(5) 350
s 22 637 s 214 487, 557, 567 s 12 350
s 25 637 s 214A 567 s 14 350
s 36 638 s 216 468 s 14A 330, 349, 363
s 37 638 s 238 558 s 14B 349
Hire Purchase Act 1964 260, 265, s 239 558 s 32 147
266 s 240 558 s 32(1)(a) 350
pt III 265, 268, 715 s 245 558 s 32(1)(b) 350
s 27 157 s 423 558 s 33 350
s 29(1)(b)(iii) 265 Interpretation Act 1978 14, 705 s 36(1) 350
Human Rights Act 1998 15, 20, Limited Liability Partnerships Act
28–30, 32, 33, 34, 36, 38, 60, Judicature Act 1873 5 2000 561, 721
354, 359, 645 Judicature Act 1875 5 s 1(5) 561
s 2 30 Judicial Committee Act 1933 43 s 2(1) 562
s 2(1) 20, 29 s 2(1)(a) 562
s 3 30 Land Registration Act 2002 57 s 2(1)(b) 562
s 3(1) 15, 29 Landlord and Tenant Act 1954 448 s 2(1)(c) 562
s 4 29 Late Payment of Commercial Debts s 2(2) 562
s 6 30 (Interest) Act 1998 406 s 4(1) 562
s 6(1) 20, 29, 354 Law of Property (Miscellaneous s 4(2) 562
s 6(3) 29 Provisions) Act 1989 s 4(3) 562, 565
s 7 29 s 1(2) 106 s 4(4) 563, 564
s 10 29 s 1(3) 106 s 5 564
s 13(1) 29 s 2(1) 106 s 5(1) 564
s 19 30 Law Reform (Contributory s 5(2) 564
Negligence) Act 1945 193, 351 s 6 564
Income Tax Act 1952 s 1 340 s 6(1) 564
s 25(3) 11 Law Reform (Frustrated Contracts) s 6(2) 564
Insolvency Act 1986 440, 540, 546, Act 1943 177, 188, 201, 203, s 6(3) 564, 566
559, 561, 564 711 s 7 565
s 74 567 s 1(2) 181 s 8(1) 563
xl  Table of statutes

s 8(2) 563 Parliament Act 1911 8 s 35(d) 437


s 8(3) 563 Parliament Act 1949 8 s 36(1) 436
s 8(4) 563 Partnership Act 1890 2, 9, 442, s 36(2) 436
s 9 562, 566 561, 563 s 36(3) 436
sch 1, pt 1 562 s 1 417 s 38 437
Limited Partnerships Act 1907 421, s 1(1) 412, 415, 417, 719, 720 s 39 437
440, 442, 444, 561, 721 s 1(2) 412, 413 s 42(1) 439
Local Government Act 1971 s 2 415 s 44 438
s 221 357 s 2(1) 415 s 44(a) 438, 439, 440
Local Government Act 1972 10 s 2(2) 415 s 44(b) 438, 439
s 2(3) 416 s 45 413
Malicious Damage Act 1861 659 s 5 418, 429, 430, 431, 434, Patents Act 1977 693
Matrimonial Causes Act 1973 453 440, 443, 564 s 1(1) 693
Mental Capacity Act 2005 437 s 7 432, 443 s 1(2) 693
Mental Health Act 1983 350 s 9 435 s 1(3) 693
Merchant Shipping Act 1988 28 s 10 430, 431, 434, 435, 443, 564 s 14(3) 693
The Mesothelioma Act 2014 338 s 11 435 s 14(5) 693
Minors Contracts Act 1987 s 13 435 s 30(1) 694
s 2 109 s 14 433 s 39(1) 694
s 3(1) 109 s 14(1) 432, 433, 434 s 39(2) 694
Misrepresentation Act 1967 115, s 14(2) 433 s 40 694
118, 147, 149 s 15 435 s 41 694
s 1 118, 147 s 16 435 s 55 695
s 2(1) 145–146, 149, 150, 151, s 17 435 s 60(1) 695
168, 310, 343, 466, 710 s 18 436 s 60(5) 695
s 2(2) 146, 150–151, 168, 710 s 19 418, 422 s 61(1) 695
s 3 132, 591 s 20 426 Patents Act 2004 693, 694
s 20(1) 426, 441, 720 Pharmacy and Poisons Act 1933
National Minimum Wage Act 1998 s 21 426, 441, 720 s 18 68
645, 654 s 24 424, 425, 429, 441, 444, Plant Varieties Act 1997 693
565, 720 Powers of Criminal Courts
Occupier’s Liability Act 1957 131, s 24(1) 420, 421, 424 (Sentencing) Act 2000
136, 346–349, 350, 351, 353, 654 s 24(2) 424 s 35 7
s 1(2) 347 s 24(3) 424 Prevention of Terrorism
s 1(3) 347 s 24(4) 420, 424 (Temporary Provisions) Act
s 2(1) 348 s 24(5) 421, 424 1989 32
s 2(2) 347, 717 s 24(6) 424 Protection of Birds Act 1954
s 2(3) 348 s 24(7) 421, 424, 425 s 6(1) 66
s 2(4)(a) 348 s 24(8) 418, 425 Provisions of Oxford 1258 5
s 2(4)(b) 348 s 24(9) 425 Public Interest Disclosure Act 1998
Occupier’s Liability Act 1984 s 25 425, 436, 565 589
346–349, 350, 351, 353 s 26(1) 420 Public Order Act 1936
s 1(3) 349 s 27 420 s57
s 1(3)(a)–(c) 349 ss 28–30 426, 565 Purchase Tax Act 1963
s 1(4) 349, 718 s 28 427 sch 1 89
s 1(5) 349 s 29 427, 428, 429
s 1(6) 349 s 29(1) 427 Race Relations Act 1976 622, 624,
s 1(8) 349 s 30 418, 428, 429 632
Offences Against the Person Act 1861 s 32(c) 420 Redundancy Payments Act 1965
s 57 12 s 33(1) 421 612
Official Secrets Act 1920 s 34 437 Rehabilitation of Offenders Act
s 3 12 s 35 437 1974 633
Table of statutes  xli

Restriction of Offensive Weapons s 13(3) 213 s 20A 250, 251, 252, 253, 254,
Act 1959 s 14 210 255, 256, 267, 269, 270,
s 1(1) 13, 68 s 14(2) liii, 209, 214–219, 220, 290, 291, 686, 714
Road Traffic Act 1988 234 221, 222, 223, 224, 226, s 20A(3) 253
s 149 341 227, 231, 240, 243, 247, s 20A(4) 253
254, 284, 345, 713 s 20B 253, 270
Sale and Supply of Goods Act 1994 s 14(2A) 216, 218 s 20B(1)(a) 253
9, 216, 284, 285–286 s 14(2B) 216, 218 s 20B(1)(b) 253
Sale of Goods Act 1893 9, 147, 714 s 14(2B)(a) 218 s 20B(3)(c) 253
Sale of Goods Act 1923 of New s 14(2B)(c) 219 s 21 260, 262, 266, 715
South Wales s 14(2B)(d) 218 s 21(1) 260
s 28 264 s 14(2C) 215, 217, 218 s 21(2) 261, 266
Sale of Goods Act 1979 1, li, liii, 9, s 14(2C)(a) 215, 218 s 21(2)(a)–(b) 266
119, 131, 136, 137, 172, 190, s 14(2C)(b) 215, 218 s 22 266
206, 207–224, 230, 235–236, s 14(2C)(c) 223 s 23 148, 155, 262, 263, 264,
239–240, 286, 306, 344, 403, ss 14(2D)–(2F) 225 266, 267, 270, 715
414, 709, 712 s 14(3) 126, 209, 218, 219–222, s 24 263, 264, 267, 270, 279,
s 2(1) 207, 208 223, 226, 240, 243, 713 715
s 3(2) 108 s 15 210, 231 s 25 258, 264, 265, 266, 268,
s 3(3) 108 s 15(1) 75, 214, 222 405, 714, 715
s 6 152, 248, 249, 267 s 15(2) 209, 223–224, 226, 240, s 25(1) 264
s 7 152, 177, 178, 182, 248, 243 s 25(2) 264
249, 250, 267, 269 s 15(2)(a) 223 s 26 276
s 8 277 s 15(2)(c) 223, 224 s 27 272
s 8(1) 75, 715 s 15A 124, 173, 214 219, 223, s 28 272, 277, 715
s 8(2) 75, 715 224, 228, 283 s 29 273
s 8(3) 715 ss 16–20 246 s 29(1) 273
s 9 82, 345 ss 16–18 249 s 29(2) 273, 715
s 10 274 s 16 250, 251, 255, 267, 291 s 29(3) 273
s 10(1) 277 s 17 247, 249, 250, 251, 255, s 29(5) 175, 273
s 10(2) 274, 715 267, 290, 291, 714 s 30 275
s 11(2) 283 s 18 247, 249, 250, 251, 267, s 30(1) 174, 275, 715
s 11(4) 228, 283 290, 714 s 30(2) 275, 715
ss 12–15 209, 229, 231, 404, 405 s 18, Rules 1–4 247, 251, 263 s 30(2A) 283
s 12 131, 153 s 18, Rule 1 249, 251, 263, 267, s 30(3) 275, 715
s 12(1) 209, 210–211, 212, 226, 278 s 30(5) 275
228, 236, 239, 712 s 18, Rule 2 247, 248, 249, 251, s 31 276
s 12(2) 209, 211–212, 226, 236, 267, 714 s 31(1) 275
239, 712 s 18, Rule 3 248, 249 s 31(2) 275, 276, 715
s 12(2)(a) 211 s 18, Rule 4 248, 249, 256 s 32(1) 273
s 12(2)(b) 211, 212 s 18, Rule 5 248, 251, 256, 267, s 32(2) 273, 289
s 12(3) 210, 212 714 s 32(3) 288
s 12(4) 212 s 18, Rule 5(1) 251, 255 s 32(4) 273
s 12(5) 212 s 18, Rule 5(2) 251, 255 s 35 235, 283, 284, 286
s 12(5A) 210, 211 s 18, Rule 5(3) 252, 253, 255, s 35(1)(a) 235, 283, 284
ss 13–15 219, 228, 229, 235, 269 s 35(1)(b) 235, 283, 284
242, 283 s 19 253, 256, 257 s 35(2) 283, 284
s 13 130, 210, 212, 213, 214, s 19(1) 256 s 35(4) 235, 283, 284, 285
216, 223, 231 s 19(2) 288, 289, 290 s 35(5) 235, 284
s 13(1) 209, 212–214, 222, 226, s 20 254, 267, 290, 714 s 35(6) 284, 285
239, 243, 713 s 20(2) 273 s 35(7) 285
s 13(2) 213 s 20(3) 254 s 35A 285
xlii  Table of statutes

s 36 283 Statute of Frauds 1677 s 14(1) 226, 227–228, 240


s 37 281 s 4 106, 107 s 14(2) 228
s 37(1) 272, 278, 281 Street Offences Act 1959 s 15 311, 312, 481
s 37(2) 278, 281 s 1(1) 13 s 15(1) 226, 228, 240
s 38 278 Supply of Goods (Implied Terms) s 15(2) 228
s 38(1) 715 Act 1973 9, 119, 131, 136, 137, Supreme Court Act 1981
s 38(a) 278 153, 206, 207, 229, 230, 240, s 33 198
s 38(b) 278 390, 404, 709 s 37(3) 198
s 39(2) 279 ss 8–11 225 s 69 60
s 41(1) 278 s 8 131
s 43 278 s 8(1)(a) 224, 225, 226, 228 Theft Act 1968 9, 61, 672
s 43(a)–(c) 278 s 8(1)(b) 224, 226 Timeshare Act 1992 184
s 46(4) 279 ss 9–11 131 Torts (Interference with Goods)
s 47(1) 279 s 9(1) 224, 226, 243 Act 1977 361
s 47(2) 279 s 10 225 s 2(2) 361
s 48(1) 278, 279 s 10(2) 224, 226, 243 s 3 361
s 48(2) 279 s 10(3) 224, 226, 243, 713 Trade Descriptions Act 1968 660,
s 49 715 s 11(1) 224, 226 663, 668, 670
s 49(1) 280 s 11A 124, 228 s 1(1) 668
s 49(2) 280 ss 12–15 224 s 24 668
s 50 280, 281 Supply of Goods and Services Act Trade Marks Act 1938 696
s 50(1) 280 1982 119, 131, 136, 137, 153, Trade Marks Act 1994 696, 703, 730
s 50(2) 280 206, 207, 208, 227, 229, 230, s 1(1) 696
s 50(3) 280, 281, 282, 715 240, 403, 405, 702 s 3 696
s 51 282, 283 pt I 225 s 4 696
s 51(1) 282 pt II 226 s 5 696
s 51(2) 282, 716 ss 2–5 225 s 10 697
s 51(3) 282, 716 s 2(1) 225, 226, 228, 713 Trade Union and Labour Relations
s 52 286 s 2(2) 225, 226 (Consolidation) Act 1992 9
s 53 282 s 3 286 s 137 607
s 53(1) 282 s 3(2) 225, 226 s 164 649
s 53(2) 282 s 4 286 s 178 586
s 53(3) 282, 283, 716 s 4(2) 225, 226, 227 s 188 615
s 54 281, 282 s 4(2B)–(2D) 225 s 192 649
s 57 286 s 4(5) 225, 226 s 207A(2) 593, 609
s 57(1) 72, 286 s 5(2) 225, 226 s 207A(3) 593, 609
s 57(2) 72, 286 s 5A 124, 228 s 270A(2) 609
s 57(3) 72, 286 ss 7–10 225
s 57(4) 72, 286 s 7(1) 225, 226 Unfair Contracts Terms Act 1977
s 57(5) 72, 286 s 7(2) 225, 226 9, 126, 127, 130–134, 136, 137,
s 57(6) 286 s 8(2) 225, 226, 243 138, 140, 229, 240, 242, 243,
s 59 284 s 9(2) 225, 226, 243, 713 284, 287, 348, 353, 406, 591
s 61 246, 252, 273 s 9(2B)–(2D) 225 s 1 349
s 61(1) 208 s 9(3) 243 s 1(1) 130, 131, 135
s 61(3) 260 s 9(5) 225, 226, 243 s 1(1)(a) 130
s 61(5) 214, 247 s 10(2) 225, 226 s 1(1)(b) 131
Sale of Goods (Amendment) Act s 10(3) 243 s 1(1)(c) 131, 348
1994 9, 266 s 10A 124, 228 s 1(3) 130
Sale of Goods (Amendment) Act ss 13–15 227, 238 ss 2–7 130
1995 9 s 13 131, 226–227, 228, 229, s 2 132, 229, 230, 499
Sex Discrimination Act 1975 24, 240, 243, 306, 713 s 2(1) 98, 127, 130, 131, 135, 137,
622, 624, 626 s 13(1) 225, 226, 227 229, 240, 341, 348, 584, 709
Table of statutes  xliii

s 2(2) 98, 130, 131, 137, 229, s 7(1A) 229 s 13(c) 133
230, 240, 341, 348, 709 s 7(2) 131 s 13(2) 133
s 2(3) 135, 348 s 8 132, 137 sch 2 132–133, 229
s 3 131–132, 133 s 10 133 Unsolicited Goods and Services Act
s 3(a) 132, 499 s 11(1) 132 1971
s 3(b) 132 s 11(2) 132 s 2 70
s 3(c) 132 s 11(5) 132 s 3 70
s 6 131, 132, 137, 229 s 12(2) 287
s 6(1) 131 s 13 133 Witchcraft Act 1735 2
s 6(1A) 131, 229 s 13(a) 133
s 7 131, 132, 229 s 13(b) 133
Table of statutory instruments

Agency Workers Regulations 2010, SI 2010/93 583, reg 4(2) 316


635–636, 653 reg 4(3) 316
reg 3 635 reg 5(1) 309
reg 5 635, 636 reg 6(1) 316
reg 6(1) 636 reg 6(2) 309
reg 6(2) 636 reg 14 314
reg 6(3) 636 reg 15 314
reg 7 636 reg 16 314
reg 12(1) 636 reg 17 314
reg 13(1) 636 reg 17(2) 314
reg 16 636 reg 17(6) 314
Artist’s Resale Rights Regulations 2006, SI 2006/346 reg 17(7) 314
692 reg 17(8) 314
reg 18 314
Business Protection from Misleading Marketing reg 19 314
Regulations 2008, SI 2008/1276 660, 681, 684 sch 313–314
reg 3 669, 671 sch, para 2 313
reg 3(1) 669 sch, para 3 313
reg 3(2) 669, 670 sch, para 4 314
reg 3(2)–(5) 669–670 sch, para 5 314
reg 3(2) 669–670 Companies (Shareholders’ Rights) Regulations 2009,
reg 3(3)–(5) 670 SI 2009/1632 522
reg 4 670, 671 Company and Business Names Regulations 1981, SI
reg 5 671 1981/1685 418, 466
reg 6 669 Construction (Working Places) Regulations 1966, SI
reg 9 670 1966/94 583
reg 11 670 Consumer Contracts (Information, Cancellation
reg 12 670 and Additional Charge) Regulations 2013, SI
2013/3134 78, 393, 394, 713, 714
Cancellation of Contracts made in a Consumer’s pt 1 184
Home or Place of Work etc. Regulations 2008, SI pt 2 186, 188
2008/1816 184 pt 3 184
Civil Procedure Rules 1998, SI 1998/3132 3, 48, 55, reg 8 186
62 reg 9 186, 231, 238
Commercial Agents (Council Directive) Regulations regs 9–14 188
1993, SI 1993/3053 10, 25, 312, 313–316, 317, regs 10–16 187, 238
320 reg 10 186, 187, 231
reg 2(1) 309, 313 reg 11 187
reg 2(2)(a) 313 reg 12 187
reg 2(3) 313 reg 13 187, 231, 238
reg 2(4) 313 reg 14 187
reg 3(1) 309, 314 reg 15 187
reg 3(2) 309 reg 16 188
reg 3(2)(a)–(c) 309 reg 17 187
reg 4 316 reg 18 188
Table of statutory instruments  xlv

reg 29 185 reg 3(4) 660, 662


reg 30 185 reg 5 662, 667, 729
reg 31 186 reg 5(1) 662
reg 32 186 reg 5(2) 662, 663
reg 34 186 reg 5(3) 662, 663
reg 35 186 reg 5(3)(a) 663
reg 36 186 reg 5(3)(b) 663, 667
reg 37 186 reg 5(4) 662, 663
reg 38 186 reg 5(4)(b) 662, 663
reg 40 70 reg 5(4)(g) 662
reg 41 70 reg 5(4)(j) 662
sch 1 186 reg 5(5)(e) 663
sch 2 186, 187 reg 6 662, 663–664, 667, 729
sch 3 187 reg 6(1) 663, 664
Consumer Credit (Advertisements) Regulations 2010, reg 6(1)(a)–(d) 663, 664
SI 2010/1012 382 reg 6(1)(a) 664
Consumer Credit (Agreements) Regulations 2010, SI reg 6(2) 663, 664
2010/1014 385 reg 6(2)(a) 664
Consumer Credit (Disclosure of Information) reg 6(3) 664
Regulations 2010, SI 2010/1013 384 reg 6(4) 664
Consumer Credit (Early Settlement) Regulations reg 6(4)(d)(i) 664
2004, SI 2004/1483 398 reg 7 662, 664–665, 667, 729
Consumer Credit (Enforcement, Default and reg 7(1) 665
Termination) Regulations 1983, SI reg 7(2) 665
1983/1561 396 reg 7(2)(a)–(d) 665
Consumer Credit (EU Directive) Regulations 2010, SI reg 8 659, 667, 671, 684, 729
2010/1010 384, 385 reg 8(1) 667
Consumer Credit (Exempt Agreements) Order 2007, reg 8(2) 667
SI 2007/1168 regs 9–12 667, 684, 729
sch 2 379 reg 9 667, 671, 729
Consumer Protection (Amendment) Regulations reg 10 663, 667, 671, 729
2014, SI 2014/870 669 reg 11 664, 667, 671, 729
Consumer Protection (Distance Selling) Regulations reg 12 665, 671, 729
2000, SI 2000/2337 184 reg 16 668, 684
reg 19(7) 666 reg 17 667, 668
Consumer Protection from Unfair Trading Regulations reg 17(1) 667
2008, SI 2008/1277 660–669, 670, 681, 682, 683 reg 17(1)(a) 668
Pt 1 660 reg 17(1)(a)(ii)–(iii) 668
Pt 2 660 reg 17(2) 668
Pt 3 660 reg 18 668
Pt 4 660 reg 27A 70, 669
reg 2(1) 660 sch 1 662, 665, 681, 684, 729
reg 2(2)–2(6) 661 sch 1, paras 1–9 665, 667
reg 2(2) 661 sch 1, paras 10–31 666, 667
reg 2(4) 661 sch 1, paras 12–27 667
reg 2(5) 661 sch 1, paras 28–31 667
reg 2(6) 661 Consumer Rights (Payment Surcharges) Regulations
reg 3 683 2012, SI 2012/3110 136, 406
reg 3(1) 660 Control of Substances Hazardous to Health
reg 3(3) 660, 661 Regulations 2002, SI 2002/2677 639
reg 3(3)(a) 661, 667, 729 Copyright and Related Rights Regulations 2003, SI
reg 3(3)(b) 661, 667, 729 2003/2498 687, 688, 692
xlvi  Table of statutory instruments

Electronic Commerce (EC Directive) Regulations reg 7(7) 565


2002, SI 2002/2013 78, 107 reg 7(8) 565
reg 9(1) 107 reg 7(9) 565
reg 9(2) 107 reg 7(10) 565
reg 9(3) 107 reg 8 565
reg 11 78, 107
reg 11(1)(a) 107 Management of Health and Safety at Work
reg 11(1)(b) 107 Regulations 1992, SI 1992/2051 642
reg 11(2) 107 Management of Health and Safety at Work
reg 13 107 Regulations 1999, SI 1999/3242 638
reg 15 107 Manual Handling Operations Regulations 1992, SI
Equal Pay (Amendment) Regulations 1983, SI 1992/2793 639
1983/17 94, 630 Maternity and Parental Leave Regulations 1999, SI
Equality Act 2010 (Equal Pay Audits) Regulations 1999/3312 642
2014, SI 2014/2559 632
National Minimum Wage Regulations 1998, SI
Fixed-term Employees (Prevention of Less Favourable 1998/2574 648
Treatment) Regulations 2002, SI
2002/2034 636, 653, 728 Occupational Pension schemes (Disclosure of
reg 3(1) 635 Information) Regulations 1986, SI 1986/1046 586
reg 3(2) 635
reg 4 635 Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000, SI 2000/1551 636,
General Product Safety Regulations 2005, SI 653
2005/1803 671–672, 680, 681, 684 reg 2 634
reg 2 671 reg 2(1) 634
reg 5 671, 681 reg 2(2) 634
reg 7(1) 672 reg 2(3) 634, 635
reg 7(2) 672 reg 2(3)(a) 634
reg 7(3) 672 reg 2(3)(a)–(f) 634
reg 8 671, 672 reg 2(4) 634
reg 9 672 reg 2(4)(a)–(b) 634
reg 13 681 reg 2(4)(a)(i) 634
reg 29 672 reg 5(1) 633
reg 31 672 reg 5(2)(b) 633
reg 6 633
Health and Safety (Display Screen Equipment) Paternity and Adoption Leave Regulations 2002, SI
Regulations 1992, SI 1992/2792 639 2002/2788 643, 644
Payment Services Regulations 2009, SI 2009/209
Late Payment of Commercial Debts Regulations 2002, 393
SI 2002/1674 406 reg 59 393
Limited Liability ptnerships Regulations 2001, SI reg 61 393
2001/1090 562 reg 62 393
reg 4 567 reg 62(1) 393
reg 4(2) 567 reg 62(2) 393, 394
reg 7 564, 565 reg 62(3) 393, 394
reg 7(1) 565 reg 63 393
reg 7(2) 565 Personal Protective Equipment at Work Regulations
reg 7(3) 565, 566 1992, SI 1992/2966 639
reg 7(4) 565 Provision and Use of Work Equipment Regulations
reg 7(5) 565 1998, SI 1998/2306 448, 638
reg 7(6) 565 reg 5(1) 639
Table of statutory instruments  xlvii

Road Vehicles (Construction and Use) Regulations Transfer of Undertakings (Protection of Employment)
1986, SI 1986/1078 Regulations 2006, SI 2006/246
reg 8 217 reg 4(1) 646
reg 4(2) 646
Sale and Supply of Goods to Consumers Regulations reg 4(7) 646
2002, SI 2002/3045
reg 15 236 Unfair Terms in Consumer Contracts Regulations
Stop Now Orders (EC Directive) Regulations 2001, SI 1999, SI 1999/2083 134, 195
2001/1422 674 reg 5(1) 134
sch 2 134
Trade Marks Rules 1994, SI 1994/2583 696
Trade Marks Rules 2008, SI 2008/1797 696 Working Time Regulations 1998, SI 1998/1833 586,
Transfer of Undertakings (Protection of Employment) 606, 646–648, 656, 728
Regulations 1981, SI 1981/1794 599, 607, 646, Workplace (Health Safety and Welfare) Regulations
652, 656, 728 1992, SI 1992/3004 638
Table of European legislation

Directives EEC Treaty (Treaty of Rome) 1957 art 4 31


75/117/EEC (Equal Pay) 627 21, 22 art 5 31, 32
76/207/EEC (Equal Treatment) art 137 728 art 5(1) 31
627 European Coal and Steel Treaty art 5(2) 31
77/187/EEC (Acquired Rights 1952 556 art 5(3) 31
Directive) 646 Single European Act 1986 21 art 6 31, 33
89/104/EEC (European Trade Treaty of Amsterdam 1997 21 art 6(1) 31
Mark Directive) 696 art 11 22 art 6(2) 31
92/85/EEC (Pregnant Workers Treaty on European Union art 6(3) 31
Directive) 641 (Maastricht Treaty) 1992 21 art 7 31
93/104/EEC (Working Time Treaty on the Functioning of the art 8 31, 356
Directive) 646 European Union 24 art 8(1) 31, 354
94/33/EC (Young Workers art 34 24 art 8(2) 31
Directive) 646 art 101 675, 676, 679, 380, 681 art 9 31
94/46/EC (Data Protection art 101(1) 675, 677 art 10 32
Directive) 698 art 101(1)(a)–(e) 675 art 10(1) 31
98/23/EC (Part-time art 101(2) 675 art 10(2) 31
Workers) 633 art 101(3) 675, 676, 677 art 11 31, 32
2001/39/EC (Information Society art 102 675, 676, 677, 679, 680, art 12 32
Directive) 687 682 art 13 31
2005/29/EC (Unfair Trading art 102(a)–(d) 676 art 14 32
Directive) 660 art 153 638 art 15 32
2006/2004/EC (Consumer art 157 24, 580, 627, 628, 631 art 15(3) 32
Protection Cooperation) 669 art 234 23 art 16 32
2008/48/EC Consumer Credit art 258 28 art 17 32
Directive 375 art 259 28 art 35 32
2011/77/EU Sound Recordings art 263 27 First Protocol 32
Copyright 689 art 264 27 art 1 32
2011/83/EC Consumer Rights art 267 27, 28, 44 art 2 32
Directive 230 art 258 28 art 3 32
art 259 28 Thirteenth Protocol 32
art 267 28
Regulations Treaty of Lisbon 2007 21
1/2003 (Modernisation
Regulation) 676
art 6 677
Conventions
2006/2004 Consumer Protection
Charter of Fundamental Rights 22
Cooperation 669
European Convention on the
Protection of Human Rights and
Treaties Fundamental Freedoms
EC Treaty 1992 28, 706 1951 36
art 10 25 art 1 31
art 81 677, 682, 729 art 2 31
art 82 677, 682, 729 art 3 31
Study skills

Get organised from the start After the lecture/tutorial


When you start your course, decide how much time As soon as a lecture or tutorial is over, it is tempting to
you can afford to devote to your study of each subject. file your notes away until revision time. You probably
Be realistic when doing this. There will be a lot to understood the ground that was covered and there-
learn and that is why your time must be managed as fore assumed that it would easily be remembered
effectively as possible. Listen to your lecturers, who later. However, it is an excellent idea to go over what
will explain what is expected of you. Having made was covered within 24 hours. This need not take too
your decision to devote a certain amount of time per long. You should check that all the points were under-
week to a particular subject, stick to what you have stood, and if any were not you should clear them
decided. If it will help, draw up a weekly chart and up with the help of your notes and this book. Make
tick off each period of study when you complete it. more notes as you do this. Give these notes a separ-
You should attend all your lectures and tutorials, and ate heading, something like ‘Follow up notes’. These
should always read the pages of this book which are additional notes should always indicate which aspects
recommended by your lecturer. Steady work through- of the class seemed important. They should also
out the year is the key to success. condense your notes, to give you an overview of the
material covered.
In many cases your lecturer will be setting your
Take advantage of what your lecturer
exam or coursework. If a particular area or topic is
tells you
flagged up as important, it is more likely to be assessed
Many lecturers set and mark their students’ assess- than one which was not. Even if your assessment is
ments. Even if the assessment is externally set and externally set, your lecturer is likely to know which
marked, your lecturer is likely to have experience of areas are the most important, and thus most likely to
past assessments and to know what the examiners are be tested. Fifteen minutes should be plenty to go over
looking for. Take advantage of this. If you are told that a one-hour class. Each 15 minutes spent doing this is
something is not in your syllabus, don’t waste time on likely to be worth far more time than an extra 15 min-
it. If you are told that something is particularly impor- utes of revision just before the exam.
tant, make sure you know it well. If you are told to go
away and read something up, make sure that you do.
Answering questions
And if you are told to read certain pages of this book,
make sure that you read them. You may be told to read What skills are you expected to show?
this book after you have been taught, so as to reinforce In 1956, Benjamin Bloom categorised the skills which
learning. Or you may be told to read it beforehand, so students are likely to be required to display when being
that you can apply what you have read in the class- assessed. These skills are shown in Figure 1. Each skill
room. Either way, it is essential that you do the reading. in the pyramid builds upon the one beneath it.
l  Study skills

Evaluation

Synthesis

Analysis

Application

Comprehension

Knowledge

Figure 1  Study skills

Before deciding which skills you might be required cation, for showing how the Act would have affected
to demonstrate, a brief explanation of the skills, in a the pre-Act cases such as Tweddle v Atkinson and
legal context, needs to be made. Beswick v Beswick. Knowledge of the Act, and com-
Knowledge, on its own, is not nearly as important prehension of it, would be needed in order to achieve
as many students think. On the one hand, knowl- this. But if there was no application then the question
edge is essential because without knowledge none of would not have been answered.
the other skills are possible. But mere knowledge is Application of the law is very commonly required
unlikely to score highly in a traditional law assessment. by a legal question. There is little point in knowing and
Most assessments require comprehension, analysis and understanding the law if you cannot apply it. The typi-
application. An exam question might require mere cal legal problem question, which sets out some facts
knowledge by asking something such as, ‘List the terms and then asks you to advise the parties, always requires
implied by the Sale of Goods Act 1979’. But not many application of the law. It is not enough to show that you
assessments are so limited. Far more likely is a question understand the relevant area of law, although some
such as, ‘Describe the terms implied by the Sale of Goods credit is likely to be given for this, you must then apply
Act 1979 and analyse the extent to which they adequately the law to advise the parties. These problem questions
protect buyers of goods’. This is a very different question. frequently also allow you to demonstrate analysis,
It requires knowledge, of course, but it also requires the synthesis and evaluation, as we shall see below when
higher level skills. It is these later skills which gain the we consider how to answer such a question. However,
higher marks. In ‘open-book’ exams especially, mere this is not always true. When there is only one relevant
knowledge is likely to be worth very little. case, and where it is obviously applicable, mere appli-
Comprehension cannot be shown without knowl- cation of that case is all that is required.
edge. Some questions do require just knowledge and Analysis of the law occurs when you recognise pat-
comprehension, for example, ‘Explain the effect of the terns and hidden meanings. You break the law down
Contracts (Rights of Third Parties) Act 1999’. But you into component parts, differentiating and distinguish-
should make sure that this is all the question requires. ing ideas. For example, you might explain how one
For example, if the question had said, ‘Consider the case (Adams v Lindsell, set out at 3.2.1) introduced
extent to which the Contracts (Rights of Third Parties) the postal rule on acceptance of contracts, and how
Act 1999 has changed the law relating to privity of another case (Holwell Securities Ltd v Hughes, set out
­contract’, most of the marks would be gained for appli- slightly later at 3.2.1) limited its application. Having
Study skills  li

made such an analysis of the law you could apply it to So don’t panic or read through too hurriedly. Next,
a problem question. see what the question asks you to do. (This is usually
Synthesis is the gathering of knowledge from sev- spelled out in the first or the last sentence of the ques-
eral areas to generalise, predict and draw conclusions; tion.) Then identify the legal issues which the question
precisely the skill required to deal with the more com- raises. Finally, apply the relevant cases to the issues
plex problem questions! and reach a conclusion.
Evaluation of the law requires you to compare The following question can be used as an example.
ideas and make choices. It is a useful skill in answer- It requires knowledge of the law relating to offer and
ing problem questions. For example, in a problem acceptance of contracts. The law in this area is set out
question on offer and acceptance you might need at the beginning of Chapter 3, between 3.1 and 3.22,
to evaluate the applicability of Adams v Lindsell and at the beginning of Chapter 4, between 4.1 and
and Holwell Securities Ltd v Hughes. Evaluation 4.1.1.1. So it might be a good idea to read these pages
is often asked for in essays, for example, ‘Consider before you use the example.
the extent to which the Consumer Rights Act 2015
Acme Supastore advertised its ‘price promise’ heavily in
has improved the protection given to consumers who
the Nottown Evening News. This promise stated that Acme
buy defective goods and services from traders. Do you
was the cheapest retailer in the city of Nottown and that
consider consumers now to be adequately protected?’
it would guarantee that this was true. The advertisement
When you evaluate you are giving your own opin-
stated: ‘We are so confident that we are the cheapest in
ion, realising that there are no absolutely right and the area that we guarantee that you cannot buy a tele­
wrong answers. But it is not pure opinion which vision anywhere in Nottown cheaper than from us. We
is required. You must demonstrate the lower level also guarantee that if you buy any television from us and
skills described above in order to give some justi- give us notice in writing that you could have bought it
fication for your opinion. You also evaluate when cheaper at any other retailer within five miles of our Su-
deciding which legal principles are most applicable pastore on the same day we will refund double the price
and should therefore be applied. difference. Offer to remain open for the month of Decem-
When you look at past assessments, try to work out ber. Any claim to be received in writing within 5 days of
which skills are required. Then make sure that you purchase.’ Belinda saw the advertisement and was per-
demonstrate these skills. Do not introduce the higher suaded by it to buy a television from Acme Supastore for
level skills if they are not expected of you in a particu- £299. The contract was made on Monday 3 December.
lar question. For example, the very simple question, On Saturday 8 December, Belinda found that a neigh-
‘List the terms implied by the Sale of Goods Act 1979’, bouring shop was selling an identical model of television
is looking only for knowledge. No extra marks will be for £289 and had been selling at this price for the past
gained for evaluating the effectiveness of the terms. It six months. Belinda immediately telephoned Acme Supa-
must be said that such a question would be more suit- store to say that she was claiming double the difference in
able to a test than to an exam. But the point is this: see price. She also posted a letter claiming this amount. The
letter arrived on Monday 10 December. Acme Supastore
what skills the question requires and make sure that
are refusing to refund any of the purchase price. Advise
you demonstrate those skills.
Belinda as to whether or not any contract has been made.

The final sentence of the question tells you what you


Answering problem questions
are required to do – advise Belinda as to whether or
Almost all law exams have some problem questions, not a contract has been made. If you have read the
such as the end of chapter questions in this book. relevant extracts from Chapters 3 and 4 you will have
These questions require application of the law rather seen that the requirements of a contract are an offer,
than mere reproduction of legal principles. an acceptance, an intention to create legal relations
You should always make a plan before you answer and consideration. So if these are all present a con-
a problem question. Read the question thoroughly a tract will exist. Notice that all the question asks you is
couple of times, perhaps underlining important words whether or not a contract exists. It did not ask what
or phrases. Problem questions can be lengthy, but remedies might be available if such a contract did exist
the examiner will have taken this into account and and was breached. It might have done this, but it did
allowed time for thorough reading of the question. not. So make sure you answer the question asked.
lii  Study skills

The first legal issue is whether the advertisement terms of the offer ruled out acceptance by telephone.
is an offer. So first define an offer as a proposal of The letter would have been within the deadline only if
a set of terms, with the intention that both parties the postal rule applied. The rule should be explained
will be contractually bound if the proposed terms are and analysed, along with the limitations put upon it
accepted. Then you apply your legal knowledge in by Holwell Securities Ltd v Hughes, which is set out at
depth. The advertisement might be an invitation to 3.2.1. An analysis of this case would probably lead you
treat. Partridge v Crittenden (considered at 3.1.2) to conclude that the postal rule would not apply, par-
established that most advertisements are not offers. If ticularly as the advertisement in the question said that
advertisements were classed as offers problems with the acceptance had to be received before the dead-
multiple acceptances and limited stock of goods would line. In Holwell Securities Ltd v Hughes the Court
soon arise. The advertisement here, like the one in of Appeal refused to apply the postal rule because
Partridge v Crittenden, uses the word ‘offer’. But this acceptance had to be made ‘by notice in writing’ and
advertisement can be distinguished from the one in it was held that this meant that it had to be received
Partridge v Crittenden because it shows a much more to be effective.
definite willingness to be bound. Nor would possible Next we would explain that there could have been
multiple acceptances cause a problem here. There consideration from both parties. Acme’s consideration
would be no need for Acme to hold unlimited stock. would have been their promise to give the refund.
If many people accepted, Acme would need only to Belinda’s consideration would have been perform-
make multiple price refunds, which would probably ing the act requested. You might think it a waste of
be small. So the multiple acceptance issue would not time to mention consideration. It would be a waste
indicate a lack of intention to make an offer. of time to consider it at length. But consideration is a
You then compare the advertisement in the ques- requirement of a valid contract and you were asked to
tion to the one in Carlill’s case (see also considered at advise whether or not a contract existed. If you were
3.1.2), noting similarities and differences. (Analysis, absolutely certain that there was no valid acceptance
evaluation and synthesis will be shown in a really good it might be all right to say that there was therefore no
answer.) There is no need to reproduce all the facts of need to consider consideration. But whether or not the
Carlill’s case. You might point out that the advertise- postal rule would apply is not a matter of certainty.
ment in the question said that it was guaranteeing that You might be wrong to say that it would not apply. If
what it said was true, and that this is similar to the this was the case, consideration would be a part of the
Smoke Ball Company’s advertisement, which said that answer. If you reach a conclusion very early on, which
money had been deposited in the bank to show that they makes further investigation of the question unneces-
meant what they said. You would explain that whether sary, you should conduct that further investigation
or not there is an intention to create legal relations is anyway. It is most unlikely that a question has been
an objective test and that in this commercial context it set where the first line gives the answer and the rest
would be presumed that there was an intention unless of the question is irrelevant. For example, you might
there was evidence to suggest otherwise. Again, a com- have decided that Acme’s advertisement was definitely
parison could be made with Carlill’s case where, as in an invitation to treat. If this were true then there could
the question, the advertisement was made in a commer- have been no contract. (Belinda would have made an
cial context. You might explain that, as in Carlill’s case, offer which was not accepted.) So if you did decide
the advertisement set out what action was required to that the advertisement was an invitation to treat, by
accept the offer and that acceptance could be made only all means say so. But then explain that it might pos-
by performing the requested act. In both the question sibly have been an offer and go on to consider the rest
and Carlill’s case a valid acceptance could not be made of the question.
by merely promising to perform the requested act. It is You should reach a conclusion when answering a
a feature of an offer of a unilateral contract that accept- problem question. But your conclusion might be that it
ance can be made only by performing the act requested. is uncertain how the cases would apply and that there-
Acme’s offer, like the one in Carlill’s case, seems to be fore there might or might not be a valid contract. Do
the offer of unilateral contract. not be afraid of such a conclusion. Often it is the only
Next you would consider whether the offer had correct answer. If a definite answer to any legal problem
been accepted within the deadline, noting that the could always be found cases would never go to court.
Study skills  liii

Finally, do not be on Belinda’s side just because you recognised that the case might apply, but you have
have been asked to advise her. Belinda wants an objec- not applied it convincingly. To apply the case well you
tive view of the law. A lawyer who tells his or her client will need to analyse it, and to evaluate arguments
what they want to hear does the client no favours at and ideas. As we have seen, these are the skills which
all. The client may well take the case to court, lose the score the highest marks.
case when the judge gives an impartial decision, and If a question on satisfactory quality within the
then be saddled with huge costs. If the news is bad for Sale of Goods Act 1979 concerned a car sold by a taxi
Belinda, as it probably is, then tell her so. driver, you would want to apply Stevenson v Rogers,
Try to practise past problem questions, but make which is set out in Chapter 8 at 8.2.4. There would be
sure that they are from your exam, and that there is no point in writing out all of the facts. You might say
no indication that future questions will be different. It that Stevenson v Rogers established that whenever
can be very helpful to do this with a friend, or maybe a business sells anything it does so in the course of a
a couple of friends, and to make a bit of a game of it. business for the purposes of s.14(2) SGA. Better still,
Find some old questions and give yourselves about you might say that the taxi driver will have sold the car
ten minutes to make a plan of your answer. Then go in the course of a business for the purposes of s.14(2)
through the questions together, awarding points for SGA, because this is essentially the same as the fisher-
applying relevant cases or for making good points. It man in Stevenson v Rogers selling his boat. In each
is probably best to keep this light-hearted but perhaps case what was sold was not an item the business was
gently criticise each other (and yourself!) if you are in business to sell, but a business asset which allowed
missing things out. the business to be carried on.
Finally, it can be an excellent technique to get to­ As for sections of statutes, there is usually little
gether with a small group of friends who all set a prob- point in reproducing them in full if you can briefly
lem question for each other. First, you have to define state their effect. But they might be worth reproducing
the subject you are considering, perhaps formation of in full if you are going to spend a lot of time analysing
a contract. Then go over all the past questions. Then them. For example, if a large part of a question was
each try and set a similar question, along with a ‘mark- concerned with whether or not a car was of satisfac-
ing plan’ showing how you would allocate a set number tory quality, you might reproduce the statutory defi-
of marks (maybe 20). In the marking plan make sure nition of satisfactory quality in full, or at least fairly
that you list the skills which should be shown, analy- fully. But you would do this only because you would
sis, application etc. This will get you thinking like the then go on to analyse the various phrases in it, perhaps
examiner. It is hoped that it will show you that all of devoting a brief paragraph to each relevant phrase.
the questions have great similarities and that the same Reproducing a statute is particularly likely to be a
things tend to be important in most answers. Lecturers bad idea if you can take a statute book into the exam
who set a lot of exams know that most questions on a with you.
particular topic are looking for the same issues, that the In this study skills section I have concentrated on
same cases tend to be important, and that it is very dif- how to answer legal questions. I hope that this will be
ficult to invent wholly original questions. By the time useful to you. I also hope that you enjoy the subject
you have set each other questions in this way the real and enjoy reading this book. Above all, I hope that you
exam questions should look a lot easier. appreciate that the study of law is not a dry matter of
learning facts and reproducing them. Some learning is
Using cases and statutes necessary, but the true fascination of the subject lies in
Whenever you can, you should use cases and legis­ the endlessly different ways in which legal principles
lation as authority for statements of law. In the sec- might apply to any given situation.
tion above, on answering problem questions, we saw Lastly, I wish you good luck with your assessments.
how Carlill’s case might be used. Notice how different But in doing so I remind you of the famous reply of
that use was from writing Carlill’s case out at great Gary Player, the champion golfer, when he was accused
length and then saying that the advertisement in the of winning tournaments because he was lucky. He
question is just the same and so Carlill’s case will be admitted that he was lucky, but said that the more he
applied. To do that not only wastes a lot of words but, practised the luckier he seemed to get. So practise your
worse, it shows little application of the law. You have study skills, put in the work and make yourself lucky!
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1
The legal system

Introduction
This chapter considers the following matters: 1.3 Sources of English law
1.3.1 Statutes
1.1 Features of the English legal system 1.3.2 Judicial precedent
1.1.1 Antiquity and continuity 1.4 European Union law
1.1.2 Absence of a legal code 1.4.1 The institutions of the European Union
1.1.3 The law-making role of the judges 1.4.2 Sources of Community law
1.1.4 Importance of procedure 1.4.3 The European Court of Justice
1.1.5 Absence of Roman law 1.4.4 Supremacy of EU law
1.1.6 The adversarial system of trial 1.5 The European Convention on Human Rights
1.2 Classification of English law 1.5.1 The Human Rights Act 1998
1.2.1 Public law and private law 1.5.2 The European Convention on Human Rights
1.2.2 Common law and equity 1.5.3 The European Court of Human Rights
1.2.3 Civil law and criminal law 1.5.4 The impact of the Human Rights Act
1.2.4 The distinction between law and fact

1.1 FEATURES OF THE ENGLISH In the second half of the twelfth century, King
LEGAL SYSTEM Henry II introduced a central administration for the
law and began the process of applying one set of legal
The English legal system is unlike that of any other rules, ‘the common law’, throughout England. Since
European country. An outline knowledge of the fea- that time, English law has evolved piecemeal. For this
tures which make the English system so distinct is reason the English legal system retains a number of
essential to an understanding of English law and the peculiarities and anomalies which find their origins in
English legal process. mediaeval England.
For the past few hundred years, world history has
been a litany of revolution and conquest. The new rulers
1.1.1 Antiquity and continuity
of a country tended to start afresh with the law. In the
English law has evolved, without any major upheaval or Soviet Union the communists introduced Soviet law, in
interruption, over many hundreds of years. The last suc- France Napoleon introduced the Napoleonic code, in the
cessful invasion of England occurred in 1066, when King United States the founding fathers wrote the American
William and his Normans conquered the country. King Constitution. But England is one of the very few countries
William did not impose Norman law on the conquered to have survived the last nine hundred years with no
Anglo-Saxons, but allowed them to keep their own laws. lasting revolution from within or foreign conquest from
These laws were not uniform throughout the kingdom. abroad. Some English laws and legal practices have
Anglo-Saxon law was based on custom and in different evolved continuously since the time of King Ethelbert,
parts of the country different customs prevailed. who became King of Kent in the year 580. The Norman
2  Chapter 1  The legal system

Conquest was a major upheaval, but even that was not a case, the court is likely to be guided as to the meaning
fresh beginning for the law. of the statute by earlier cases which have considered
English law does not become inoperative merely its meaning.
because of the passage of time. When we study the In general, the important cases on a particular area
law of contract we shall see that two ancient cases, of law are not reported in one special volume of law
Pinnel’s Case (1602) 5 Co Rep 117a and Lampleigh v reports devoted to a particular area of law, such as
Brathwaite (1615) Hob 105, are still important prec- the law of contract. (There are exceptions, specialist
edents. Although these cases have been refined and law reports can be found on some areas of law, such
developed by subsequent cases, there would be no as employment law or road traffic law. The system of
reason why a modern lawyer should not cite them in law reporting is examined in the following chapter at
court. In the same way, statutes remain in force indefi- 2.9.) Generally, cases are reported as they are decided
nitely or until they are repealed. A statute loses none and are therefore to be found in the law report volume
of its authority merely because it has lain dormant devoted to the year in which the case was decided. As
for many years. In R v Duncan [1944] KB 713, for lawyers and students are only too well aware, it can be
example, a defendant was convicted of fortune-telling very difficult to find all the cases relevant to a particu-
under the Witchcraft Act 1735, even though the stat- lar legal issue.
ute had long since fallen into disuse. Occasionally, Parliament codifies an area of law
Occasionally a litigant springs a major surprise with a statute such as the Partnership Act 1890. Such
by invoking an ancient law. In 1818 the defendant an Act aims to take all the relevant case law on a
in Ashford v Thornton (1818) 1 B & A 405, claimed ­particular subject and to codify it into one compre-
the right to have an appeal against his conviction for hensible statute. The Law Commission, an impor-
murder settled by battle. Trial by battle had been a tant law reform institution set up in 1965, has the
method of resolving disputes shortly after the Norman codification of appropriate areas of law as one of
Conquest but had fallen into disuse before the end of its objects. But as we shall see, the vast majority of
the thirteenth century. In Ashford v Thornton, the English law remains uncodified. Nor does Britain
offer of trial by battle was declined and so the defend- have a written constitution, as most other demo-
ant was discharged. The Appeals of Murder Act 1819 cratic countries have.
was hurriedly passed; but until Parliament passed this
Act, trial by battle still existed as a possible means of
1.1.3 The law-making role of the judges
settling some types of legal disputes.
In most European countries the judges interpret the
legal code. In doing this they do not themselves delib-
1.1.2 Absence of a legal code
erately set out to create law. Later in this chapter,
In most European countries the law has been codified. when we study the doctrine of judicial precedent, we
This means that the whole of the law on a particular shall see that the English courts are arranged in an
subject, for example the law of property, can be found hierarchical structure and that courts lower down the
in one document or code. Some such codes merely hierarchy must follow the previous decisions of courts
provide a framework for the law, others attempt to higher up. Senior English judges therefore have a
provide a complete statement of the law. As we shall dual role. First, they interpret the existing law, which
see, the bulk of English law has been made by judges is to be found in legislation and previous decisions of
in individual cases. Rules of law made by senior judges higher-ranking courts. Second, they create the law by
must be followed in later cases. In the majority of cases making legal principles which courts lower down the
brought before an English court, a lawyer who is try- hierarchy are bound to follow.
ing to establish a legal principle will cite earlier cases
to prove that the principle exists and that it should be
1.1.4 Importance of procedure
applied in the current case. Often a statute, an Act of
Parliament, will provide the main legal rules appli- In the Middle Ages a legal right could only be enforced
cable to a particular case. A statute ranks higher as a by means of a writ (an order signed by the King,
source of law than the previous decision of any court. requiring a defendant to appear in court to answer the
But even where a statute does apply to a particular claim being made). There were few types of writ, and
1.1 Features of the English legal system  3

if a claim could not be brought within the confines the parties would fight each other, both armed with a
of one of the writs then no remedy was available. To leather shield and a staff and it was thought that God
some extent, lawyers were people who knew the pro- would grant victory to the righteous litigant. If either
cedure of obtaining a remedy, rather than people who of the parties was disabled, too young or too old, he
knew the substantive principles of the law. A person could hire a champion to fight for him. This was no
with a perfectly just claim would need a lawyer to fit doubt considerably more entertaining than a modern
the claim within the procedures of one of the writs. trial, but eventually it came to be realised that it was
If  the  correct procedure was not rigidly adhered to, not the best way to achieve justice. Lawyers therefore
then the claim would fail, even if the substance of replaced the champions. But the idea of a battle sur-
the claim was perfectly valid. To some extent this is vived and a trial is still a battle between the lawyers,
still true today. If a litigant fails to follow the correct even if the shields and staffs have given way to wit-
procedure it is possible that his claim will be struck nesses and precedents.
out. Recent reforms of the judicial process, which we Most other countries have an inquisitorial system
consider in Chapter 2, have attempted to reduce the of criminal procedure where the judge is the inquisi-
importance of procedure. However, in cases which tor, determined to discover the truth. A French inves-
involve a substantial claim there is no doubt that pro- tigating judge (juge d’instruction), for example, has
cedure remains very important. enormous powers. He takes over the investigation of
a criminal case from the police. He can interrogate
whoever he wishes. He can compel witnesses to give
1.1.5 Absence of Roman law
evidence and can surprise witnesses with other wit-
The Romans occupied England from 55 BC to AD 430. nesses, hoping that the confrontation will point the
Roman law was extremely sophisticated by the stand- finger of guilt. In a civil case, too, a French judge will
ards of its day. The other European countries which take a much more interventionist approach than an
were part of the Roman Empire have retained ele- English judge and it is the judge, rather than the law-
ments of Roman law. But English law has almost no yers, who manages, the case.
direct Roman law influence, although Roman law is When a French case reaches court it is often all but
still taught as an academic subject at some English decided. By contrast, no one can ever be certain of the
universities and some areas of law have been indi- outcome of an English trial. The lawyers will fight for
rectly based on Roman law concepts. Scotland was their clients on the day and either side might win. The
not conquered by the Romans, but Scots law has more judge should be disinterested in the outcome, merely
of a Roman law influence than English law. This influ- ensuring that the lawyers fight by the rules. However,
ence has been brought about by the traditional alli- since the introduction of the Civil Procedure Rules in
ance of France and Scotland. During the Renaissance, 1999 civil trials have become less adversarial and the
when the modern European world began to develop, judge manages the case to some extent.
Scotland and Continental Europe saw a revival of An important aspect of the adversarial system of
interest in Roman law. This interest was largely absent trial is that it is the task of the lawyers to bring the
in England. relevant legal rules to the attention of the court. If
a lawyer in court makes a perfectly true statement
of law, such as the statement that all goods sold in
1.1.6 The adversarial system of trial
the course of business must be of satisfactory qual-
The English system of trial is adversarial. This means ity, he must provide authority for this statement. This
that the lawyers on either side are adversaries, who means that the lawyer must quote the case, or in this
‘fight’ each other in trying to win judgment for their instance the statute, which made the law. Similarly,
client. The judge supervises the battle between the students must cite authorities. At all levels of study, a
lawyers, but does not take part. Today the battle is statement of law with no authority to back it up is not
metaphoric, one party’s lawyers try to establish that regarded highly.
there is a case, the other party’s lawyers deny this by Two other features of the English legal system, both
whatever means permissible. In the early Middle Ages of which are examined in Chapter 2, are worth men-
the battle could be real enough, as certain types of dis- tioning here. First, the legal profession is divided, law-
pute were resolved with a Trial by Battle. In such a trial yers being either barristers or solicitors. Second, in
4  Chapter 1  The legal system

almost all criminal trials the innocence or guilt of the Private law is also called civil law and can be
accused is decided by laymen, rather than by lawyers or broadly broken down into five main areas: contract,
judges. If the accused is tried in the Crown Court it will tort, property, trusts and family law.
be a jury who decides whether the accused is guilty. If
the crime is tried in the magistrates’ court it is generally
1.2.2 Common law and equity
a bench of lay magistrates who make this decision.
Commonwealth and former Commonwealth The term common law is used in three distinct senses.
­countries, such as Australia, Canada and New Zealand, First, it is used to distinguish countries which have
have retained the adversarial system of trial and most adopted the features of the English legal system from
other features of the English legal system. In the United those countries which have not. The features of the
States of America trials are adversarial and some fea- English legal system were explained at the beginning
tures of the English legal system have been retained. of this chapter. Countries which adopt these features
As we shall see both in this chapter and in Chapter 2, are said to have a common law system. Countries
there is now considerable pressure to change many of which adopt the central European system are said to
the traditional features of the English legal system, have a civil law system. Second, the term common
which are increasingly perceived to be ill-suited to the law denotes that body of law made by the judges in
needs of the twenty-first century. the King’s (or Queen’s) courts, rather than the body of
law made by the judges in the courts of equity. Third,
common law means judge-made law as distinct from
1.2 Classification of statute law.
English law It is, perhaps, unfortunate that the term common
law is used in three different ways. However, the con-
English law can be classified in three main ways: as text in which the term is used will generally make
public law or private law; as common law or equity; or apparent the sense in which the term is used. Here we
as civil law or criminal law. Each of these classifications are considering the difference between the law made
is worth considering in some detail. It is also worth by the judges in the King’s courts and the law made by
considering the distinction between law and fact. the judges in the courts of equity. To understand this
distinction and to understand the meaning of equity,
we must know something of the historical develop-
1.2.1 Public law and private law
ment of the law.
Public law is concerned with decisions made by bodies A hundred years after the Norman Conquest,
which are governmental in nature. Private law is con- Henry II began the process of applying one set of
cerned with the legal relationships of individual citi- legal rules, the common law, throughout the coun-
zens. Criminal law, for example, is regarded as public try. The King’s representatives travelled from London
law. Citizens are prosecuted by the State. The law of to the provinces, checking on the procedures in the
contract, on the other hand, is private law. A person local courts. Gradually these representatives became
who sues for breach of contract acts as one individual judges rather than administrators. When they arrived
suing another individual. The State provides a frame- they would try the cases waiting for them (a system
work for such a dispute to be resolved. That is to say, it which survived into the 1970s). The decisions of
provides the courts and the judges, but it plays no part these first travelling judges began to be recorded.
in bringing or defending the action. Subsequent judges followed the earlier decisions, in
There are three main areas of public law. order to provide a uniform system of law. Gradually
Constitutional law is concerned with the workings of one set of legal rules became common to the whole
the British Constitution, deciding such matters as the country and it therefore became known as the com-
powers of Government Ministers. Criminal law makes mon law.
certain types of behaviour criminal offences, giving The common law grew to have several defects.
the State the power to prosecute and punish those who First, legal actions could only be commenced through
commit such offences. Administrative law deals with the issuing of a writ. By the middle of the thirteenth
disputes between citizens and Government agencies, century there were around 50 writs, to cover different
such as the Department for Work and Pensions. types of cases. In the reign of Henry III, after political
1.2 Classification of English law  5

pressure from the barons, the Provisions of Oxford in structure, designed to apply both common law and
1258 ruled that new types of writs should not be cre- equity side by side in the same courts. This has not
ated. The development of the common law was very meant that equity has ceased to exist. Equity still plays
much hindered by this. Sometimes existing writs could an important part in English law. The administration
be stretched to cover new situations, but more often of common law and equity may have been fused, but
they could not. the separate rules of each branch of the law have lived
A second defect of the common law was that pro- on. Equitable remedies remain discretionary and can
cedure was extremely hidebound. If a writ contained be withheld from those who have behaved inequit­
the slightest defect in its wording it was rendered use- ably (unfairly). This was reflected in the maxim, ‘He
less. There were also problems with fictitious defences. who comes to Equity must come with clean hands’.
Originally the truth of these defences had been checked An example can be seen in Falcke v Gray (1859) ER 4
by the King’s knights, but later the defences became Drew 651 in Chapter 7 at 7.2.4.
very effective delaying tactics. A third major defect of Any court can now apply both legal and equitable
the common law was that it had only one civil remedy rules. However, barristers still tend to regard them-
at its disposal, the payment of damages. In some cases, selves as either common law barristers, dealing with
such as those where a nuisance was being continually contract, tort or crime, or Chancery barristers, dealing
committed, the payment of damages was not much of with trusts and property.
a remedy. What the litigant really wanted was that the
defendant be ordered to stop committing the nuisance.
1.2.3 Civil law and criminal law
In the Middle Ages people who could not gain a
remedy under the rigid rules of the common law could The distinction between civil and criminal liability is
petition the Chancellor, the highest ranking clergy- fundamental to English law. The courts themselves are
man, to ask him to intercede. divided into civil courts and criminal courts and the
The Church was the one mediaeval institu- two sets of courts have quite different purposes. The
tion where men of ability could better themselves. civil courts are designed to compensate people who
Generally speaking, only clergymen could read and have been caused loss or injury by the wrongful acts of
write. Clergymen were trained in Canon Law. This was other people. The criminal courts are designed to pun-
based on God’s law, and on the laws of conscience, and ish people who have committed a criminal offence.
therefore contained an element of natural justice. The Table 1.1 shows the essential differences between
Chancellor could order litigants to appear before him, civil and criminal law.
without the use of writs. There were no complex rules Despite the differences shown in Table  1.1, it is
of evidence or procedure and the Chancellor could quite possible that the same wrongful act will give
order justice to be done in various ways. In particular, rise to both civil and criminal liability. For example, if
he could issue injunctions which ordered a person to a motorist injures a pedestrian by dangerous driving
behave in a certain way. This justice dispensed by the then both a crime and a tort (a civil wrong) will have
Chancellor became known as equity. been committed.
Equity was not designed to be a rival system to the The State might prosecute the driver for the crime
common law system. Originally it was intended to sup- of dangerous driving and if found guilty the driver will
plement the common law, to fill in the gaps. But gradu- be punished. (Probably by a driving ban and possibly
ally equity developed into a rival system, and gradually by a fine or imprisonment.) The injured pedestrian
it became just as hidebound as the common law. might sue the driver in the civil courts for the tort of
For several hundred years, until the Judicature Act negligence. If the driver is found to have committed
1873 which came into effect in 1875, England had two this tort then damages will be sought to compensate
separate systems of courts and laws. The systems did for the pedestrian’s injuries.
not always deal with separate matters. In the Earl of The different functions of the civil and criminal
Oxford’s Case (1615) 1 Rep Ch 1, it was decided that courts can be further demonstrated if we consider
if common law and equity conflicted then equity had what would have happened if the driver’s behaviour
to prevail. had been much worse.
The Judicature Acts 1873–1875 merged the two Let us now assume that the driver was very drunk,
systems of law. These Acts created the modern court driving very badly and had killed the pedestrian.
6  Chapter 1  The legal system

Table 1.1  Essential differences between civil and criminal law


Criminal Civil
Purpose of the case To punish a wrongdoer. To compensate a person who has suffered
loss or injury or to prevent unlawful acts.
The parties The State prosecutes a person (the An individual (the claimant) sues an individual
defendant), e.g. Regina (Queen) v Smith. (the defendant), e.g. Smith v Jones.
The outcome The defendant is either acquitted or The claimant either wins the case or does
convicted. not.
The consequences If convicted, the defendant will be If the claimant wins he will be awarded a
sentenced. remedy.
The courts The case is first heard in either the The case is first heard in either the county
magistrates’ court or the Crown Court. court or the High Court.
The costs Legal aid is often available to the defendant. Generally, the loser pays both sides’ costs.
If convicted, he must pay towards the Insurance against losing is encouraged.
costs. Legal aid may be available to the very needy.
The facts Decided by bench of magistrates (occasion­ Decided by the judge.
ally by a district judge) or by the jury.
The law Decided and applied by the judge or by the Decided and applied by the judge.
magistrates on the advice of the legally
qualified clerk.
Burden and standard The prosecution must prove the defendant’s The claimant must prove his case on a
of proof guilt beyond reasonable doubt. balance of probabilities.
Examples Murder, theft, committing unfair trade Negligence, trespass, breach of contract,
practices, failure to observe health and safety disputes as to ownership of property.
provisions.

Under the criminal law the driver would be charged criminal courts are designed to punish bad behav-
with the more serious offences of causing death by iour. The worse the behaviour, the more severe the
dangerous driving and of driving with excess alcohol. punishment. The civil courts are not concerned with
The purpose of charging the driver with these more the heinousness of the defendant’s behaviour, they
serious offences would be to impose a more serious are concerned with compensating a person for injur­
punishment. If convicted the defendant would almost ies suffered as a consequence of the defendant’s
certainly be imprisoned. wrongdoing. The more severe the injuries, the higher
However, the civil courts would not order the the compensation. Almost all businesses will insure
defendant to pay more damages merely on account themselves against incurring civil liability. However,
of worse behaviour. In fact, if the pedestrian was this will not make them indifferent to incurring such
killed the damages might well be less than for a bad liability. Once a claim on an insurance policy has been
injury. If the pedestrian was injured in such a way made, insurance will be more expensive the following
that nursing care would be required for life, damages year.
might well exceed a million pounds, as they would As we have seen, crimes which cause injury to a
take account of the cost of the nursing care, pain victim will also give rise to a civil action. But ‘victim-
and suffering and loss of earnings, if appropriate. If less’ crimes will not. Possessing a dangerous drug,
the driver was killed instantly no damages would be for example, is a crime and the possessor of the drug
paid in respect of nursing care or pain and suffering. might be prosecuted by the State. But the fact that a
A pedestrian who was not injured at all could bring person possesses the drug does not directly injure
no claim for damages. anyone else, and so no one will have any right to sue
This example demonstrates the different pur- him. Although the criminal courts have as their pur-
poses the two sets of courts are trying to achieve. The pose the punishment of offenders, rather than the
1.2 Classification of English law  7

compensation of the injured, they do have the power to Generally, the criminal law also requires the prosecu-
make compensation orders. Section 35 of the Powers tion to prove both fact and law. The prosecution must
of Criminal Courts (Sentencing) Act 2000 gives mag- prove beyond a reasonable doubt that the defend-
istrates the power to make compensation orders of up ant did the act for which he is being prosecuted and
to £5 000 per offence. The compensation is paid by the must also prove that such an act amounts to a criminal
perpetrator of the crime. The Crown Court is given the offence.
power to make a compensation order of any amount, It can be important to distinguish law and fact for
although it is required to have regard to the defend- three main reasons. First, only statements of law can
ant’s means. If a court does not make a compensation become precedents. (Judicial precedent is examined
order in a case in which it is empowered to do so, it below at 1.3.2.) Second, in many cases an appeal may
must give reasons for not making the order when pass- only be possible on a point of law. In other cases an
ing sentence. An award made in the magistrates’ court appeal on the law would go to one court, whereas
does not preclude a later civil claim by the victim of an appeal against a finding of fact would go to a dif-
the crime. Compensation orders can generally not be ferent court. Third, in a criminal trial conducted in
ordered when the offence is a motoring offence. the Crown Court the jury’s function is to determine the
The Criminal Injuries Compensation Authority can facts, whereas the correct application of the law is the
also award compensation to victims of violent crime, function of the judge.
but any award is reduced by the amount of any com- Often it is obvious enough whether or not a ques-
pensation ordered by a criminal court. The Authority tion is one of law or fact. The well-known case Carlill v
has tariffs for several types of injury, the amount The Carbolic Smoke Ball Company [1893] 1 QB 256,
awarded depending upon the severity of the injury which is set out in Chapter 3 at 3.1.2, can be used as
and all of the circumstances. For example, the tariff for an example. Whether or not Mrs Carlill really did use
loss of four or more front teeth is £5,500, and for loss a smoke ball and whether she really did catch flu were
of sight in one eye is £22,000. For paralysis of all four questions of fact. Whether or not the advertisement
limbs the tariff is £250,000. was an offer or an invitation to treat was a question
Most civil wrongs are not crimes. If a person breaks of law.
a contract or trespasses on another’s property that per- Sometimes it must be decided whether certain
son might well be sued, but in general will have com- facts fit within a definition made by a statute, or fit
mitted no crime. within a rule made by the common law. These ques-
The burden of proof is placed upon the party who tions can be regarded as a question of mixed law and
must prove the case. In criminal cases the burden is fact, or law and degree as they are sometimes known.
placed upon the prosecution. In civil cases the bur- For example, in Cozens v Brutus [1975] AC 854 the
den is placed on the claimant. The standard of proof defendant was charged with using insulting behav-
is concerned with the extent to which the case must be iour whereby a breach of the peace was likely to be
proved. In criminal cases the prosecution must prove oc­casioned, contrary to s.5 of the Public Order Act 1936.
the guilt of the accused beyond reasonable doubt. In The defendant had interrupted the Wimbledon tennis
a civil case the claimant must prove the case on a bal- tournament by blowing a whistle, sitting down on the
ance of probabilities. court and attempting to hand a leaflet to the players.
The magistrates held that the defendant’s behaviour
had not been insulting. The Court of Appeal consid-
1.2.4 The distinction between law
ered that whether or not the defendant’s behaviour
and fact
was insulting was a question of law and went on to
In general, civil cases require the claimant to prove not define the meaning of insulting in this context. As they
only the facts which give rise to the claim, but also the regarded the magistrates’ finding as provisional, they
principles of law which provide a remedy in respect sent the case back to the magistrates to continue the
of the facts proved. So a pedestrian run over by a car hearing. The House of Lords reversed the decision of
will first need to prove that the defendant did run him the Court of Appeal and held that whether or not the
over and will also have to prove that the law of negli- defendant’s behaviour had been insulting was a ques-
gence provides him with a remedy in respect of this. tion of fact. It had therefore been properly decided by
8  Chapter 1  The legal system

the magistrates and so no appeal against their finding for example, s.3 of the Compensation Act 2006, which
could be made. is considered in Chapter 12 at 12.2.4.3.)
The conflicting decisions of the Court of Appeal The United Kingdom joined the European Economic
and the House of Lords demonstrate the difficulty of Community, now called the European Union, in 1973.
classifying some questions as either questions of law or It is arguable that membership of the European
questions of fact. In deciding such matters the courts Union means that the United Kingdom Parliament is
will, of course, try to reach the correct conclusion. no longer truly sovereign. This matter is considered
However, there is perhaps a tendency to classify such below at 1.4.4.
questions as matters of fact to reduce the number of
precedents being made and to reduce the number of 1.3.1.1 How is a statute passed?
appeals which will be allowed. The government of the day is formed by the political
party which wins a majority of the seats in the House of
Commons. The government takes the political decisions
Test your understanding 1.1 as to what legislation should be enacted in each sitting
1 What is meant by the adversarial system of trial? of Parliament. Then government departments, such as
the Department for Business, Innovation and Skills,
2 What is meant by the distinction between
common law and equity? Does the distinction propose legislation for approval. Parliamentary drafts-
still exist? men (lawyers who specialise in drafting legis­lation)
then draw a Bill up and the Bill starts its parliamentary
3 What are the different purposes of a civil and a
criminal case? journey.
To become a statute the Bill must pass through
4 Upon whom is the burden of proof placed in
civil and criminal cases? What standard of proof
both Houses of Parliament, that is to say the House of
is required? Commons and the House of Lords, and then gain the
Royal Assent. Many Bills achieve this without signifi-
5 For what three reasons might it become
important to distinguish law and fact?
cant alterations. Others have to be amended to gain
parliamentary approval and some Bills fail to become
statutes at all.
Bills usually start in the House of Commons. The
initial stage is the First Reading. This merely gives the
1.3 Sources of English law title of the Bill and announces the date of the Second
Reading. At the Second Reading the prin­ciples of the
1.3.1 Statutes
Bill are debated. If the Bill passes this stage, on account
Acts of Parliament are called statutes. The theory of of more MPs having voted in favour of it than against it,
Parliamentary sovereignty holds that Parliament has it is referred to a standing committee which considers
the power to enact, or revoke, any new law it pleases the details of the Bill and recommends amendments.
and that the courts cannot question the validity of this Any such amendments are considered by the House of
law. Even Parliament itself cannot limit the power of Commons at the report stage, after which the Bill then
a successive Parliament. In British Railways Board proceeds to the Third Reading. Like the First Reading,
v Pickin [1974] AC 765, for example, a claimant this is a short stage where only minor amendments to
whose land had been compulsorily purchased under the content of the Bill, rather than amendments to the
the British Railways Act 1968 tried to argue that the general principle of the Bill, can be made.
statute was invalid. The 1968 Act was a private Act The Bill is then sent to the House of Lords, where
that had been passed unopposed and the claimant the whole process is repeated. The wording of the
argued that Parliament had been fraudulently misled Bill must be the same for both Houses of Parliament.
into passing it. The House of Lords, then the highest If the House of Lords disagrees with the wording or
court in the land, ruled that such an argument could refuses to pass the Bill, the Parliament Acts 1911 and
not be raised in any court. Several times in recent years 1949 can be invoked. The effect of these Acts will be
Parliament has used a statute to specifically overrule a that the Bill can go ahead without House of Lords
decision of the House of Lords, thereby demonstrating approval, after a delay of one year. (This happens
the supremacy of legislation as a source of law. (See, very rarely.) A money Bill, which would contain only
1.3 Sources of English law  9

financial provisions, can become a statute without consolidated existing legislation relating to collective
being passed by the House of Lords after a delay of labour relations. An amending Act changes one or
only one month. more sections of an existing Act.
After passing through both Houses of Parliament,
the Bill will then receive the Royal Assent. It is a con- Example
vention that the Queen does not withhold consent
The effects of the three types of Act can be considered
and no monarch has done so since 1707. (The Queen
by looking at the history of sale of goods law. Prior to
does not give assent personally but through the Lord 1893 sale of goods law was almost entirely common law,
Commissioners or by notification to both Houses of that is to say it was made by the courts in innumerable
Parliament.) cases. In 1893 the Sale of Goods Act, a codifying Act,
Once the Bill has received the Royal Assent it codified the common law.
becomes a statute (an Act of Parliament) which the No real changes were made until 1973, when the
courts must enforce, either from a date agreed by 1893 Act was amended very slightly to make it more
Parliament or when an order is passed by the relevant appropriate to the needs of consumers. These minor
Secretary of State. changes were made by an amending Act, the Supply
of Goods (Implied Terms) Act 1973. In 1977 the Unfair
Almost all Bills are introduced into Parliament by
Contract Terms Act made more amendments. In 1979
the Government of the day. A Government with a large
the Sale of Goods Act 1979, a consolidating Act, was
majority has enormous power to ensure that Bills it
passed. This Act, which is the Act currently in force,
proposes become enacted. The system is subject to the consolidated the 1893 Act and the amendments which
criticism that the Government can ignore not only the had been made to it. Four amending Acts have been
wishes of opposition MPs but, if its majority is large passed since 1979: the Sale of Goods (Amendment)
enough, can also ignore the wishes of many of its Act 1994; the Sale and Supply of Goods Act 1994;
own MPs. However, not all Bills are introduced by the the Sale of Goods (Amendment) Act 1995 and the
Government. Every year a ballot is held to identify 20 Consumer Rights Act 2015. The first three of these
MPs who may attempt to introduce Private Member’s amending acts have been incorporated into the SGA
Bills. In fact, only an MP who was close to winning 1979. The CRA 2015 has replaced various provisions
of the SGA 1979, in so far as they relate to consumers.
the ballot will have a reasonable chance of seeing his
The amendments achieved by these Acts are incorpo­
Private Member’s Bill become the law. The Abortion Act
rated into the Sale of Goods Act 1979.
1967, which liberalised the law on abortion, was intro-
duced as a Private Member’s Bill by David Steel MP.
Parliament has the power to repeal any statute. As
1.3.1.2 Codifying, consolidating and amending we saw earlier, a statute remains in force until it is
Acts repealed even if it has become obsolete.
We have seen that, in general, English law is not codified.
However, certain areas of law have been the subject of a 1.3.1.3 Delegated legislation
codifying Act. Such an Act attempts to put all the exist- Delegated legislation is the name given to legislation
ing law on a particular subject, whether common law passed otherwise than as a statute. Most delegated leg-
or statutory, into one comprehensive statute. In doing islation is concerned with relatively narrow, technical
this the law may be changed and if the Act is inconsist- matters. However, it is arguable that delegated legis­
ent with the law which it codified, the Act prevails. The lation is a more important source of law than statute.
major codifications in English law have been the Bills of This argument is based on the fact that nowadays there
Exchange Act 1882, the Partnership Act 1890, the Sale is far more delegated legislation than statute law. Once
of Goods Act 1893, and the Theft Act 1968. delegated legislation is enacted, it generally has the
A consolidating Act re-enacts all the law on a same force as the statute which enabled it to be enacted.
given area, so that the law contained in several exist- Delegated legislation can take several forms. The
ing statutes is re-enacted as one new statute. Minor most important form is a statutory instrument. This
changes to the law may be made, but the purpose of a legislation is not passed as a statute. Instead, a statute
consolidating Act is not to change the law, but to make called an enabling Act is passed and this enabling Act
it more easily accessible. The Trade Union and Labour gives a Government Minister the power to introduce
Relations (Consolidation) Act 1992, for example, the legislation. The statutory instrument will contain a
10  Chapter 1  The legal system

preamble which sets out the authority under which it 2014 over three thousand statutory instruments were
was passed. It will also contain a statutory note which passed, but only 30 Public Acts. It is also true that MPs
sets out its purpose and its scope. Statutory instru- are not particularly knowledgeable about the details
ments are made in the name of a Minister but are of the types of matters which are enacted by statutory
drawn up by the legal department of the relevant min- instrument. These matters are often extremely techni-
istry. The Deregulation and Contracting Out Act 1994 cal, dealing with a huge variety of matters, such as the
allows Ministers to change certain Acts of Parliament, safe storage of hazardous materials, or the intricacies
by way of statutory instrument, without going through of housing benefit. A separate justification is that if
the normal parliamentary procedure. The 1994 Act is there were to be a true emergency, such as a major leak
used to repeal or amend provisions in primary legis- of radiation, legislation might be needed quickly and
lation which impose a burden on business or others. there would not be the time to pass a statute and have
In later chapters we shall see that legislation of con- debates in the Houses of Parliament. Also, the type of
siderable importance, such as the Commercial Agents matter which arises from time to time, such as finan-
(Council Directive) Regulations 1993, takes the form cial eligibility for housing benefit, are obviously better
of statutory instrument rather than the form of a stat- dealt with by delegated legislation than by statute. The
ute. Many statutory instruments, such as the 1993 same is obviously true of local bye-laws. MPs have no
Regulations, are used to implement EU Directives. real interest in areas other than the areas which they
(Directives are examined later in this chapter at represent, or in which they live, and could not there-
1.4.2.4.) fore determine whether or not a bye-law was needed.
Orders in Council are made by the Privy Council. Delegated legislation is also criticised on several
When making such orders the Privy Council is gener- grounds. First, there is the danger that the Government
ally made up of four Ministers in the presence of the can pass legislation setting out new principles by
Queen. The government of the day can use orders in abusing the process of delegated legislation. Second,
council to introduce legislation without going through some delegated legislation gives Ministers the power
the process of enacting a statute. Orders in Council can to alter statutes, possibly including the very enabling
be used to implement emergency legislation, where Act which conferred the power to make the delegated
there would not be time to have formal debates in legislation in question. In Hyde Park Residence Ltd v
the Houses of Parliament. Orders in Council are also Secretary of State for the Environment, Transport
used to give effect to provisions of the European Union and the Regions [2000] 1 PLR 85 the Court of Appeal
which do not have direct effect, to shift responsibil­ held that although it was possible for one statute to
ities between Government departments or in relation confer a power to amend another statute by delegated
to matters which affect the constitution. Many stat- legislation, this power should be construed narrowly
utes only become operative when an Order in Council and strictly. Third, it is possible that the enabling Act
provides that they should, the power exercised by the states that the delegated legislation should not be sub-
Order in Council being contained in the statute itself. ject to judicial review by the courts, or that it is worded
Bye-laws made by local authorities and other public so widely that the courts would not be able to say that
bodies are another type of delegated legislation. These its powers had been exceeded. (Judicial review is con-
are used to introduce local rules of minor importance. sidered in Chapter 2 at 2.6.1.)
The power to enact bye-laws is given by an en­abling Certain controls over delegated legislation do
Act, such as the Local Government Act 1972. exist. Ministers are often required by the enabling
Delegated legislation has certain advantages and Act to consult various bodies before enacting del-
disadvantages. The advantages usually claimed are egated legislation. Statutory instruments must be
that it can be enacted without using up parliamentary published and made available for sale to the public.
time, that it makes use of particular expertise held In addition to these controls, delegated legislation
by those who enact it, and that it is flexible enough is controlled both by Parliament and by the courts.
to deal speedily with changing circumstances and Although some non-contentious statutory instruments
emergencies. These claims in general seem to be true. just become law on the date stated in them, most are
Parliament often does not have time to pass all of its required by their enabling Acts to be laid before both
legislative programme, even though the vast majority Houses of Parliament. If this process is subject to the
of this is already contained in statutory instruments. In ­negative resolution procedure the legislation must
1.3 Sources of English law  11

be laid before both Houses for 40 days, during which suited to achieving justice in the case it is hearing.
time either House can pass an annulment or negative However, the literal approach is generally used when
resolution, which will cause the statutory instrument interpreting criminal or tax legislation, and the pur-
to be rendered ineffective. Any MP can put forward a posive approach is preferred when interpreting legis­
motion for annulment. The affirmative resolution pro- lation emanating from the EU.
cedure requires the instrument to be laid before one or When the literal rule is applied words in a statute
both Houses for a specified time, usually 40 days, after which are not ambiguous are given their ordinary, lit-
which time an affirmative resolution agreeing to the eral meaning, even if this leads to a decision which is
instrument must be passed or the instrument will have unjust or undesirable. An example of this approach
no effect. Delegated legislation to deal with politically can be seen in Inland Revenue Commissioners v
contentious or emergency matters generally requires Hinchy [1960] AC 748, in which the House of Lords
this procedure. However, the majority of delegated was considering the effect of the Income Tax Act 1952.
legislation is subject only to the negative control. It is Section  25(3) of the Act stated that a person found
most unusual for either House of Parliament to have guilty of tax avoidance should ‘forfeit the sum of £20
the power to amend a statutory instrument. They and treble the tax which he ought to be charged under
either allow it to be passed or annul it. this Act’. Hinchy’s lawyers argued that this meant a
The courts have the power, through the process £20 fine and treble the amount of tax which had been
of judicial review, to declare a statutory instrument avoided. Unfortunately for Hinchy, the House of Lords
ultra vires on the grounds that it tries to exercise a decided that the literal meaning of s.25(3) was that a
power greater than that conferred by the enabling tax avoider should pay a £20 fine and treble his whole
Act. It is presumed that an enabling Act does not con- tax bill for the year.
fer the power to raise tax; or to retrospectively alter The outcome of the case was that Hinchy had to pay
the law; or to prevent a person from having access to slightly over £438, even though the amount he had
the courts; or to take away civil liberties. However, avoided was only £14.25. This was obviously a severe
if the enabling Act was sufficiently clear it could blow for Hinchy. (In 1960, £438 could be a year’s pay
confer these powers. A statutory instrument can be for an unskilled worker.) But the implications for other
declared invalid on the grounds of being unreason- tax avoiders were terrifying. Under the system of pre­
able only if the objectives of the instrument were so cedent, all other English courts are bound to follow
outrage­o usly unreasonable that Parliament could precedents formulated in the House of Lords. So other
not have intended the powers created by the ena- tax avoiders appearing before the courts would have to
bling Act to be used in the way in which they were be fined on the same basis as Hinchy had been fined. A
used. The courts can also declare a statutory instru- court hearing the case of a wealthy businessman, who
ment ultra vires on the grounds that some mandatory rightly paid £1 million tax in the year but avoided pay-
­procedure, such as a mandatory duty to consult, was ing £5, would be bound to fine him £3 000 035!
not adhered to. It is almost certain that the meaning applied by the
Below (at 1.4) we examine the effect of European House of Lords was not what Parliament had in mind
Community legislation, much of which is implemented when the Income Tax Act was passed. The statute
into UK law by statutory instrument under s.2(2) of was badly worded. The blame for this must lie with
the European Communities Act 1972. the Parliamentary draftsmen. But at the same time it
must be realised that they have a near impossible task.
Skilled lawyers though these draftsmen are, they can-
1.3.1.4 Interpretation of statutes
not possibly foresee every interpretation of the statutes
The three approaches they prepare. But once the statute has become law,
When considering the meaning of legislation, any lawyer in the land might be looking for an inter-
the courts are guided by three approaches. These pretation which would suit his client. In Hinchy’s case
approaches are often called rules – the literal rule, the the Revenue lawyers, with typical ingenuity, spotted
golden rule and the mischief rule. The rules contradict a literal meaning that had not been apparent before.
each other to a certain extent and it cannot be certain The House of Lords gave the words in the statute their
which rule a court will apply. In general, the court will literal meaning, holding that the words of the statute
tend to use whichever of the approaches seems best were not ambiguous. When the literal rule is applied
12  Chapter 1  The legal system

the court is seeking not what Parliament meant to say defendant was charged with bigamy. He had married
when it enacted the statute, but rather the true mean- another woman even though his first wife was still
ing of the words which Parliament used. alive and he was not divorced from her. Section 57
If Parliament considers that the application of the of the Offences Against the Person Act 1861 pro-
literal rule by a high-ranking court causes a statute to vided that a person should be guilty of bigamy if
be interpreted in a way which is contrary to what was ‘being married, [he or she] shall marry any other
intended when the statute was enacted, it can pass an person during the life of the former husband or wife’.
amending Act to rectify the situation. The defendant argued that he was not guilty of the
There has been a movement away from the lit- offence as he had not legally married the second wife,
eral approach in recent years. In McMonagle v because you cannot legally get married if you are
Westminster City Council [1990] 2 AC 716 the House already married. He claimed that he had only gone
of Lords unanimously indicated that the literal rule through a ceremony of marriage with the second
would not be applied where to do so would produce woman. The court gave the word ‘marry’ in s.57 the
an absurd result. In such a case the golden rule, also meaning of going through a ceremony of marriage,
known as the purposive approach, would be applied. rather than the meaning of contracting a legal mar-
When the golden rule is used a judge gives the words riage, and therefore convicted the defendant. Had
in a statute their ordinary, literal meaning as far they not done this, bigamy would have been imposs­
as possible, but only to the extent that this would ible to commit. In Bloomsbury International Ltd v
not produce some injustice, absurdity, anomaly or Sea Fish Industry Authority [2011] UKSC 25 the
contradiction. Supreme Court ­considered ambiguous words in the
The idea that the court should prefer an outcome Fisheries Act 1981. Lord Mance said that the starting
which is not absurd to the one which is absurd seems point should not be that words have a natural mean-
obviously to be correct. An example of the golden rule ing, an idea which he did not always find very help-
being used in this way can be seen in Adler v George ful. Rather the starting point should be the statutory
[1964] 2 QB 7. The defendant had got into an RAF purpose of the legislation and the general scheme by
station, which was classified as a prohibited place by which it was to be put into effect. He also said that
the Official Secrets Act 1920. He was arrested and where an Act has been amended, as the 1981 Act
charged with obstructing a member of the armed had been, it should not lightly be concluded that
forces ‘in the vicinity of a prohibited place’, contrary Parliament had misunderstood the general scheme
to s.3 of the 1920 Act. The defendant argued that as of the legislation when making the amendment. Lord
he was actually inside the prohibited place he was not Phillips said that if a certain meaning had been given
in the vicinity of it and should not therefore be con- to the ambiguous words for thirty years then this, at
victed. The Divisional Court rejected this argument the very least, led to a presumption that this meaning
and held that the proper construction of s.3 was to was the correct one.
read the words ‘in the vicinity of’ as ‘in or in the vicin- The oldest of the three main rules of statutory
ity of’. Lord Parker CJ gave the only judgment of the interpretation is the mischief rule. In Heydon’s Case
court and said that it would be absurd to read the (1584) 3 Co Rep 7a it was established that before
section as the defendant had argued that it should applying the mischief rule the court should ask itself
be read. four questions. First, what was the common law
When the words of the statute are not ambiguous before the Act was passed? Second, what mischief
but would, if interpreted literally, produce an absurd or problem did the Act seek to rectify? Third, what
result, the golden rule is sometimes seen as an exten- remedy had Parliament decided upon to cure the mis-
sion of the literal rule. First, the court considers the chief? Fourth, what was the reason for providing the
literal rule. Seeing that the literal rule would lead to remedy? Having considered these four questions, a
a manifestly absurd result and wishing to avoid this court would be guided as to how the statute should be
result, the court chooses to apply the golden rule interpreted. This rule is only to be used when a stat-
and give the statutory words a meaning other than ute is ambiguous, it should not be used to deal with
their normal meaning. The following case provides a clear, but absurd, meaning. The following case pro-
an example. In R v Allen (1872) LR 1 CCR 376 the vides an example of the rule.
1.3 Sources of English law  13

(3) the substance of the provision Parliament would


Smith v Hughes [1960] 1 WLR 830
have made, although not necessarily the precise
Two prostitutes, standing either on a balcony or behind words Parliament would have used, had the error
the windows of their house, attracted passers-by in in the Bill been noticed.
order to invite them into the house. They did this by
The third of these conditions is of crucial importance.
tapping on the balcony rail or the window panes. They
were charged under s.1(1) of the Street Offences Act
Otherwise any attempt to determine the meaning of
1959, which made it an offence to solicit ‘in a street the enactment would cross the boundary between con-
or public place’ for the purposes of prostitution. The struction and legislation.’
defendants argued that they were not guilty as they
Lord Nicholls went on to say that even if the three
had not been in the street or in a public place when
they had been soliciting customers.
conditions were satisfied the court might neverthe-
less sometimes find itself inhibited from interpreting
Held. Applying the mischief rule, the defendants were
the statutory provision in accordance with what it was
guilty. It did not matter that they were not literally in the
street when soliciting, if the solicitation was projected to satisfied was the underlying intention of Parliament.
and aimed at somebody who was walking in the street. This might be the case if the alteration in language
would be too far-reaching, or if the subject matter of
COMMENT Lord Parker CJ, ‘For my part, I approach the statutory provision called for strict interpretation
the matter by considering what is the mischief aimed of the statutory language, as in penal legislation. Lord
at by this Act. Everybody knows that this was an Act Nicholls’s speech was followed by the Supreme Court
intended to clean up the streets, to enable people in Farstad Supply A/S v Enviroco Ltd [2011] 1 WLR
to walk along the streets without being molested or 921, in which Lord Collins thought it likely that a pro-
solicited by common prostitutes. Viewed in that way, vision had been incorrectly omitted from a statute.
it can matter little whether the prostitute is soliciting
However, the court could not be ‘abundantly sure’ of
while in the street or is standing in a doorway or on
this and so it could not read the missing words into the
a balcony, or at a window, or whether the window is
open or shut or half open; in each case her solicitation statute as to do so would be ‘an impermissible form of
is projected to and addressed to somebody walking in judicial legislation’.
the street. For my part, I am content to base my decision The Court of Appeal recently applied the mischief
on that ground and on that ground alone.’ rule in Wolman v Islington LBC [2007] EWCA Civ
823. A GLC bye-law made it a criminal offence to
park a vehicle with one or more wheels ‘on any part
In Inco Europe Ltd v First Choice Distribution [2000]
of’ a pavement. The claimant, a barrister, parked his
1 WLR 561 Lord Nicholls, giving the only speech of
motorbike on a stand in such a way that its wheels
the House of Lords, considered the circumstances in
were above the pavement but not actually on it. He
which the court could read words into a statute to cor-
therefore claimed not to have committed the offence.
rect an obvious drafting error. Lord Nicholls said:
Applying the mischief rule, the Court of Appeal held
‘This power is confined to plain cases of drafting mistakes. that the offence was committed if one or more of the
The courts are ever mindful that their constitutional role bike’s wheels were either on or over the pavement.
in this field is interpretative. They must abstain from any Finally, it should be remembered that the rules
course which might have the appearance of judicial leg- relating to statutory interpretation are guiding prin-
islation. A statute is expressed in language approved and ciples, rather than rules which must be obeyed. In
enacted by the legislature. So the courts exercise consid- Maunsell v Olins [1975] AC 373, Lord Reid said: ‘They
erable caution before adding or omitting or substituting [the rules of construction] are not rules in the ordin­
words. Before interpreting a statute in this way the court ary sense of having some binding force. They are our
must be abundantly sure of three matters: servants, not our masters. They are aids to construc-
(1) the intended purpose of the statute or provision in tion, presumptions or pointers. Not infrequently one
question; “rule” points in one direction, another in a d ­ ifferent
(2) that by inadvertence the draftsman and direction. In each case we must look at all relevant
Parliament failed to give effect to that purpose in circumstances and decide as a matter of judgment
the provision in question; and what weight to attach to any particular “rule”.’ In
14  Chapter 1  The legal system

Cusack v London Borough of Harrow [2013] UKSC the singular includes the plural; and, when a statute
40 Lord Neuberger said: ‘In my view, canons of con- refers to the masculine it also includes the feminine.
struction have a valuable part to play in interpretation, Until relatively recently, a judge interpreting a stat-
provided that they are treated as guidelines rather ute was not allowed to consider the speeches which
than railway lines, as servants rather than ­masters . . . MPs made when the statute was being debated.
Provided that it is remembered that the canons exist However, in the following case, a landmark decision,
to illuminate and help, but not to constrain or inhibit, the House of Lords held that Hansard could be con-
they remain of real value.’ sulted if this was the only way to solve an ambiguity.

Minor rules of statutory interpretation


Other, less important, rules of statutory interpre­tation Pepper (Inspector of Taxes) v Hart
are applied by the courts. The ejusdem generis rule [1992] AC 593 (House of Lords)
(of the same kind rule) means that general words
which follow specific words must be given the same Masters at a fee-paying school were entitled to have
their sons educated at the school at one-fifth of the
type of meaning as the specific words. For example,
usual price. During the years in question the school
the Betting Act 1853 prohibited betting in any ‘house,
was never full and so no pupils were turned away in
office, room or other place’. In Powell v Kempton consequence of this right. Section 61 of the Finance
Racecourse Company [1899] AC 143, the House of Act 1976 provided that masters who took advantage
Lords held that the Act did not apply to betting at a of the scheme should be taxed on the cash equivalent
racecourse. The specific words, ‘house, office, room’, of the benefit they had received. The masters con­
were all indoor places and so the general words, ‘or tended that the cash benefit was the marginal cost of
other place’, had to be interpreted as applying only to admitting their sons and therefore practically nothing.
indoor places. The Revenue argued that the cash equivalent could
The rule expressio unius est exclusio alterius (to be found for each pupil by dividing the whole costs of
express one thing is to exclude another) means that if running the school by the number of pupils attending
the school. The statute was ambiguous as to which
the statute lists specific words and these are not fol-
meaning was correct.
lowed by any general words, then the statute only
applies to the specific words listed. For example, in R v Held. The masters should only be taxed at the mar­
ginal cost of their sons attending the school. This was
Inhabitants of Sedgeley (1831) 2 B & Ad 65, a statute
the intention of Parliament, as could be discovered
which raised taxes on ‘Lands, houses, tithes and coal
by consulting Hansard. The rule that Parliamentary
mines’, did not apply to other types of mines such as material could not be considered by a court should
the mine in question, a limestone mine. be relaxed if (i) the legislation was either ambiguous or
obscure, or led to absurdity, and (ii) the material relied
Aids to construction of statutes upon consisted of statements made by the relevant
When considering the meaning of a statute, a court Minister, or promoter of the Bill, or other material such
may consider certain aids to construction. These aids as was necessary, and (iii) the statements relied upon
are usually labelled either intrinsic aids, which are were clear.
part of the statute itself, or extrinsic aids, which are
not part of the statute itself. Intrinsic aids would
include interpretation sections of the Act, which state Presumptions
the meaning of words used in the Act. The Act’s title There are certain presumptions which a court may
and punctuation are also of relevance as intrinsic aids. make when in doubt as to the meaning of a statute.
It is not clear to what extent marginal notes and head- These are: a presumption against changing the com-
ings are to be regarded as aids to construction of the mon law (so a statute does not change the common
statute. It is probable that both can be considered. law in any particular way unless it makes clear that it
Extrinsic aids to interpretation include dictionaries, does); a presumption against ousting the jurisdiction
previous statutes concerning the same subject matter, of the courts (only if clear language is used is a statute
and the Interpretation Act 1978. Despite the name of to be read as taking away the right to take a case to
this Act it is concerned with relatively minor matters court); a presumption that citizens will not have their
such as: unless there is an indication to the contrary, liberty, property or rights taken away; presumption
1.3 Sources of English law  15

against criminal liability without mens rea (for the 1.3.2 Judicial precedent
meaning of mens rea see Chapter 22 at 22.1); a pre-
The doctrine of judicial precedent, or stare decisis,
sumption that a statute does not bind the Crown; a
holds that judges in lower-ranking courts are bound to
presumption that Parliament does not intend a statute
follow legal principles previously formulated by judges
to conflict with international law and a presumption
in higher-ranking courts. As so much of the law in this
against a statute having retrospective effect. Some
book is derived from precedent, it seems important to
statutes clearly state that they are to have retrospective
examine the system in some detail.
effect. (See, for example, s.3 of the Compensation Act
2006, set out in Chapter 12 at 12.2.4.3.)
1.3.2.1 The hierarchy of the courts
Impact of the Human Rights Act 1998 The courts are arranged in an hierarchical structure.
Later in this chapter, at 1.5.1, the Human Rights Act The structure of the courts is considered in more detail
1998 is considered. As we shall see, s.3(1) of this Act in Chapter 2. Here it is enough to outline the five levels
requires that, so far as it is possible to do so, all leg- in the hierarchy.
islation must be read and given effect in a way which
is compatible with the Convention rights. In R v A The Supreme Court (formerly the House of Lords)
[2001] 2 AC 45 Lord Steyn said that a declaration of The Supreme Court is the most senior of the
incompatibility was a measure of last resort and to English courts. It replaced the House of Lords on
be avoided. Such a declaration should be made only 1 October 2009. The court is comprised of 12 judges,
when it was plainly impossible to avoid making it. In known as Supreme Court justices (Law Lords), five
S (Children) (Care Order: Implementation of Care of whom usually sit in any one case. The Supreme
Plan), Re [2002] UKHL 10, [2002] 2 AC 291, [2002] Court is not bound to follow any previous precedents.
2 WLR 720 Lord Nicholls said that use of s.3(1) was Furthermore, the decisions of the Supreme Court are
obligatory and that it was not an optional rule of con- binding on all courts beneath it. Until 1966 the House
struction. The new approach seems to be first to ask if of Lords was bound to follow its own previous decisions.
the Act in question is incompatible with a Convention However, in 1966 a Practice Statement was made by
right. If so, then to ask whether any incompatibility Lord Gardiner on behalf of the other Law Lords. This
could be avoided by using the purposive approach, statement said that the House of Lords recognised that
the mischief rule or Pepper v Hart. Finally, the Act if the doctrine of precedent was too rigidly adhered
in question must be read in accordance with s.3(1) of to, the development of the law might be hindered
the Human Rights Act, unless there was evidence that and injustice might be caused in a particular case.
Parliament had intended to legislate in a way which The House of Lords would therefore normally treat
was contrary to the Act. its own decisions as binding, but would depart from
them where it appeared right to do so. In doing this
the Lords would bear in mind the danger of disturb-
ing agreements previously entered into. The Supreme
Test your understanding 1.2
Court will adopt a similar approach.
1 What three procedures must be satisfied before In practice, the House of Lords only rarely departed
a Bill becomes a statute? from one of its own previous decisions. In Horton v
2 What is the meaning of a codifying Act, a Sadler [2006] UKHL 27, [2006] 2 WLR 1346 Lord
consolidating Act and an amending Act? Bingham said, ‘Over the past 40 years the House has
3 What is delegated legislation? What are the main exercised its power to depart from its own precedent
types of delegated legislation? rarely and sparingly. It has never been thought enough
4 What are the three main rules of statutory to justify doing so that a later generation of Law Lords
interpretation? What is the effect of these rules? would have resolved an issue or formulated a principle
5 What is the effect of the ejusdem generis rule differently from their predecessor . . . As made clear
and the rule expressio unius est exclusio alterius? in the 1966 Practice Statement ([1966] 1 WLR 1234)
6 What intrinsic and extrinsic aids can be used to former decisions of the House are normally binding.
assist in interpreting a statute? But too rigid adherence to precedent may lead to
injustice in a particular case and unduly restrict the
16  Chapter 1  The legal system

development of the law. The House will depart from a (2) If a previous Court of Appeal decision had later
previous decision where it appears right to do.’ been overruled by the House of Lords the Court of
Sometimes seven, or nine, judges sit rather than Appeal should not follow it.
five. (See, for example, Prest v Petrodel Resources Ltd (3) A previous Court of Appeal decision should not
[2013] UKSC 34, considered in Chapter 16 at 16.3.) be followed if it was decided through lack of care,
However, a later sitting of the court can still refuse ignoring some statute or other higher-ranking
to follow the decision made by the seven- or nine-­ authority such as a previously decided House of
member court. Lords case.
The Supreme Court justices also hear appeals
Although the principles set out apply to both the
from the courts in Her Majesty’s dominions and from
Civil and Criminal Divisions of the Court of Appeal,
some Commonwealth countries. When they sit in this
it is generally recognised that the Criminal Division
particular capacity they are known as the Judicial
has slightly wider powers to depart from its own
Committee of the Privy Council, commonly shortened
previous decisions. It can do so where justice would
to the Privy Council. Countries from which appeals are
otherwise be denied to an appellant. In R v Magro
still heard by the Privy Council include Bermuda, the
[2010] EWCA Crim 1575, [2010] 3 WLR 1694 the
Falkland Islands, Gibraltar and Jamaica. Technically,
Court of Appeal rejected an argument that a five
decisions of the Privy Council are not binding on
judge Court of Appeal (Criminal Division) was entitled
English courts. However, in practice they are usually
to disregard the only previous decision of a three
regarded as having the same a ­ uthority as Supreme
judge Court of Appeal (Criminal Division) on a dis-
Court decisions. (An example of this  can be seen in
tinct and clearly identified point of law, reached
Chapter  12 at 12.2.5, where the Privy  Council  deci-
after full argument and close analysis of the relevant
sion in The Wagon Mound [1961] AC 388 is gener-
legislative provisions. This was particularly the case
ally taken to have overruled the long-­standing Court of
where the consequences of doing so would be to the
Appeal decision in Re Polemis [1921] 3 KB 560.)
disadvantage of the defendant. Generally, the Court
The Court of Appeal of Appeal is comprised of three judges. Sometimes
The Court of Appeal is the next rung down the lad- a full court of five judges sit in the Court of Appeal.
der. Its decisions are binding on all lower courts. They A full court of the Court of Appeal has no greater
are also binding on future Court of Appeal judges. In power to depart from its own previous decisions than
terms of precedent the Court of Appeal is the most an ordinary court.
important court, hearing many more appeals than the
Divisional Courts
Supreme Court. There are 38 Court of Appeal judges,
Each of the three divisions of the High Court has a
known as Lord Justices of Appeal. However, the
Divisional Court, staffed by three High Court judges.
Supreme Court hears cases of greater public impor-
In certain areas of business law the Queen’s Bench
tance and there is no doubt that its decisions have the
Divisional Court makes a large number of signifi-
greatest authority.
cant precedents. This court hears appeals from lower
Following Lord Gardiner’s Practice Statement of
courts, as explained in Chapter  2. Decisions of the
1966, the Court of Appeal made several attempts to
Divisional Courts are binding upon other sittings of
depart from its own previous decisions. However, the
the Divisional Court (subject to the Young v Bristol
Practice Statement itself stated that it was not meant
Aeroplane Co Ltd exceptions), on High Court judges
to apply to any court other than the House of Lords. It
sitting alone and on all inferior courts. Decisions of the
is plain, therefore, that the Court of Appeal is bound by
Divisional Court are not binding upon the Employment
its own previous decisions, the only exceptions to this
Appeal Tribunal (EAT). (The jurisdiction of the EAT
principle having been formulated in Young v Bristol
is explained in Chapter 20, Introduction.) Divisional
Aeroplane Co Ltd [1944] KB 718. In that case it was
Courts are bound by the decisions of the House of
decided that the Court of Appeal could depart from its
Lords (now the Supreme Court), the Court of Appeal
own previous decisions in only three circumstances.
and by previous decisions of Divisional Courts. In
(1) Where there were two conflicting earlier Court of criminal cases a Divisional Court may depart from the
Appeal decisions it could decide which one to fol- decision of a previous Divisional Court where it would
low and which one to overrule. cause injustice not to do so.
1.3 Sources of English law  17

The High Court Courts to which appeals are made (appellate


Judges sitting in the High Court are bound by decisions courts) usually have more than one judge sitting.
of the House of Lords (now the Supreme Court) the Fortunately, it is an odd number of judges rather
Court of Appeal and the Divisional Courts. There are than an even number. A majority of judges will there-
currently 108 High Court judges. High Court decisions fore decide for one of the parties or for the other. If
are binding upon all lower courts. High Court judges are the decision is unanimous, for instance the Court of
not bound by the decisions of other High Court judges. Appeal decides 3 : 0 for the defendant, then the ratio
However, High Court judges do tend to follow each of the case can be found in the judgments of any of
other’s decisions as not to do so can lead to uncertainty, the three judges. If the Court reaches a decision by a
particularly as regards decisions made and agreements majority of 2 : 1, then the ratio must be found in the
reached on the strength of the earlier judgment. decisions of the two judges in the majority. The decision
of the judge in the minority may be persuasive as
Inferior courts obiter, but it cannot form a ratio which will bind future
The decisions of inferior courts (the Crown Court, the courts.
county court and the magistrates’ court) are not bind-
ing on any other courts. Judges sitting in these courts
do not make binding precedents. Example
All English courts must take into consideration
If you read the case of Carlill v The Carbolic Smoke
decisions made by the European Court of Human Ball Company [1893] 1 QB 525 (Court of Appeal),
Rights. The effect of this is considered below at 1.5. which is set out in Chapter 3 at 3.1.2, you will see that
The European Court of Justice, which gives authori­ it concerned whether or not an advertisement made
tative opinions on matters of EU law, does not use a sys- by the company was an offer which could be accepted
tem of precedent. However, the decisions of this court by a member of the public buying a smoke ball, using
are binding upon all English courts, a matter consid- it and catching flu. The Court of Appeal held that the
ered below at 1.4. advertisement was an offer and that the claimant was
entitled to the £100 reward as she had accepted the
offer and thus created a contract between herself and
1.3.2.2 The binding part of the case
the company. This famous case can be used to dem­
The ratio decidendi, loosely translated from the onstrate several points.
Latin as the reason for the decision, is the part of the First, the ratio of the case will be decided by later
judgment which is binding on other courts. The ratio courts. However, it seems fairly safe to say that the
decidendi might be described as any statement of law broad ratio is something like, ‘Newspaper advertise­
which the judge applied to the facts of the case and ments offering rewards to members of the public who
upon which the decision in the case is based. The ratio perform certain well-defined actions can amount to
of a case will be decided by future courts when they contractual offers, which can be accepted by mem­
bers of the public who perform those actions, as long
are considering whether or not they are bound by the
as the advertisement was not too vague to be under­
ratio. Cases may contain more than one ratio.
stood by an ordinary member of the public.’ Further
Statements of law which did not form the basis of ratios might be that an offer can be made to the whole
the decision are known as obiter dicta (literally, other world and that the offer of a unilateral contract can be
things said). Obiters can arise as statements of law accepted without notification of acceptance, merely
based on facts which did not exist. It commonly hap- by performing the action requested by the offeror. An
pens that judgments state what the law would have example made by Bowen LJ, concerning a reward
been if the facts had differed in some material way. offered for a lost dog, was clearly obiter dicta as it
Statements of law which were wider than was necess­ was based on facts which did not arise. As this case
ary to deal with the facts of the particular case are was decided in the Court of Appeal, the ratio decid-
also obiter dicta. Examples of obiters can be found in endi of the case would be binding upon later sittings
of the Court of Appeal and upon all inferior courts, but
most cases. Obiters are not binding on lower courts, no
not upon the Supreme Court. Bowen LJ’s obiter could
­matter which court made the obiter. However, if the
be persuas­ive if a court was considering a case con­
judges in a superior court strongly express an obiter cerning a reward for finding a lost dog or more gener­
then a lower court judge would almost certainly follow ally by way of analogy.
this in the absence of a binding precedent.
18  Chapter 1  The legal system

A higher-ranking court can overrule a ratio cre- Precedent suffers from another disadvantage–that
ated by a lower-ranking court. The Supreme Court, for bad decisions can live on for a very long time. As we
instance, could overrule Carlill’s case later this year have seen, before 1966 a House of Lords decision
and hold that newspaper advertisements cannot be was binding on all other courts, including future sit-
offers. (This is most unlikely, it is merely an example.) tings of the House of Lords. If a bad House of Lords
If the Supreme Court were to overrule the decision decision was made, then before 1966 it could be
then the ratio of Carlill’s case would be deemed to changed only by Parliament, which was generally far
have been wrongly decided. When overruling a case, too busy to interfere unless grave injustice was being
the superior court specifically names the case and the caused. So an argument can be made that errors are
rule of law being overruled. A statute may overrule perpetuated.
the ratio of a particular case, but the statute will not A third disadvantage is that the vast number of
mention the case concerned. (See, for example, s.3 of precedents can take away the very certainty which
the Compensation Act 2006, which is considered in the system is said to promote. This is particularly true
Chapter 12 at 12.2.4.3) when appellate courts apply the law creatively to
Many cases are reversed on appeal. Reversing is achieve justice in the particular case in front of them.
of no legal significance. It merely means that a party A fourth disadvantage is that the higher courts can-
who appeals against the decision of an inferior court not choose to hear a case unless the parties appeal that
wins the appeal. No rule of law is necessarily changed. case to the court in question. So the Supreme Court,
For example, in the fictitious case Smith v Jones, let us for example, might wish to overrule or modify an
assume that Smith wins in the High Court and Jones earlier precedent but would be unable to do so until
appeals to the Court of Appeal. If Jones’s appeal is an appropriate case was appealed all the way to the
allowed, the Court of Appeal have reversed the judg- Supreme Court.
ment of the High Court. It might also be a disadvantage of the system that
decisions of precedent-making courts act retrospec-
Disadvantages of the system of precedent tively as well as prospectively. That is to say they alter
In addition to the 12 Supreme Court justices, the the law not only in the future but also in the past. This
38 Lord Justices of Appeal and the 108 High Court can be unfair if a person has relied on the law as it was,
judges, there are five Heads of Division. The Heads of only for a precedent-making court to change the law
Division are: the Lord Chief Justice, who is also Head when deciding a case. The House of Lords considered
of Criminal Justice; the Master of the Rolls, who is this matter in Re Spectrum Plus [2005] UKHL 41,
also Head of Civil Justice; the President of the Queen’s [2005] 3 WLR 58 and rejected an argument that their
Bench Division; the President of the Family Division, rulings should be prospective only. There are excep-
who is also Head of Family Justice and the Chancellor tional circumstances in which retrospective effect
of the High Court. Every sentence of every judgment would not be appropriate, but generally precedents
made by a High Court judge might contain a precedent are effective retrospectively as well as prospectively.
which would be binding on future judges. Plainly, it These disadvantages of the system of precedent are
is an impossible task for anyone to be aware of all of thought to be outweighed by the advantages of the
these potential precedents. In fact, so many High Court system. One final criticism which might be made is
judgments are made that most are not even reported that under the system of precedent judges make most
in the law reports. of the law. Most laymen might be surprised to find that
Law reporting is not a Government task but is car- this is the case and might question whether it ought
ried out by private firms. The law reporters are barris- to be. Some have argued that as regards decisions
ters and they weed out the vast number of judgments which might be classed as ‘political’ the judges are not
they consider to be unimportant. Even so, as students the most appropriate body to create the law. However,
become aware when they step into a law library, the it seems hard to imagine that anyone other than the
system of precedent does mean that English law is very judiciary could so effectively create law of a technical
bulky. There are so many precedents that it can be very nature, such as the law of contract, and so effectively
hard for a lawyer to find the law he is looking for. The allow it to respond to the changing needs of business.
fact that major law reports are now available on the The Supreme Court Justices are careful not to
Internet has made them more easily accessible. usurp the role of Parliament. In Gregg v Scott [2005]
1.3 Sources of English law  19

UKHL 2, [2005] 2 AC 176, for example, Lord Hoffmann is nowadays impossible for any but the very able to
said that to change the law in a way which a barrister become Supreme Court Justices.
had suggested would be such a radical change as to The way in which a person might become a
amount to a legislative act and that if the law was to be Supreme Court justice demonstrates that only those
changed in this way that was a matter for Parliament. of the highest ability could achieve it. Until recently,
(The case considered whether a person who had lost a judges were chosen only from the ranks of barristers.
chance should be able to sue in the tort of negligence Now solicitors too can become judges. The Bar is a
and is considered in Chapter 12 at 12.2.4.3). However, career, rather like acting, which has extremes of suc-
in April  2011 the Prime Minister, David Cameron, cess and very many talented young people enter it. If a
speaking to voters in Luton, said that he was uneasy barrister gains promotion and becomes a circuit judge
that privacy law was being developed by the j­udiciary he will sit in the Crown Court or the county court. This
rather than by Parliament. He said, ‘What ought to is an honour and an achievement. Even so, a circuit
happen in a parliamentary democracy is Parliament, judge will make no law. He will supervise proceedings,
which you elect and put there, should decide how decide who wins civil cases, award damages and sen-
much protection do we want for individuals and how tence those convicted in the Crown Court. But no mat-
much freedom of the press and the rest of it. So I am a ter how brilliant a circuit judge’s analysis of the law
little uneasy about what is happening . . . It is an odd might be, it will not form a precedent.
situation if the judges are making the law rather than High Court judges are a different matter. There are
Parliament.’ His comments seem apt as regards the only 110 of them and they make the law of England
creation of law which might be regarded as ‘political’. from the very first case in which they sit. Every word
they speak is open to scrutiny by the other judges, by
Advantages of the system of precedent lawyers and by academics. If they were not very able,
The first advantage is that the device of distinguish- this would soon be noticed.
ing a case means that the system of precedent is not About 50 judges are promoted beyond the High
entirely rigid. A judge who is lower down the hierarchy Court to the Supreme Court or Court of Appeal. These
can refuse to follow an apparently binding precedent days it seems unthinkable that any but the very able
if he distinguishes it on its facts. This means that the should go this far.
judge will say that the facts of the case he is consider- It is not only on the grounds of ability that the
ing are materially different from the facts of the case Supreme Court ought to come to very high quality
by which he appears to be bound. This device of dis- decisions. Unlike lower court judges, the Supreme
tinguishing gives a degree of flexibility to the system Court justices do not decide a case there and then.
of precedent. It allows judges to escape precedents They hear the facts and the arguments in the case
which they consider inappropriate to the case in front and then reserve their judgment. They talk to each
of them. other informally to see whether there is a consensus
A second and more important advantage of precedent of o­ pinion. If there is a consensus one of the judges is
is that it causes high-quality decisions to be applied in ­chosen to write the judgment. If there is no ­consensus
all courts. Judges in appellate courts have the time and the minority will write their own dissenting judg-
the experience to make very good decisions, often on ments. In a particularly difficult case the process of
extremely complex matters. These decisions can then writing the judgment can take a very long time.
be applied by much busier and less experienced lower English Commercial Law is very often adopted by
court judges, who do not have to give the same consid- businesses of different nationalities when they con-
eration as to whether the principles of law involved are tract with each other. In the event of a dispute they
right or wrong. consult English lawyers and settle their cases in the
It must be realised that the House of Lords, the English courts or in front of English arbitrators. The
highest English court in England, until it became earnings to the United Kingdom from these disputes
the Supreme Court, was quite different institution amount to a considerable invisible export. English
from the Parliamentary House of Lords. Historically, law would not be adopted in this way if it were not
it has been possible for people of no great ability, thought to be the most suitable system of law for
whether through inheritance or public service, to resolving commercial disputes. The main reason why
gain entry to the Parliamentary House of Lords. It it should be thought the most suitable is that the
20  Chapter 1  The legal system

system of precedent allows for excellent updating of be appropriate. Finally, he noted that the Strasbourg
the law in a way which can keep up with changing Court always takes full effect of national authorities
business trends. and the particular facts of any case:
A third major advantage of the system of precedent
‘Thus it is for national authorities, including national
is that it is consistent and certain. Lawyers can predict
courts particularly, to decide in the first instance how
the outcome of most cases, as almost any legal prob-
the principles expounded in Strasbourg should be
lem will have been previously considered by the courts applied in the special context of national legislation,
and a precedent made. This certainty enables the vast law, practice and social and other conditions. It is
majority of cases to be settled without the need to go by the decisions of national courts that the domestic
to court. (The practical importance of this is explained standard must be initially set, and to those decisions
in Chapter  2 at 2.4.) In Broome v Cassell & Co Ltd the ordinary rules of precedent should apply.’
[1972] AC 1027 Lord Hailsham said, ‘in legal matters,
some degree of certainty is at least as valuable a part of However, Lord Bingham did accept that a House of
justice as perfection’. Lords decision made before the 1998 Act need not
necessarily be followed if the Human Rights Act
Impact of the Human Rights Act 1998 undermined the policy upon which the decision was
In Kay and others v Lambeth LBC [2006] UKHL made, and if no reference was made to the European
10, [2006] 2 AC 465 the House of Lords considered Convention in any of the Lords’ opinions. Even here
whether or not a lower court should follow a precedent though, he thought that the facts of the case which was
of a higher court if a judgment of the Court of Human not being followed would have to be of an ‘extreme
Rights, in Strasbourg, made after the precedent contra- character’ so as to make the case a ‘very exceptional
dicted it. Which should be followed, the earlier English case’. All of the other six members of the House of
precedent or the later Strasbourg ruling? The House Lords agreed with what Lord Bingham said.
of Lords decided that the earlier English precedent
should be followed and leave to appeal against this Alternatives to the system of precedent
decision should be granted. Most other countries do not use a system of precedent.
Lord Bingham considered the question in some France, which is fairly typical of European countries,
depth. First he noted that s.2(1) of the 1998 Act has a codified system of law known as a civil law sys-
required domestic courts to take account of judgments tem. The civil law is contained in the various civil
at the Court of Human Rights, but it did not strictly codes. French judges, who are civil servants rather
bind them in the way that s.3(1) of the European than lawyers, do not feel compelled to interpret the
Communities Act 1972 and rulings of superior domestic codes according to previous decisions until those
courts bound them. (Section  3(1) of the ECA 1972 ­decisions have for some time unanimously interpreted
requires English courts to follow decisions of the the codes in the same way. Scotland has a mixed legal
European Court of Justice, the highest court on matters system. It is based on the civil law system, but has
of EU law.) He also said that s.6(1) HRA 1998 made it strong common law influences. In Scotland the system
unlawful for public authorities, such as courts, to act in of precedent is used, but a precedent does not have
a way which is incompatible with a Convention right. quite the same force as in England.
Second, he noted that precedent was the cornerstone
of our legal system. Third, he rejected an argument
that the earlier precedent should be ignored where it Test your understanding 1.3
was ‘plainly inconsistent’ with the Strasbourg judg- 1 What is meant by the doctrine of judicial
ment, pointing out that the appellate courts were often precedent?
divided in deciding whether or not two such judgments 2 What are the five main levels of the courts, for
were plainly inconsistent with each other. Fourth, the purposes of precedent?
he noted the huge importance of certainty. Fifth, he 3 What is meant by ratio decidendi and obiter
said that this certainty was best achieved by adhering dicta? What is the significance of the distinction?
to the rules of precedent, even in the context of the 4 What is meant by overruling, reversing and
Convention. Leave to appeal should be granted and distinguishing?
leapfrog appeals (see Chapter 2 at 2.1.7) might well
1.4 European Union law  21

1.4 European Union law the creation of a European Union with the three fol-
lowing pillars: the European Community; a common
In 1952 the European Coal and Steel Community foreign and security policy and cooperation in the
was set up with the object of preventing any fields of justice and home affairs. Also, the European
European country from building up stockpiles of Parliament was given greater power to legislate and a
steel and coal, the raw materials needed to wage timetable was set for economic and monetary union.
war. Following the success of this, the European The Treaty envisaged that economic and monetary
Economic Community (the EEC) came into existence union would be achieved in three stages. However, the
in 1957. The six orig­inal Member States signed the UK and Denmark opted out of the third stage. The UK
Treaty of Rome–also known as the EEC Treaty–which also opted out of participation in the social chapter,
founded the European Economic Community or the which set out employment and social rights.
‘common market’. These six original countries were The Treaty of Amsterdam was signed in
Germany, France, Italy, Belgium, the Netherlands and October 1997 and came into force in May 1999. This
Luxembourg. Part of the founding philosophy of the Treaty aimed for closer political cooperation between
Community was to provide an appropriate response Member States. It incorporated much of the Justice
to the Soviet Bloc countries to the East, but the moti- and Home Affairs pillar into the EC Treaty and gave
vation was also more pragmatic in that there seemed Member States a greater power to veto proposals
to be obvious advantages to the creation of a free which would affect their vital national interests. It
market in Europe. At the time of writing there are 27 again increased the power of the European Parliament
Member States, the original six having been joined and gave the EU greater power to fight fraud, to pre-
by Austria, Bulgaria, Cyprus, the Czech Republic, vent discrimination and to protect the environment. It
Denmark, Estonia, Finland, Greece, Hungary, Ireland, also renumbered the Articles of the EC Treaty.
Latvia, Lithuania, Malta, Poland, Portugal, Romania, The Treaty of Lisbon was signed by all EU leaders in
the Slovak Republic, Slovenia, Spain, Sweden and the December 2007. However, it could not become effec-
United Kingdom. Croatia, Macedonia, Iceland and tive until all Member States ratified it. In June 2008,
Turkey are candidate countries, meaning that their Irish voters rejected the Treaty in a referendum. In
application to join has been officially accepted by the October 2009, at the second time of asking, they voted
European Council. Five other Balkan states are poten- in favour of the Treaty. The Treaty came into force in
tial candidate countries. December 2009 when the Czech Republic became the
The United Kingdom joined the EEC in 1973. In last country to ratify it.
order to be admitted as a member, the UK Parliament The Treaty amended the existing treaties, incor­
passed the European Communities Act 1972. This porating them into a new treaty called the Treaty on
statute agreed that Community law should be directly the Functioning of the European Union. This has four
effective in UK courts. main aims: to make the EU more democratic and trans-
In 1986 the Community consisted of 12 Member parent; to make it more efficient; to promote rights,
States, all of whom signed the Single European Act. values, freedom, solidarity and security and to make
This Act, a Treaty rather than a UK Act of Parliament, the EU an actor on the global stage.
was designed to remove all barriers to a single mar- The first of these aims involves increasing the power
ket by 1992. In addition, the Act introduced a system of the European Parliament so that it will be placed on
of qualified majority voting in the European Council, an equal footing with the Commission. As regards most
thereby reducing the power of any single State to block EU legislation, the Parliament and the Commission
developments. The Act also strengthened the powers of will approve legislation using a co-decision procedure.
the European Parliament and created a Court of First A greater role in making EU law will be given to
Instance to work beneath the European Court of Justice. national Parliaments in areas where they can achieve
In 1992 the treaty on the European Union, the better results than the EU. A Citizens’ Initiative will
Maastricht Treaty, was signed by all 15 States which allow 1 million citizens from several Member States
were at that time Member States. The Treaty was more to ask the Commission to introduce new policies. The
of a statement of political intention than a statement relationship between the EU and Member States will
of precise obligations. It proposed cooperation on mat- be clarified, and States which wish to do so will be
ters other than purely economic matters, envisaging allowed to withdraw from the EU.
22  Chapter 1  The legal system

Great efficiency will be achieved by extending quali­ 1.4.1.1 The Council of the European Union
fied-majority voting. From 2014, a qualified majority The Council of the European Union, generally known
is achieved if a dual majority of 55 per cent of Member as the Council, is not a permanent body. It consists at
States, and Member States representing 65 per cent of any given time of one Minister from the Government of
the EU’s population, vote in favour. The EU Commission each Member State, and the President of the European
will be reduced in size and a new President of the Commission. Which Government Ministers will consti-
European Council will be elected by national govern- tute the Council of Ministers depends upon the nature
ments for a period of office lasting two and a half years. of the measures which the Council is considering. For
The European Council will be separate from the Council example, if the measures relate to agriculture then it
of Ministers, the leaders of which will continue to be will be the relevant Ministers of Agriculture. Often
elected on a six-month rotating basis. The European the Council is made up of heads of Government or the
Council will not have legislative powers but will guide Member States’ Foreign Ministers. Up to four times
policy. The promotion of rights, values, freedom, soli- a year the presidents or prime ministers of all of the
darity and security will be achieved by guaranteeing the countries along with the President of the European
principles set out in the Charter of Fundamental Rights, Commission, hold meetings as the ‘European Council’.
and by giving them legal force. This charter set out prin- At these meetings overall EU policy is set and issues
ciples of human rights to be applied throughout the EU which could not be settled at a lower level are settled.
but at present it has no legal force. In addition, the EU The Council passes legislation, co-ordinates EU pol-
will be given a greater role in fighting crime and prevent- icy, concludes international agreements, approves the
ing terrorism. New provisions relating to humani­tarian EU budget and develops the EU Common Foreign and
aid, civil protection and public health will enhance the Security Policy. The Council passes legislation, gener-
EU’s ability to respond to threats to its citizens. The EU ally in conjunction with the European Parliament. It
will be made a stronger actor on the global stage by does this by means of a system of qualified majority
creating a High Representative for Foreign Affairs and voting. However, a Treaty might require unanimity for
Security Policy, and by encouraging the EU to act as a votes on certain matters such as the common and
single legal personality. ­foreign security policy, police and judicial cooperation
The provisions of the Treaty will be introduced in criminal matters, asylum and immigration policy,
gradually, and may take about ten years to become economic and social cohesion policy or taxation. Under
fully adopted. this system each country is allocated a certain ­number
of votes in relation to its population. The United
Kingdom is one of four countries with the maximum
1.4.1 The Institutions of the European
voting weighting of 29 votes. Malta has the f­ewest
Union
votes, with just three. There are 345 votes in total.
The original EEC Treaty set up four principal institu- A qualified majority is reached in two circumstances.
tions, which are now known as: the Council of the First, if 255 (73.9 per cent) votes are in favour; this
European Communities; the European Commission; means that 91 votes can defeat a proposal and so at
the European Parliament and the European Court of least four countries must vote against. Second, if a
Justice. The first three of these are considered imme- simple majority of Member States approve. However,
diately below. The European Court of Justice is con- if a matter which was not based on a proposal from the
sidered below at 1.4.3. In addition, there is a Court of Commission is being voted upon a two-thirds major-
Auditors and two advisory bodies: the Economic and ity of Member States must approve. Additionally, any
Social Committee and the Committee of the Regions. Member State can require confirmation that votes rep-
The Court of Auditors monitors the Community’s resenting at least 62 per cent of the total population of
accounts. The Economic and Social Committee gives the EU were in favour. If it is discovered that this figure
advisory opinions to the institutions. The Committee of was not reached then the proposal voted upon will not
the Regions is a consultative body which promotes the be regarded as having been accepted.
interests of the regions at European level. Both of these Article 11 of the Treaty of Amsterdam gives effect to
Committees have 344 members. Each Member State the Luxembourg Accord and allows any Member State
has 6–24 representatives, depending upon the size of to argue that unanimity, rather than a qualified major-
the State. ity vote, should be required on any particular proposal.
1.4 European Union law  23

When such an argument is raised, the Council will on these matters. It also prepares the draft Community
delay taking a vote in order to enable the dissenting budget.
State to gain the support of other Member States.
However, if it is unsuccessful in this the issues will any- 1.4.1.3 The European Parliament
way be resolved by a qualified majority vote. Members of the European Parliament are elected
Two committees assist the Council. The Committee directly by Member States, using a system of propor-
of Permanent Representatives (COREPER) prepares tional representation. The European Parliament has
the work of the Council and performs other adminis- 736 MEPs, representing the 27 countries in the EU.
trative functions. This committee is comprised of sen- MEPs do not sit in national state blocks but as mem-
ior diplomatic representatives of the Member States. bers of seven groups which represent different politi-
The Economic and Social Committee (ECOSOC) has a cal views. One of the Parliament’s most significant
consultative role. powers is to approve or amend the EU budget. The
Commission prepares a draft budget, which is sub-
1.4.1.2 The European Commission mitted to the Council and then to the Parliament.
Twenty-seven individual commissioners are appointed The Parliament must approve, amend or reject the
by the Member States to serve in a full-time capacity­ budget within 45 days. When the budget is amended
for a term of five years. When these commissioners­ by the Parliament the Council is given 15 days to con-
act collectively they are known as the European sider the amendments. If no challenge is made to the
Commission, which is generally abbreviated to the amendments then the budget is deemed to have been
Commission. Commissioners also have individual accepted as amended. If the Council does challenge
responsibility for a particular matter, such as agricul- the amendments, the budget is resubmitted to the
ture. The Commission is supported by large execu- Parliament. The Parliament then has 15 days to amend
tive and administrative systems. The Commissioners or reject the modifications made by the Council. This
are expected to act completely independently of their must be done by a 60 per cent majority and a majority
Member States but in practice tend to guard the inde- of members must vote. If no such vote is passed, the
pendence of their Member States. They are selected Council’s modifications are adopted as the budget.
on political grounds, and all UK commissioners have The Parliament must approve the Commission
previously played a leading role in UK politics. In when it is first appointed and must also approve the
2014 the number of commissioners will be reduced to new President. It must also approve the accounts
two-thirds of the number of Member States. of the Commission and new appointments to the
The most powerful position in the EU is the Commission. Article 234 TFEU gives the Parliament
President of the Commission. The President is the the power to pass a vote of censure to dismiss the
figurehead of the EU and has a strong political influ- Commission. Such a vote must be passed by a
ence upon it. The Council selects the President and the two-thirds majority. In January 1999 a vote to remove
appointment must then be approved by the European the Commission on account of nepotism and corrup-
Parliament. tion failed: 232 MEPs voted for removal, 293 voted
The Commission is involved in broad policy-­making. against. However, the whole of the Commission
It prepares specific proposals to be submitted to the resigned in March  1999, on publication of a report
Council. It also manages and implements EU policies made by an investigative committee.
and the EU budget, it acts jointly with the Court of Initially the Parliament had few real powers. It had
Justice to enforce EU law and it acts as the EU’s repre- to be consulted about EU legislation but had no ­powers
sentative when dealing with other countries. It is politi­ to block any legislation. The EU Parliament still does
cally accountable to the European Parliament which not have the power to legislate in the way that the
can demand that the whole Commission resigns. UK Parliament has. It passes law by ‘co-decision’ with
Individual commissioners can be forced to resign if the Council. On many matters the Parliament and
the President of the Commission demands this and the the Council have equal standing, but on others the
other commissioners agree. In addition to its major Council has the power to legislate after consulting
roles, the Commission also commissions research the Parliament. The Parliament also has the power
and prepares reports on matters which concern the to ask the Commission to put forward proposals for
Community and negotiates with non-Member States legislation.
24  Chapter 1  The legal system

1.4.2 Sources of Community law criteria as they are merely statements of aspiration.
Some of the Articles are much more significant than
1.4.2.1 Applicability and effect others. Article 157 of the Treaty on the Functioning
In order to understand the effect of EU law it is necess­ of the European Union requires Member States to
ary to understand the distinction between the terms ensure and subsequently maintain the application
‘direct applicability’ and ‘direct effect’. If EU legislation of the principle that men and women should receive
is directly applicable, it automatically forms part of the equal pay for equal work. The effect of this Article has
domestic law of Member States, without those States been highly significant, as we shall see in Chapter 21,
needing to legislate to bring the law in. However, this and has caused the Sex Discrimination Act 1975 to be
would not necessarily mean that individuals could amended to make sure that the Article is not contra-
directly rely upon the legislation in the domestic courts dicted. Although Article 157 is addressed to Member
of their own countries. In order for such reliance to be States, individuals have successfully invoked it against
possible, the legislation would have to be capable of other individuals, usually their employers. Article 157
having direct effect. Where EU legislation has direct therefore has direct horizontal effect.
effect an individual can directly rely upon the legis- Some Treaty Articles, like Article 157, have both
lation, either as a cause of action or as a defence, in direct horizontal and vertical effect, others have only
the domestic courts of his or her country. The Articles direct vertical effect. Whether or not they have direct
of the EC Treaty are always directly applicable, as are horizontal effect will depend upon the wording of
Regulations, but as we have seen this does not necess­ the Article and the interpretation of the Article by the
arily mean that they have direct effect. European Court of Justice (ECJ). For example, Article
No EU legislation can have direct effect unless 34 of the TFEU, which prohibits restrictions on the free
it satisfies the criteria laid down by the European movement of goods, only has direct vertical effect. It can
Court of Justice in Van Gend en Loos v Nederlands therefore only be invoked by an individual against the
Administratie der Belastingen [1963] ECR 1. These State or against an emanation of the State. One private
criteria will be satisfied only if the legislation is suf­ company could not invoke Article 34 against another pri-
ficiently clear, precise and unconditional, and if the vate company which was not an emanation of the State.
legislation intends to confer rights. Many Treaty Articles
do not meet these criteria as they are mere statements 1.4.2.3 Regulations
of aspiration. Even if Community legislation does meet Regulations are binding in their entirety and are
the Van Gend criteria, it may have only direct vertical ­directly applicable in all Member States without any
effect, rather than direct horizontal effect. If it has further implementation by Member States. A regu­
direct vertical effect it can be invoked by an individual lation may specify the date on which it is to come into
only against the State and against emanations of the effect. If it does not do this, it will come into effect
State, such as health authorities. A provision which 20 days after the date of its publication in the Official
has direct horizontal effect can be invoked against Journal of the European Union. Regulations may be
other individuals as well as against the State and ema- directly invoked, sometimes both vertically and hori-
nations of the State. zontally, providing the Van Gend criteria are satisfied.
If an EU law does not have direct effect it might Even if these criteria are not satisfied, a Regulation
nevertheless have indirect effect. An indirectly effec- may have indirect effect. This means that, although an
tive EU law could not be enforced in national courts. individual cannot invoke the Regulation, the courts of
However, these courts would be obliged to inter- Member States are bound to take account of it.
pret their own national law, to the extent that this is
possible, in such a way that it did not conflict with the 1.4.2.4 Directives
indirectly effective EU law. Directives are addressed to the Governments of
Member States and must be published in the Official
1.4.2.2 Treaty Articles Journal of the European Union. Directives are not
The Treaty on the Functioning of the European Union directly applicable. It is therefore left to each individ-
has over 350 articles. These are directly appli­cable. ual Member State to implement the objectives of the
Whether or not a Treaty Article has direct effect Directive in a manner and form that is best suited to
depends first upon whether it satisfies the criteria in its own particular political and economic culture. All
Van Gend. As we have seen, some will not satisfy these Directives are issued with an implementation date and
1.4 European Union law  25

Member States are under a duty to implement by this In situations where it is not possible for the domes-
date. If the Directive is not implemented by the due tic court to give direct or indirect effect to an EU
date, the Commission has the power to take proceed- Directive, the remedy of last resort is for the aggrieved
ings against the Member State in question. individual to sue the Member State for failure to imple-
Before the implementation date has been reached, ment. If found to be in breach, the Member State could
Directives have no effect at all. However, in the be ordered to pay compensation to the aggrieved indi-
Wallonie ASBL case [1997] ECR I-7411, the European vidual. This right was set out in the following case.
Court of Justice held that a Member State should not
enact legislation or implement measures that signifi-
cantly conflict with the objectives of a Directive that Francovich and Bonifaci v Republic of Italy
has yet to meet its implementation date. Generally, the [1993] 2 CMLR 66 (European Court of Justice)
UK Government will implement EU Directives by dele-
gated legislation. Several statutory instruments which Mr Francovich’s employer went into liquidation, while
we consider in this book, such as the Commercial owing money to Mr Francovich and others. A Directive
required Member States to set up compensation
Agents (Council Directive) Regulations 1993, were
funds to deal with this type of situation. However, Italy
enacted to give effect to Directives. (It is slightly con-
had not set up such a fund. The Directive in ques­
fusing that these statutory instruments are usually
tion was not sufficiently precise to have direct effect.
called Regulations, given that EU Regulations are a Mr  Francovich asked for damages against Italy to
quite different matter.) Once an EU Directive has been compensate for its failure to set up a fund.
implemented by UK legislation then, obviously, an
Held. Article 10 impliedly allowed for an individual to
individual can invoke the domestic legislation against be compensated on account of a Directive not hav­
another individual. For example, the Commercial ing been implemented, but only if three conditions
Agents (Council Directive) Regulations 1993 are regu- were satisfied. First, the Directive must relate to rights
larly invoked by individuals against individuals. conferred upon an individual. Second, the contents of
There can, however, be a problem if the UK those rights must be identifiable from the Directive’s
Government either fails to implement a Directive at provisions. Third, a causal link must exist between the
all, or does not implement the Directive properly. Once State’s failure to implement the Directive and the loss
the implementation date has been reached, whether or suffered by the individual.
not the Directive has direct effect depends first upon
whether the Directive satisfies the Van Gend criteria,
and second upon the relationship between the parties In Brasserie du Pêcheur SA v Germany [1996] ECR
involved. Where the parties to a legal action are in a I–1029 the ECJ refined the Francovich criteria in the
vertical relationship (for example, patient and health following way. First, the rule of law in question must
authority), the Directive is capable of having direct confer rights upon individuals. Second, the breach
effect. Where the parties are in a horizontal relationship must be sufficiently serious. Third, there must be a
(for example, a consumer suing a shop), the Directive direct causal link between the breach and the dam-
does not have direct effect. In other words, Directives age. That the breach should have been sufficiently
which should have been implemented are capable of serious, means that the Member State must have
having direct vertical effect, but not direct horizontal ‘manifestly and gravely’ disregarded the limits on its
effect. (This can mean that a person employed by an discretion. In deciding whether or not this had hap-
emanation of the State, such as a worker in the NHS, pened, account will be taken of the following matters:
might have more rights against his employer than a per- the clarity of the legislation in question; whether the
son employed by a person who is not an emanation of rule in question allowed any measure of discretion;
the State.) However, when dealing with a case between whether the failure to implement and the damage
two individuals the domestic courts are under a duty, caused were deliberate; whether the error had been
by virtue of Article 10 of the EC Treaty, to attempt as induced by the acts or words of the Council or the
far as possible to give indirect effect to the EU Directive Commission; whether the error was contrary to settled
which should have been implemented. This means ECJ case law; and the speed with which the error was
that they have to try, as far as possible, to interpret the corrected.
domestic legislation so as to give effect indirectly to the The legal effect of the Treaties, Regulations and
objectives of the Directive. Directives is shown in Figure 1.1.
26  Chapter 1  The legal system

Treaty Articles Regulations Directives

Directly applicable once the Directly applicable. (Therefore Not directly applicable.
treaty is ratified. (Therefore automatically forms part of the (Therefore not
automatically forms part of law of Member States.) automatically part of the
the law of Member States.) law of Member States.)

Is the Treaty Article sufficiently Is the Regulation sufficiently Must be implemented by a


clear, precise and clear, precise and certain date.
unconditional as to satisfy unconditional as to satisfy
the Van Gend criteria? the Van Gend criteria?

If properly If not properly


implemented. implemented.
Yes No Yes No

Article has Article may Has both Has no direct The implementing Is the
direct vertical have indirect direct vertical effect. It may legislation can be Directive
effect. It may effect. and have indirect relied upon like sufficiently
also have horizontal effect. any other clear, precise
direct effect. legislation. and
horizontal unconditional
effect, to satisfy the
depending Van Gend
upon its criteria?
wording and
interpretation
by the ECJ. Yes
No

Has direct
vertical effect,
but not direct Has no direct
horizontal effect. effect.

Domestic courts are under


a duty as far as possible
to try to give indirect
horizontal effect to
the Directive.

If this is not possible,


the aggrieved party may
be able to make a
Francovich type of claim.

Figure 1.1 The legal effect of Treaty Articles, Regulations and Directives


1.4 European Union law  27

1.4.2.5 Decisions The parties cannot comment on this and the judges
Decisions are addressed to one or more Member States, deliberate upon it in secret. The Court has no obliga-
to individuals, to categories of individuals or to insti­ tion to agree with the advocate-general’s recommen-
tutions. They are binding in their entirety, without the dation but generally do so.
need for implementation by Member States, but only When ready to vote the most junior judges vote first
on those to whom they were addressed. They do not and then the other judges vote in order of reverse sen-
need to be published in the Official Journal. Decisions iority. The court does not use a system of precedent. It
can only be invoked against the person to whom they can and does depart from its own previous decisions.
are addressed. In practice, decisions are of little practi- Certain matters may be referred to the Court of First
cal importance. Instance rather than to the European Court of Justice.
This Court of First Instance operates in a very similar
1.4.2.6 Recommendations and opinions way to the way in which the ECJ operates. There is an
The Commission has the power to make recommen­ automatic right of appeal on a point of law, but not on a
dations and opinions. These have no binding legal point of fact, from the Court of First Instance to the ECJ.
force. However, where a Member State passes legisla-
tion to comply with a decision or an opinion a national 1.4.3.1 Jurisdiction of the ECJ
court may refer a case to the ECJ to see whether or not Apart from hearing appeals from the Court of
the decision or opinion applies and how it should be First Instance, the ECJ has three separate heads of
interpreted. jurisdiction.
First, it can express an authoritative opinion on EU
law, if requested to do so by a national court. Once
1.4.3 The European Court of Justice
the ruling has been made by the ECJ the case returns
The European Court of Justice (ECJ), which sits in to the court which asked for the ruling so that that
Luxembourg, is made up of 27 judges, one from each court can apply the ruling. Article 267 TFEU allows
Member State. These judges are assisted by eight advo- a national court to request an authoritative ruling as
cates-general. The judges and advocates are appointed to three types of matters: the interpretation of the
by common consent of the Member States and hold EU legislation; the validity and interpretation of acts
office for a six-year term which may be renewed. of institutions of the Community and the interpre­
The decisions of the court are signed by all the tation of statutes of bodies established by an act of the
judges, without any indication that some may have Council, where those statutes so provide. Any national
dissented. Eighty per cent of cases are referred to court or tribunal may refer a matter within Article
one of the six Chambers where either three or five 267 to the ECJ if it thinks this necessary to give judg-
judges sit. The Grand Chamber of the court consists ment. Most of the ECJ’s work involves preliminary rul-
of thirteen judges, and disputes involving Member ings. In Chapter 20 we shall consider several cases in
States tend to be heard by a Grand Chamber. The which a national court sought a preliminary ruling as
number of judges sitting is always odd, so that a to the interpretation of EU legislation from the ECJ.
majority decision can always be reached. The more The ruling is sought by the court, not by the parties to
important the issues thought to be involved, the the case. Although a national court has a discretion to
greater the number of judges sitting. The judg- seek a preliminary ruling, a court of final appeal has
ments of the court are available free on its website, an obligation to do so where a relevant point of EU law
but cases typically take 18–24 months to be heard. is at issue and where there has been no previous inter-
The advocates-general must act with complete pretation of the point by the ECJ. However, there is no
impartiality and independence, in open court, mak- such obligation where the point is so obvious as not to
ing reasoned submissions on cases brought before require a ruling.
the Court. They do not therefore argue the case for The second area of jurisdiction arises under
either of the sides involved. Each case has an advo- Articles 263 and 264 TFEU, which allows the ECJ to
cate-general assigned to it. The advocate-general review the  legality of acts adopted by the European
makes a summary of the facts, an analysis of all Parliament or other Community institutions. The
the relevant Community law and a recommenda- ECJ can also review a community institution’s failure
tion as to what the decision of the court should be. to act. This  review process is similar to the process
28  Chapter 1  The legal system

of judicial review whereby the High Court ensures Whilst the United Kingdom remains a member
that the Government and others do not exceed their of the EU it is therefore arguable that it has sur-
powers. rendered Parliamentary sovereignty. However, two
The third area of jurisdiction arises under Article points should be noted. First, other Treaties such
258, which allows the Commission to bring actions as those which provided that the United States had
against Member States to make sure that they ful- direct command over US soldiers based in the United
fil their Community obligations. Article 259 allows Kingdom, have at some time or other meant that the
Member States to take other Member States to the ECJ United Kingdom did not have true Parliamentary
for failure to live up to their Treaty obligations. sovereignty. Second, the UK Parliament could vote
to repeal the European Communites Act 1972 and
leave the EU. Until recently this seemed very unlikely.
1.4.4 Supremacy of EU law
However, the Conservative Government elected in
EU law can only be effective if it overrides national 2015 is firmly committed to holding a referendum on
law. If every Member State were free to pass legislation the UK’s continued membership of the EU before the
which conflicted with EU legislation, the EU would be end of 2017.
rendered ineffective. In Costa v ENEL [1964] ECR 585
the ECJ stated that the EEC Treaty had become an inte-
gral part of the legal systems of Member States and that
the courts of Member States were bound to apply the Test your understanding 1.4
Treaty. It also stated that Member States had, by sign- 1 What is the role of the Council of the European
ing the Treaty, limited their sovereign rights, within Communities?
limited areas, and created a body of law which bound 2 What is the role of the European Commission?
both their citizens and themselves. The case specifically
3 What is the role of the European Parliament?
decided that Italian legislation which was incompatible
4 What is meant by EU legislation being directly
with Community law, and which had been passed after
applicable?
Italy had signed the Treaty, could have no effect.
5 What is meant by EU legislation having direct
In R v Secretary of State for Transport, ex parte
effect?
Factortame (No. 2) [1991] 1 AC 603, Spanish com­
panies sought judicial review of the Merchant Shipping 6 What is the difference between direct vertical
effect and direct horizontal effect?
Act 1988, which they claimed breached two Articles of
the EC Treaty. The companies asked for an injunction to 7 Are Articles of the EC Treaty and Regulations
suspend that part of the Act which was in breach of the directly applicable? Do they have direct effect?
relevant Treaty Article. The House of Lords held that 8 What is the legal effect of a Directive both before
injunctions could not be effective against the Crown and after implementation?
and refused to grant the injunction. However, the case 9 Can an individual sue a Member State on
was referred to the ECJ, under what is now Article 267 account of a Directive not having been correctly
TFEU, which held that UK limitations on the availabil- implemented?
ity of remedies should be overruled and that the injunc- 10 What is the jurisdiction of the European Court of
tions should be available. Subsequently, the House Justice?
of Lords immediately suspended the oper­ation of the
offending part of the Act. A few years after Factortame
in Equal Opportunities Commission v Secretary of
1.5 The European Convention
State for Employment [1994] 1 All ER 110, the House
of Lords suspended the operation of a section of the
on Human Rights
governing employment legislation on the grounds
1.5.1 The Human Rights Act 1998
that it was in breach of the EU Equal Treatment legis-
lation. However, it should be noted that this power of The Human Rights Act 1998 came into effect in
UK courts to suspend conflicting domestic legislation October  2000. This Act incorporates the main pro­
will only be used sparingly in cases involving serious visions of the European Convention on Human Rights
breaches of directly effective EU legislation. into UK law. However, the implementation is not
1.5 The European Convention on Human Rights  29

complete because Parliamentary sovereignty is pre- to be declared ultra vires the Parent Act (see 1.3.1.3,
served. Section 2(1) of the Act states that a court or tri- above).
bunal which is determining a question that has arisen Since the Act came into effect, positive consider­
in connection with a Convention right must take into ation must be given as to whether new legislation is
account both the Convention and decisions of insti­ compatible with the Convention. Before the Second
tutions of the Convention, such as the Court of Human Reading of a Bill in Parliament the relevant Minister
Rights. will have to make a written statement to Parliament,
Section  3(1) of the Act requires that, so far as it either stating compatibility with the Convention or
is possible to do so, all legislation must be read and stating incompatibility. If stating incompatibility, the
given effect in a way which is compatible with the Minister will need to state the Government’s inten-
Convention rights. This can be regarded as a new rule tion to proceed with the legislation anyway. The
of statutory interpretation and it is not to be restricted Minister does not need to state the way in which the
to statutory provisions which are ambiguous. Section 4 legislation is incompatible. Obviously, stating incom-
allows any precedent-making courts (the High Court, patibility might lead to political difficulties. Since
Court of Appeal and Supreme Court) to make a dec- the Human Rights act came into force there have
laration of incompatibility in any legal proceedings been 29 declarations of incompatibility, 20 of which
in which a court determines whether or not UK legis­ have become final.
lation is compatible with a Convention right. This is a Section  6(1) provides that it is unlawful for a
last resort and is not an alternative to trying to inter- public authority to act in a way which is incompat-
pret the legislation in such a way that it is compatible ible with a Convention right. However, this is not
with the Convention. Such a declaration of incompati­ the case if the public authority could not have acted
bility does not affect the validity of the legislation in differently as a result of primary UK legis­lation.
question, and is not binding on the parties to the liti­ Section  6(1) will have a considerable impact on
gation. However, where a declaration of incompat- many UK businesses, because s.6(3) defines a public
ibility is made, the relevant Minister has the option to authority as including not only a court or a tribunal,
revoke the offending legislation, or amend it so that it but also any person certain of whose functions are
is no longer incompatible. functions of a public nature. Therefore, businesses
Section  10 gives the Minister power to do this such as private nursing homes, private schools, secur­
by remedial order so as to achieve the change by a ity firms and housing associations are subject to the
‘fast-track’ procedure. However, the Minister will effect of s.6(1).
revoke or amend the legislation only if he considers Earlier in this chapter, at 1.3.2.2, Kay and others v
that there are compelling reasons for doing either of Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465 was
these things. As the Minister can leave the incompat- considered. In this case Lord Bingham thoroughly
ible legislation in place, Parliamentary sovereignty is reviewed how the HRA 1998 affected the doctrine
preserved. The relevant Minister has the same power of judicial precedent. Section 7 creates a new public
to revoke, amend or leave primary legislation in place tort which allows individuals to bring legal proceed-
following an adverse ruling from the European Court ings against public authorities breaching Convention
of Human Rights. Primary legislation includes Acts of rights. It is only the ‘victim’ of a breach of Convention
Parliament and certain Orders in Council. Secondary rights who has the standing to bring proceedings
legislation includes all delegated legislation other under s.7. Where proceedings are brought a court
than certain Orders in Council. If secondary legis­ may order such remedies as it considers just and
lation is found to be incompatible with Convention appropriate.
rights, any domestic court can declare the legislation Section  13(1) provides that if a court’s determi-
invalid, unless the Parent Act provides that the sec- nation of any question arising under the Act might
ondary legislation is to prevail even if it is incompat- affect the exercise by a religious organisation of
ible. If the Parent Act does not allow the legislation the Convention right to freedom of thought, con-
to be declared invalid, a precedent-making court has science and religion, it must have particular regard to
the power to make a declaration of incompati­bility. the importance of that right.
The process of judicial review (see Chapter 2 at 2.6.1) An outline of the effect of the Human Rights Act can
can also cause secondary legislation which is invalid be seen in Figure 1.2.
30 
Section 2 Section 3 Section 19 Section 6

Chapter 1  The legal system


UK courts and tribunals As far as possible, all UK At the second reading of a Bill Public bodies (widely
must take into account legislation must be the Minister must state defined) may not act in
judgments, decisions interpreted in a way compatibility or incompatibility a way which is
etc. of the European which is compatible with with the Convention. incompatible with a
Court of Human Rights. Convention rights. Convention right.

If the Minister states


However, they are not What if UK legislation is incompatibility, there is no This is not the case if
bound to follow such not compatible? need to state how the Bill the public body could
judgments etc. is incompatible and no not have acted
need to amend the Bill. differently on account of
primary UK legislation.
With regard to With regard to primary
secondary legislation legislation, any
precedent-making court
can make a declaration
of incompatibility.

Does the Parent Act


state that the secondary
legislation is to prevail
even if incompatible with The relevant Minister
Convention rights? has the option to amend
No the incompatible
legislation under
s 10.

Yes
Any court may declare
the legislation invalid.

Precedent-making court
can make declaration of
incompatibility.

Figure 1.2 The effect of the Human Rights Act 1998


1.5 The European Convention on Human Rights  31

1.5.2 The European Convention on Human the minimum rights of those charged with a criminal
Rights offence. These include: prompt information as to the
details of the charge; adequate time and facilities to
We have seen that the Human Rights Act incorporates
prepare a defence; the right to choose a lawyer and to
the main provisions of the European Convention on
be given free legal assistance if the interests of justice
Human Rights into UK law. It is therefore necessary
demand this; to have the same rights to require wit-
to consider the effect of the Convention. The Articles
nesses to attend as is enjoyed by the prosecution; to
are set out below, but Articles 1 and 13 have not been
have the prosecution witnesses cross-examined and
incorporated into UK law.
to have the free assistance of an interpreter if one is
Article 2 provides that everyone’s right to life shall
needed.
be preserved by law, except in carrying out a death
Article 7 provides that no one should be guilty of a
sentence properly passed by a court.
criminal offence which did not exist at the time when
Article 3 provides that no one shall be subjected to
the act was committed, unless the act was criminal
torture or to inhumane or degrading treatment or pun-
according to the general principles of law recognised
ishment. In Ireland v UK (1978) 2 EHRR 25 the Court
by civilised nations.
of Human Rights found that the UK’s interrogation
Article 8(1) provides that everyone has the right to
of suspected terrorists was inhumane and degrading,
respect for his private and family life, his home and his
although it fell short of being torture. In D v UK (1997)
correspondence. However, Article 8(2) provides that
24 EHRR 423 it was held that deporting a person with
public authorities may interfere with this right on the
Aids to a country where there would be no treatment
following grounds: in the interests of national security,
and where he would be destitute breached Article 3. In
public safety or the economic well-being of the country;
Tyrer v UK (1978) 2 EHRR 1 it was held that birching
for the prevention of disorder or crime; for the pro-
on the Isle of Man breached Article 3.
tection of health or morals; or for the protection of the
Article 4 provides that no one should be held in
rights and freedoms of others.
slavery or servitude or be required to perform forced or
Article 9 gives the right to freedom of thought, con-
compulsory labour. There are exceptions for ­prisoners,
science and religion. However, this right is balanced
the military, for work done as part of normal civic obli-
against the rights of others to free expression, which
gation, or service required in the case of an emergency
includes criticism of religious beliefs and practices.
or calamity threatening the life or well-being of the
Article 10(1) gives a right to freedom of expression.
community.
This does not prevent the State from requiring broad-
Article 5(1) provides that everyone has the right to
casters to hold licences, but does insist upon freedom to
liberty and security of person. No one is to be deprived
hold opinions, and to receive and impart information
of their liberty except in the following circumstances:
and ideas without interference by public authority.
after conviction by a court; upon arrest; to prevent
Article 10(2) provides that the freedoms set out in
the spread of infectious diseases; in order to treat the
Article 10(1) carry duties and responsibilities and
mentally ill; or in the case of alcoholics, drug addicts
therefore may be subject to formalities, conditions,
or vagrants. Article 5(2) gives anyone arrested the
restrictions or penalties as are prescribed by law and
right to be informed promptly, in a language which
as are necessary in a democratic society for the follow-
he understands, of the reason for the arrest and the
ing reasons: to secure the interests of national security,
charges against him. Article 5(3) requires that those
territorial integrity or public safety; to prevent disorder
arrested are brought promptly before a judge. If any-
or crime; to protect public health or morals; to protect
one is arrested in contravention of Article 5 he is given
the reputation or rights of others; to prevent the dis-
an enforceable right to compensation.
closure of confidential information; or to maintain the
Article 6(1) guarantees the right to a fair trial. The
authority and impartiality of the judiciary.
trial must be a public hearing within a reasonable time
Article 11 gives the right to freedom of peaceful
of arrest by an independent and impartial tribunal
assembly and to freedom of association with others,
established by law. Judgment has to be pronounced
including the right to form and join a trade union.
publicly. Article 6(2) holds that everyone charged
This right does not apply to the armed forces or the
with a criminal offence is presumed innocent until
police. Restrictions are also allowed in the interests of
found guilty according to the law. Article 6(3) sets out
national security or public safety, to prevent disorder
32  Chapter 1  The legal system

or crime, to protect health or morals, or for the protec- is the supreme court of the European Community
tion of the rights and freedoms of others. and its decisions are binding upon the Member States
Article 12 gives members of the opposite sex the of the European Community. The European Court of
right to marry and form a family if they are of mar- Human Rights hears cases concerning breach of the
riageable age. Convention on Human Rights. Forty States have signed
Article 14 provides that the rights set out in the the Convention and although this includes all of the
Convention shall be secured without discrimination Member States of the European Union, it also obvi-
on any ground. This Article cannot be invoked on its ously includes other States which are not EU members.
own. The discrimination in question must have taken There are 47 judges in the plenary Court of Human
place in relation to a different Convention right. Rights. One judge represents each signatory State.
Article 15 allows derogation from the Convention The plenary court sets up Chambers to hear com-
in time of war. plaints against States. These Chambers are made
Article 16 provides that Articles 10, 11 and 14 do not up of seven judges, the President of the Chamber, a
prevent restrictions on the political activities of aliens. judge from the country against which the complaint
Article 17 provides that nothing in the Convention is being made and five other judges. Each Chamber
allows a person the right to do anything which would sets up Committees of three judges to consider appli­
deny other rights under the Convention, except to the cations and to dismiss as early as possible those which
extent that this is provided for in the Convention. So are unfounded. Manifestly inadmissible applications
racist groups could not use the right to freedom of can be dismissed by a single judge. An individual with
expression to attack other rights such as freedom of a complaint applies to a judge, known as a rappor-
religion. teur, who passes the complaint on to a Committee or
Two Protocols, the First and the Thirteenth, have Chambers. Particularly difficult cases can be passed on
also been incorporated into UK law by the Human to a Grand Chamber of 17 judges. The Grand Chamber
Rights Act 1998. also acts as an appeal court. Judges hold office for
The First Protocol, Article 1 provides that every natu­ six years, with half being replaced every three years.
ral or legal person is entitled to peaceful enjoyment Applicants do not need to be legally represented but
of his possessions. Nobody should be deprived of his usually are. All hearings are held in public and are put
possessions except in the public interest and subject to on the court’s website on the same day. The deliber­
provisions provided for by law. ations of the judges are, however, secret.
The First Protocol, Article 2 provides that no one Article 35 of the Convention provides that an appli-
should be denied the right to education. cant to the court must prove:
The First Protocol, Article 3 provides that States
(a) that the complaint involves a breach of the
must agree to conduct free elections at regular inter-
Convention by a country which has ratified it;
vals by secret ballot so as to allow the people to choose
(b) that the breach occurred within the jurisdiction of
freely the legislature.
that country;
The Thirteenth Protocol outlaws the death penalty
(c) that all domestic remedies have been exhausted
in all circumstances.
and that the application to the Court has been
The UK has been allowed one derogation from the
made within six months of these remedies having
Convention under Article 15(3) with regard to Article
been exhausted (it is possible, however, for the
5 of the Convention. This allows the authorities to
Court to proceed on the basis that domestic rem-
detain anyone suspected of terrorist offences in line
edies are deemed to be exhausted on account of
with the provisions of the Prevention of Terrorism
their being unsatisfactory).
(Temporary Provisions) Act 1989.
It can be seen that the European Court of Human
Rights is very much a court of last resort. A person
1.5.3 The European Court of Human
who thinks that his human rights have been abused
Rights
will generally seek a remedy through the process of
It is important to realise that this court, which sits judicial review, which is explained in Chapter  2 at
in Strasbourg, is quite separate from the European 2.6.1. The decisions of the Court are delivered in open
Court of Justice, which sits in Luxembourg. The ECJ court. Although the decision is binding on the State to
1.5 The European Convention on Human Rights  33

which it is addressed, the Court cannot enforce it. If a ignored the fact that the trade-off between individual
violation is found the procedure is to send details to rights and effective government, and between the rights
the Committee of Ministers of the Council of Europe, of one individual and another, would vary from country
which confers with the State in violation to see how to country depending upon local circumstances and
the judgment should be executed and future violations legal tradition. The European Court of Human Rights
prevented. The Court can also, however, order ‘just does have a ‘margin of appreciation’ under which
satisfaction’, which could order the payment of com- Member States are given some latitude in applying the
pensation and costs. In McCann v UK (1995) 21 EHRR same abstract rights. However, Lord Hoffmann thought
97, which involved IRA members being shot dead by that the Court had not taken this nearly far enough. He
the SAS in Gibraltar, the United Kingdom was ordered accused the Court of considering itself to be the equiv­
to pay the legal costs of the relatives of the dead IRA alent of the Supreme Court of the United States, ‘laying
men. These costs amounted to £38 000. down a federal law for Europe’. He thought that the
The Court does not use a system of precedent. It Court did not enjoy the legitimacy which the Supreme
does, however, adhere to a doctrine of proportionality, Court enjoyed. This lack of legitimacy was caused not
meaning that every formality, condition, restriction or only by the Court exceeding its mandate but also by the
penalty must be proportionate to the end which is try- quality of the judges. Each of the 47 countries contrib-
ing to be achieved. In interpreting the law the Court utes one judge. So the four smallest Member States,
adopts a broad, purposive approach rather than a with a combined population of less than Islington,
technical ‘letter of the law’ approach. contribute four judges. Russia, with a population of
In 2006 the European Court of Human Rights 140 million, contributes only one judge. Lord Hoffmann
awarded £3 350 damages and £1 340 costs to George also accused the European Court of Human Rights
Blake, the traitor who escaped from the United of introducing new concepts, such as environmental
Kingdom to the Soviet Union, over the distress and protection, into the European Convention on Human
frustration to him caused by the length of time the Rights when the treaty had not mentioned them. In a
Government took in its legal action to prevent him final criticism, he noted that the Court had a backlog of
benefiting from his autobiography. (The case itself is 100 000 applications, which would take over four years
considered in Chapter 7 at 7.2.7.1.) The legal action to clear. In 2008, 95 per cent of applications had been
took more than nine years to resolve. Part of this declared inadmissible but there was no summary mech-
delay was the fault of Blake. However, the appeal to anism for weeding out the hopeless cases.
the Court of Appeal took 17 months and the appeal In R v Horncastle and others [2009] UKSC 14,
from there to the House of Lords took 31  months. [2010] 2 WLR 47 four men who had been convicted
These delays breached Blake’s right to a fair trial. The of serious offences by the Court of Appeal made an
European Court of Human Rights took five years and appeal to the Supreme Court, alleging that they had
eight months to decide the case. not received a fair trial as required by Article 6 of the
Convention. Two of the men were convicted of griev-
ous bodily harm. Their victim had died of another
1.5.4 The impact of the Human Rights Act
cause by the time of the trial and the men were con-
In March 2009 Lord Hoffmann, the second most senior victed ‘to a decisive degree’ upon a statement of the
Law Lord, delivered the Judicial Studies Board Annual victim which was read at the trial. The two other men
Lecture, in which he was highly critical of the European had been convicted of kidnapping. This conviction
Court of Human Rights. In criticising the Court, Lord had been secured ‘to a decisive extent’ by a written
Hoffmann made it clear that he has no problem with statement of the victim, who had been so frightened
either the European Convention on Human Rights or that she had run away the day before the trial. Both
with the Human Rights Act 1998. Unlike the European statements were admissible as evidence under the
Court of Justice in Luxembourg, the European Court of Criminal Justice Act 2003. In January 2009 a decision
Human Rights in Strasbourg had no mandate to attempt of one of the Chambers of the The European Court of
to unify the laws of Europe. However, Lord Hoffmann Human Rights, Al-Khawaja and Tahery v UK (2009)
said that the Court ‘had been unable to resist the temp- 49 EHRR 1, held that Article 6 had been breached
tation to aggrandise its jurisdiction and to impose uni- because statements of a witness who was not present
form rules on Member States’. In doing so, the Court at the trial had been ‘the sole or, at least, the decisive
34 Chapter 1 The legal system

basis’ of their conviction. The Supreme Court held is closed.’ Lord Hope agreed with this point of view
that the defendants in Horncastle had received a fair as SSHD v AF was not only a decision of the Grand
trial. Even before the Convention had come into force Chamber but was much more clearly reasoned than
the rule against ‘hearsay’ evidence had ensured that the Chamber’s ruling in Al-Khawaja.
defendants received a fair trial in the way that Article In May  2013 Theresa May, the Home Secretary,
6 was designed to ensure. Furthermore, application of announced that the Conservatives could consider
the ‘sole or decisive rule’ would cause practical diffi- withdrawing from the Convention if they won the
culties if applied in England and Al-Khawaja did not 2015 election, and that the party would repeal the
establish that it was necessary to apply the rule. Lord Human Rights Act. Critics have argued that this would
Phillips, who gave a judgment with which the other be politically disastrous. They have also argued that if
six Supreme Court Justices all agreed, said, the UK withdrew from the Convention it would also
have to withdraw from the Council of Europe, which
‘The requirement to “take into account” the Strasbourg
administers the Convention, and that this might
jurisprudence will normally result in this Court
mean having to leave the EU as no State had become
applying principles that are clearly established by
the Strasbourg Court. There will, however, be rare oc- a member of the EU without first joining the Council.
casions where this Court has concerns as to wheth- Although the Conservatives did form a majority gov-
er a decision of the Strasbourg Court sufficiently ernment, at present it looks unlikely that the UK will
appreciates or accommodates particular aspects of withdraw from the Convention. However, it does look
our domestic process. In such circumstances it is open much more likely than it did a few years ago.
to this Court to decline to follow the Strasbourg de-
cision, giving reasons for adopting this course. This is
likely to give the Strasbourg Court the opportunity to
reconsider the particular aspect of the decision that Test your understanding 1.5
is in issue, so that there takes place what may prove
to be a valuable dialogue between this Court and the 1 Which courts have the power to make a
Strasbourg Court. This is such a case.’ declaration of incompatibility? What is the effect
of such a declaration?
Lord Brown distinguished Secretary of State for the 2 Can new UK legislation be passed by Parliament
Home Department v AF (No.3) [2009] UKHL 28, if it is incompatible with the Convention?
[2009] 3 WLR 74. In that case the House of Lords had 3 What is the position of public authorities under
felt that it had no alternative but to apply a defini- the Human Rights Act?
tive judgment of the Grand Chamber, A v UK (2009)
4 In what circumstances can an individual bring a
49 EHRR 29, on the very point at issue. In SSHD v AF case before the Court of Human Rights?
Lord Rogers had said, ‘Strasbourg has spoken, the case

Key points

general matters ■ Law which originated in the King’s or Queen’s


■ Many of the features of the English legal system courts is known as common law and is contrasted
have their roots in mediaeval England. with law which originated in the courts of equity,
■ English law has not been codified to a great which is known as equity.
extent. ■ Any court can now apply both common law and
■ The English system of trial is adversarial. The equitable principles.
lawyers representing one party try to prove the ■ The criminal law is designed to punish wrong-
case. The lawyers representing the other party use doers who have broken the criminal law. The civil
whatever means permissible to prevent the case law is designed to compensate those who have been
from being proved. caused loss or injury by the wrongdoing of another.

Key points 35

■ In criminal cases the prosecution must prove the words must be interpreted as having the same type
accused’s guilt beyond reasonable doubt. In civil of meaning as the specific words.
cases the claimant must prove his case on a balance ■ The rule expressio unius est exclusio alterius
of probabilities. means that where a statute lists specific words
■ It can be important to distinguish between which are not followed by any general words then
law and fact for three reasons: only statements of the statute applies only to the words listed.
law can become precedents; an appeal may only ■ In the very limited circumstances set out in
be possible against a question of law, or may be Pepper v Hart a court may consider Parliamentary
required to be made to a different court depending material when interpreting a statute.
upon whether the appeal is against a finding of law
or fact; and, in Crown Court trials the judge decides Judicial precedent
the law but the jury decide the facts. ■ The doctrine of judicial precedent holds that the
decisions of higher-ranking courts are binding upon
legislation lower-ranking courts.
■ Bills are introduced into Parliament by the ■ The courts are arranged in an hierarchical struc-
Government. (A very small number of Bills are ture. The decisions of the Supreme Court (formerly
introduced by individual MPs.) House of Lords) bind all inferior courts. Decisions
■ To become a statute, a Bill must pass through of the Court of Appeal bind all inferior courts and,
both Houses of Parliament and gain the Royal almost always, future sittings of the Court of Appeal.
Assent. A Bill which does not pass through the Decisions of the Divisional Court of the High Court
House of Lords can be enacted without approval of bind other High Court judges sitting alone and all
the House of Lords after a delay of one year. inferior courts. They also generally bind future
■ A codifying Act reduces the existing law to sittings of the Divisional Court. Decisions of High
one comprehensive statute. A consolidating Act Court judges sitting alone bind inferior courts but
re-enacts as one Act several pieces of legislation do not bind other High Court judges.
which concern the same subject. An amending Act ■ The binding element in a case is the ratio deci-
alters some of the sections of an existing Act. dendi, which might be defined as any statement of
■ Delegated legislation is passed other than as law which the judge applied to the facts of the case
a statute. Once passed it has the same effect as a and upon which the decision in the case is based.
statute. Statutory instruments are introduced by ■ Statements of law made by a judge which are not
Government Ministers upon whom power has been part of the ratio decidendi are known as obiter dicta.
conferred by an enabling Act. Orders in Council These are of persuasive authority only.
are introduced by the Privy Council. Bye-laws are ■ A statute or a higher court may overrule a decision,
passed by local authorities. in which case the overruled decision ceases to operate
■ The literal rule of statutory interpretation as a precedent.
requires that unambiguous words in a statute are ■ A decision is reversed when an appellate court
given their ordinary, literal meaning. allows an appeal. No rule of law is necessarily changed.
■ The golden rule allows the court to avoid giving ■ A judge can refuse to follow a precedent by dis-
the words in a statute a meaning which is mani- tinguishing it, that is by saying that the facts of the
festly absurd. It also allows a court to prefer the case in front of him are materially different from
less absurd or undesirable interpretation when the the facts of the case which created the precedent.
words of a statute are ambiguous.
■ The mischief rule allows a court to be guided The European union
by consideration of the problem which the statute ■ The United Kingdom became a member of the
sought to rectify. EU in 1973. The European Communities Act 1972
■ The ejusdem generis rule is that where general provided that Community law should be directly
words in a statute follow specific words the general applicable in the UK courts.

36 Chapter 1 The legal system

■ The Council of the European Communities is the court must take into account any decisions of the
main policy-making body of the EU. Membership European Court of Human Rights.
of the Council varies, being made up of relevant ■ As far as it is possible to do so, UK legislation
Ministers of the Member States. must be read and given effect in a way which is
■ Each Member State has one Commissioner and compatible with the Convention rights.
some of the larger States have two. (However, ■ A precedent-making court can make a decla-
after the Treaty of Nice is fully effective, each ration that UK legislation is incompatible with a
Member State will have a maximum of one.) The Convention right. The relevant Minister would
Commission makes broad EU policy and drafts then have to consider amending or revoking the UK
secondary legislation. It also ensures that Member legislation, but would have the power to leave the
States adhere to the Treaties. legislation in place.
■ The European Parliament does not pass legis- ■ New legislation requires positive consideration
lation. It has a consultative role which is becoming by the relevant Minister as to whether or not it is
increasingly powerful. compatible with the Convention. However, the
■ Treaty Articles and EU Regulations are directly Government may still introduce legislation which is
applicable. This means that they automatically incompatible with the Convention.
form part of the domestic law of Member States. ■ A public authority may not act in a way which
■ EU legislation can only be relied upon by an is incompatible with a Convention right. However,
individual in a legal action if it has direct effect. this is not the case if the public authority could
It will only have direct effect if it satisfies the Van not have acted differently on account of UK legis-
Gend criteria of being sufficiently clear, precise and lation. Individuals are given the power to sue public
unconditional. authorities which breach this duty.
■ EU legislation which has only direct vertical ■ The major rights set out in the Convention are:
effect may only be invoked by an individual against the right to have one’s life preserved by law; the
the State or against an emanation of the State. right not to be subject to torture or inhumane or
Legislation which has direct horizontal effect may degrading punishment; the right not to be held in
be invoked by one individual against another. slavery or servitude or required to perform forced
■ Before their implementation date, Directives or compulsory labour; the right to liberty and secur-
have no effect (subject to the Wallonie principle). ity of the person; the right to a fair trial; the right
After their implementation date they can have not to be made retrospectively guilty of a criminal
direct vertical affect but not direct horizontal effect. offence; the right to respect for private and family
This is only likely to be of importance where they life; the right to freedom of thought, conscience
are not properly implemented by UK legislation. and religion; the rights to freedom of assembly and
■ The European Court of Justice expresses authori- freedom of association with others and the right to
tative opinions on EU law when requested to do so marry a member of the opposite sex.
by the national courts of Member States. ■ An individual can only bring a case before the
Court of Human Rights after all domestic remedies
The human Rights Act 1998 have been exhausted.
■ The United Kingdom signed the European ■ Protocols have added that every natural or legal
Convention on Human Rights in 1951. person is entitled to peaceful enjoyment of his pos-
■ The Human Rights Act 1998 incorporates sessions, that no one should be denied the right to
the Convention into UK law, but preserves education, that States must agree to conduct free
Parliamentary sovereignty. elections at regular intervals by secret ballot so as
■ When determining a question which has arisen to allow the people to choose freely the legislature
in connection with a Convention right, a UK and that the death penalty is outlawed.

Multiple choice questions 37

Summary questions

1 Explain the process by which a statute is enacted. 5 Explain the difference between EU law being
2 Using print or online sources, find a recent statute, directly applicable and its being directly effective.
a recent statutory instrument and a recent rule of law 6 Explain the impact of the Human Rights Act
made by a court. In each case, outline the process by 1998 on UK law. Find a case concerning the Act
which the law in question was made. either using print or online sources. Which Articles
3 Explain the three main rules of statutory of the Convention did the case concern? Describe
interpretation. the outcome of the case or, if it has not yet been
decided, state what you think the outcome of the
4 Outline the way in which the system of precedent
case might be.
operates. Do you think that the advantages of the
system outweigh the disadvantages?

Multiple choice questions

1 Which one of the following statements is not true? d Circuit judges do not make precedents.
a Principles of law may still be classified as e A court which distinguishes a case refuses to
equitable, but both common law and equitable follow an apparently binding precedent on the
principles can now be applied by all courts. grounds that the facts of the case which created
b Equitable remedies are discretionary and can be the precedent are materially different from the
withheld from those who have acted inequitably. facts of the case it is considering.
c In a criminal trial the prosecution must prove the 4 Consider the following statements.
accused’s guilt beyond reasonable doubt. In a civil
i The European Parliament enacts EU legislation,
trial the claimant must prove his case on a balance
but its power to do this is very much subject to
of probabilities.
the control of the European Commission and the
d An act committed by a person cannot give rise to
European Council.
both civil and criminal liability.
ii EU legislation which is directly applicable in
2 Which one of the following statements is not true? Member States cannot always be relied upon by
a The power to pass a statutory instrument is an individual in a legal action.
conferred by an enabling Act. iii Whether EU legislation has direct vertical effect
b Once properly passed, a statutory instrument can will depend upon whether it is sufficiently clear,
give a Minister the power to alter a statute without precise and unconditional as to satisfy the Van
the need to pass an amending Act. Gend criteria.
c The courts have no power to declare either a iv Regulations which are directly applicable will have
statute or a statutory instrument void. only direct vertical effect, whereas Treaty Articles
d Some Acts of Parliament are introduced as Bills by which are directly applicable will always have
individual MPs, rather than by the Government of direct vertical and horizontal effect.
the day. v Only the House of Lords can refer a case to the
European Court of Justice, which acts as a final
3 Which one of the following statements is not true? court of appeal on issues of EU law.
a All deliberate statements of law made by the Which of the above statements are true?
Supreme Court when deciding a case will be a i, ii and iv only.
binding upon all inferior courts. b ii and iii only.
b The Court of Appeal is almost always bound by its c ii, iv and v only.
own previous decisions. d ii, iii and v only.
c The decisions of the Divisional Court are binding
on High Court judges sitting alone, but the 5 Which one of the following statements is not true?
decisions of High Court judges sitting alone are a The European Court of Human Rights is the
not binding upon other High Court judges. highest court of the European Union.

38 Chapter 1 The legal system

b New legislation which is incompatible with a d Even if a precedent­making court makes a


Convention right can still be passed by the UK declaration of incompatibility, the relevant Minister
Parliament. will not need to ensure that the UK legislation
c It is now possible for a person to sue a public is amended so as to become compatible with
authority for breach of a Convention right. Convention rights.

Task 1

Draw up a report, briefly explaining the following matters:


a The different senses in which the expression ‘common law’ is used.
b How statutes and delegated legislation are passed.
c The main rules of statutory interpretation.
d The way in which the system of judicial precedent operates.
e The ways in which EU law is created and the effect of EU law in the UK.
f The effect of the Human Rights Act 1998.
2
The courts and legal personnel

Introduction
This chapter considers the following matters: 2.3 Procedure in the civil courts
2.3.1 Making a claim
2.1 The civil courts 2.3.2 The small claims track
2.1.1 County courts 2.3.3 The fast-track
2.1.2 The High Court 2.3.4 The multi-track
2.1.3 The Court of Appeal 2.4 Alternative dispute resolution
(Civil Division) 2.4.1 Arbitration
2.1.4 The Supreme Court 2.4.2 Mediation
2.1.5 The Judicial Committee of 2.4.3 Conciliation
the Privy Council 2.4.4 Other types of ADR
2.1.6 The European Court of Justice (ECJ) 2.4.5 Tribunals
2.1.7 Appeals 2.5 The legal profession
2.2 The criminal courts 2.5.1 The Legal Services Act 2007
2.2.1 The magistrates’ court 2.6 The judiciary
2.2.2 The Crown Court 2.6.1 Judicial review
2.2.3 The Divisional Court 2.7 Juries
2.2.4 The Court of Appeal (Criminal Division) 2.8 Law reform
2.2.5 The Supreme Court 2.9 Law reporting

2.1 THe Civil CourTS 2.1.1 County courts

The civil courts are arranged in an hierarchical struc- The County Court system was restructured in 2014.
ture. If a civil dispute reaches the stage of litigation it Before the changes, England and Wales had around
will commence either in the county court or in the High 200 county courts. Now there is one National County
Court. An appeal against the decision of the county Court, and the old County Court buildings have been
court can be made to a High Court judge. An appeal renamed County Court Hearing Centres. One of these,
against a decision of the High Court can be made to based in Northampton, is called the County Court
the Court of Appeal, and from there to the Supreme Business Centre. The Centre has 170 staff and deals
Court. Unless a point of law of public importance is at with over half of all claims, electronically or by post.
stake, or unless an appeal is likely to clarify a point of Claims are issued, and defences received, and then the
law, permission to appeal will be granted only when case is transferred to the appropriate Hearing Centre.
the appeal has a real prospect of success. A party wish- A business dispute is likely to involve a claim for breach
ing to appeal can either seek oral permission from of contract or a claim in tort. As regards both of these
the court which heard the case or can make a written matters the County Court has unlimited jurisdiction
application, within 14 days, to the court which would to hear the case. A claim for less than £ 100 000 can-
hear the appeal. An outline of the structure of the civil not be started in the High Court, unless it is a claim for
courts is shown in Figure 2.1. personal injuries in which case the limit is £ 50 000.
40  Chapter 2  The courts and legal personnel

European Court of
Justice
Supreme Court
(formerly the House
of Lords)
(12 Supreme
Court justices)

Leapfrog
procedure

Court of Appeal
(Civil Division)
Leapfrog
procedure (38 Lords Justices
of Appeal)

THE HIGH COURT

appeal against Chancery Queen’s Bench Family


final decision in Division Division Division
multi-track case
(18 High (73 High (19 High
Court Judges) Court Judges) Court Judges)

The county court

640 circuit judges

438 district judges

Figure 2.1 An outline of the structure of the civil courts

In equity disputes, such as those involving wills, trusts possibility, there is a presumption that a claim should
or mortgages, the County Court hears all disputes be made in the county court rather than the High
below £ 350 000. The County Court no longer deals Court. This presumption might be rebutted on one of
with family proceedings, which have been transferred three main grounds. First, the claimant believes that
to the new Family Court. Another important change the case should be started in the High Court by reason
is that some nominated County Court judges can now of the amount being claimed. Second, a claim might
issue injunctions known as freezing orders, which pre- be brought in the High Court if the claimant believed
vent a person from moving assets out of the jurisdic- that the case was sufficiently complex to warrant this.
tion of the English courts. Before the County Court Third, the case might be brought in the High Court if
was restructured it heard 90% of civil cases, with the the outcome of the case was of importance to the pub-
other 10% being heard in the High Court. Now it is lic in general. (This last reason reflects the fact that
likely to hear more cases. the decisions of the High Court can amount to binding
Even where a claim is for a large enough sum judicial precedents, whereas decisions of the county
of money to make litigation in the High Court a court cannot. See Chapter 1 at 1.3.2.1.)
2.1 The civil courts  41

Generally the district judge, who is junior to the due. A warrant of execution can generally be taken out
circuit judge, will hear uncontested cases, as well as without the court’s permission, by filling in the appro-
claims for mortgage repossessions and cases which priate form and paying the appropriate fee. Third party
are allocated to the small claims track. (Below at 2.3.2 debt orders require a third party who owes money to
we shall see that straightforward claims for not more the judgment debtor to pay the judgment creditor.
than £10 000 are generally allocated to the small claims These proceedings might be taken against an amount
track.) The circuit judge hears the more complex claims held in a bank account. An attachment of earnings
and those in which the amount claimed is greater. If order will require the judgment debtor’s employer to
the amount claimed is over £25 000 the case should be make regular deductions from his earnings and pay
heard by a circuit judge. If it is between £10 000 and these amounts into court. A charging order over land
£25 000 the case might be heard by either a district (including the debtor’s house) can sometimes be made
judge or a circuit judge. There are currently 640 circuit and in effect this gives the judgment creditor a mort-
judges and 438 district judges. There are also around gage over the judgment debtor’s land. The creditor will
720 part-time district judges, known as deputy district then be entitled to be paid in preference to most other
judges. Appeals from a district judge are made to a cir- creditors when the land is sold, and may apply for an
cuit judge. Appeals from a circuit judge are to the High order that the land is sold. Despite all these methods
Court. However, in two exceptional circumstances an of enforcement, many county court judgments are not
appeal from a circuit judge can be made to the Court of satisfied. Winning the case is only half the battle. The
Appeal. First, where the appeal is a second appeal, that other half is getting paid.
is to say where the d ­ ecision of the circuit judge is on an Judgment debtors have the right to apply for an
appeal from a ­district judge. Second, where the decision administration order if their total indebtedness is less
is a final decision (that is to say a decision which deter- than £5 000. Under such an order a list of all the debt-
mines the entire proceedings) on a multi-track case. (See or’s creditors is drawn up. This list shows the amount
below at 2.3.4.) Third, there is a possibility of a leapfrog owing to each creditor and the debtor is ordered to pay
appeal to the Court of Appeal. (See below at 2.1.3.) the whole amount owing by instalments.
County court judgments are registered with the
Registry of County Court Judgments and the register
2.1.2 The High Court
can be inspected by members of the public. A commer-
cial creditor is likely to inspect it before making a loan. The High Court is divided into three divisions: the
Once a county court judgment has been satisfied the Queen’s Bench Division, the Chancery Division and
judgment debtor’s name will be removed from the the Family Division. Each Division hears different types
regis­ter. If the judgment was satisfied within one month of actions. The Family Division is, as the name sug-
of judgment the entry on the register is cancelled alto- gests, concerned with family matters and is of little
gether. If the judgment is satisfied later than one month interest in a business context. The Chancery Division
after the date of judgment it can be noted as satisfied, deals with matters which originated in equity, such as
but an entry will remain on the register. All entries are bankruptcy, mortgages, trusts, wills, company law and
removed altogether six years after the date of judgment. partnership law. It also deals with all forms of prop-
The county court does not have the responsibility erty and taxation disputes. It includes two specialist
of enforcing its judgment. It leaves this to the person courts, the Bankruptcy and Companies Court and the
in whose favour the judgment was given, the judg- Patents Court. The Queen’s Bench Division generally
ment creditor. However, the creditor can apply for oral deals with common law disputes such as contract and
examination of the judgment debtor, in which case the tort cases. Four specialist courts, the Divisional Court,
debtor may be brought before the court to explain his the Admiralty Court, the Commercial Court and the
financial position. Non-attendance is punishable by Technology and Construction Court are also part of the
imprisonment. Queen’s Bench Division, but each has its own procedure.
County court judgments may be enforced in several Despite these allocations, any of the three divisions can
ways. A warrant of execution against the debtor’s goods transfer a case to another division. The Commercial
allows bailiffs to take those goods, sell them and pay Court hears cases involving import and export of goods,
the judgment creditor out of the proceeds. The debtor banking, insurance and financial services and can hear
can prevent this from happening by paying the amount any case arising out of trade or commerce in general.
42  Chapter 2  The courts and legal personnel

The Commercial Court has its own specialist pro­ We considered the jurisdiction of the High Court
cedures, which are set out in a practice direction and when considering the jurisdiction of the county court.
in the Commercial Court Guide. These procedures are There are currently 110 High Court judges, 73 of these
less formal than those generally used in the High Court, sit in the Queen’s Bench Division, 18 in the Chancery
the rules of evidence being somewhat less rigid. The Division and 19 in the Family Division. The President of
Technology and Construction Court deals with special- the Queen’s Bench Division is the head of the Queen’s
ist matters relating to building work, engineering work, Bench Division. The Vice-Chancellor is the head of the
claims concerning computers and other cases which Chancery Division. The head of the Family Division is
involve complex scientific or technical questions of fact. known as the President of the Family Division.
Generally only one judge sits in a High Court case.
Slightly junior judges, known as masters, hear some
2.1.3 The Court of Appeal (Civil Division)
of the less complex High Court cases. Appeals from
the High Court go to the Court of Appeal and from The Court of Appeal is split into two divisions: the
there to the Supreme Court. As regards both appeals, Civil Division and the Criminal Division. The Court of
­permission must be gained. Appeals from a master go Appeal (Civil Division) hears appeals from the High
first to a High Court judge and then to the Court of Court, but does not hear appeals from the Divisional
Appeal, although it is quite likely that permission for Courts. Permission to appeal must be granted. Appeals
this second appeal will not be granted. from a master in the High Court go first on appeal to a
The High Court hears appeals from circuit judges in High Court judge and only then is there an appeal to
the county court. It also hears appeals from two crimi- the Court of Appeal. Exceptionally, the Court of Appeal
nal courts, the magistrates’ court and the Crown Court. may hear a ‘leapfrog’ appeal from a district judge, a cir-
When these criminal appeals are heard they are heard by cuit judge or a master. However, this will be possible
two or three High Court judges in the Divisional Courts. only if an important point of principle or practice is to
The Queen’s Bench Divisional Court is of particular sig- be considered, or if there is some other compelling
nificance in relation to statutes which impose criminal reason for the Court of Appeal to hear the appeal.
liability on business. The Divisional Court hears appeals A ‘leapfrog’ appeal can be made direct from the High
by way of case stated from the magistrates’ court, tri- Court to the Supreme Court if all parties consent, and
bunals or the Crown Court. An appeal by way of case the Supreme Court gives permission. In addition, the
stated can only be made against a decision of law made High Court judge must issue a certificate stating that
by the lower court. These appeals are generally made the case involves an important point of law involving
against decisions taken in the magistrates’ court, but the interpretation of legislation or the case concerns
can be against decisions of the Crown Court if the case a matter which has already been fully considered by
was one which was originally tried in the magistrates’ the Court of Appeal or Supreme Court. (In which case
court. The justices’ clerk sends a draft case to the par- neither the High Court nor the Court of Appeal would
ties, and this may be amended after representations have the power to refuse to follow the earlier decision.)
from the parties. The case states the facts of the case, There is also a new leapfrog procedure whereby any
the ruling given by the lower court and the question of appeal to a circuit judge or a High Court judge, from
law for the Divisional Court to consider. The Divisional a district judge or a master, can be referred straight to
Court can uphold the decision, reverse it, amend it or the Court of Appeal. This can be done if the judge who
send it back to the lower court to make the decision was to hear the appeal, or the Master of the Rolls, con-
which it thinks fit. The law made in this way is of greater siders that it raises an important point of principle or
value than the law made by ordinary High Courts. The practice, or that there is some other compelling reason
decisions of ordinary sittings of the High Court are why the Court of Appeal should hear it.
binding upon inferior courts, but not upon other High There are 38 Lords Justices of Appeal, as Court
Courts. The decisions of the Divisional Court are bind- of Appeal judges are known. Usually three judges sit
ing upon other Divisional Courts, ordinary sittings when an appeal is heard, although sometimes a full
of the High Court and inferior courts. The Chancery court of five judges is invoked. Different batches of
Divisional Court and the Family Divisional Court also three judges sit as the Court of Appeal at the same
hear appeals, but these are generally less significant in time. The Master of the Rolls presides over the Civil
a business context. Division of the Court of Appeal.
2.1 The civil courts  43

2.1.4 The Supreme Court that it makes their rulings easier to understand and
apply, but it does give rise to the fear that judicial indi-
The Supreme Court is the highest appellate court in
vidualism, displayed in the past by judges such as Lord
Great Britain and Northern Ireland. It replaced the
Denning, will become a thing of the past.
House of Lords on 1 October 2009, when 11 Law Lords
The main purpose behind the transformation of
became the first Supreme Court justices. The Supreme
the House of Lords to the Supreme Court was to free
Court now has its full complement of 12 judges. A sit-
the highest appellate court from the second house
ting of the House of Lords was generally comprised
of Parliament and to remove the Law Lords from
of five of the twelve Law Lords, although in recent
the legislature. The change is seen as increasing the
years seven or nine judges sat in a number of impor-
ju­diciary’s independence from both the legislature
tant cases. (For example, seven judges sat in Pepper v
and the executive. The new court is the Supreme
Hart, which was considered in the previous chapter at
Court of all of the United Kingdom: England, Wales,
1.3.1.4.) It is envisaged that a panel of seven or nine
Scotland and Northern Ireland. It sits in a building
judges will sit more frequently in the Supreme Court.
in Parliament Square, Middlesex Guildhall, rather than
The justices are known as My Lord or My Lady. They
in Parliament itself. Hearings are now streamed live
wear robes only for ceremonial events.
on the Supreme Court’s own website (www.supreme
The Supreme Court hears appeals from the Court
court.uk/), judgments are put on the Youtube chan-
of Appeal. Before such an appeal can be made, leave
nel, press releases are drafted by judicial assistants
to appeal is needed. The Court of Appeal hears such
and the public has access to the Supreme Court build-
an application for leave to appeal and refers it to an
ing so that they can watch cases. The first case to be
Appeal Committee of three Supreme Court justices.
heard concerned the power to freeze the assets of sus-
This Committee can allow the barrister representing the
pected terrorists and was deliberately chosen to be one
appellant to make an oral argument. The first President
of significant public interest.
of the Supreme Court, Lord Phillips of Worth Matravers,
The primary purpose of the Supreme Court is to
has indicated that in future he would like all Supreme
give rulings on difficult points of law. It does not have
Court justices to receive synopses of applications for
the power to overturn legislation, as the US Supreme
leave to appeal, so that all of them can have some input.
Court has, and will not gain such power unless the UK
In 2014 the Supreme Court heard 90 appeals.
Constitution is very significantly changed.
Most of these came from the Court of Appeal but
the Supreme Court also hears appeals from the
Scottish Court of Session and, occasionally, from the 2.1.5 The Judicial Committee of the Privy
High Court when the leapfrog procedure is invoked. Council
Typically, a case takes about two days to hear. The
The Judicial Committee of the Privy Council (gener-
Supreme Court justices, like the Law Lords before
ally known as the Privy Council) is the final court of
them, always reserve their judgment, so they do not
appeal for 13 Commonwealth countries, four Crown
give a decision at the end of the case but at some later
Dependencies and 14 Overseas Territories which
date. Lord Phillips hopes that the Supreme Court will,
choose to use it. The origins of this court can be traced
where possible, give one single judgment. If this is not
back to the Middle Ages, when the King would con-
possible he hopes that there will be one majority judg-
sult advisors known as the Privy Council. The Judicial
ment and one dissenting one. In many cases the House
Committee Act 1933 created the Judicial Committee
of Lords gave 3:2 judgments in which all of the judges
of the Privy Council, as a court in which senior judges
said something different. (See, for example, Shogun
should hear legal appeals.
Finance Ltd v Hudson at 6.2.3.1.) This made it very
The Judicial Committee of the Privy Council is,
difficult to deduce the ratio decidendi of the case.
in effect, made up of Supreme Court justices. Five of
Judgments of the Supreme Court are published on the
these justices sit in a case, sometimes accompanied by
Internet at www.supremecourt.uk/. In 2014 single
a judge from the country where the appeal originated.
judgments were given in over 55% of cases, a signifi-
The judgment of the Council is usually delivered as
cant increase from the first year of the Supreme Court
one opinion. Prior to 1966 dissenting opinions were
when the figure was 20%. The Justices now work more
not allowed. It is still the case today that there will not
as a team rather than individually. This is helpful in
be more than one dissenting opinion published, even
44  Chapter 2  The courts and legal personnel

if two of the justices dissent. Although technically of where the court considers that the appeal would
persuasive value only, decisions of the Privy Council have a real prospect of success, or there is some other
are generally treated as Supreme Court decisions. compelling reason why the appeal should be heard.
The Privy Council also has jurisdiction to hear Permission to appeal from a decision of either the
appeals concerning misconduct of doctors, dentists, county court or the High Court is usually sought orally
opticians and vets. from the lower court which made the decision or from
the court to which an appeal would lie. If the lower
court refuses permission, permission may be sought
2.1.6 The European Court of Justice (ECJ)
from the court to which the appeal would lie. When
In the previous chapter, at 1.4.3.1, we saw that the the appeal court refuses permission to appeal it gives
ECJ can express an authoritative opinion on EU law, reasons for the refusal. The appellant can then ask
if requested to do so by a national court, and that once the same court for an oral hearing to reconsider this
the ruling has been made by the ECJ the case returns decision but this may be made to the same judge that
to the court which asked for the ruling so that that refused the appeal. This is almost always the end of
court can apply the ruling. We saw that Article 267 of the ­matter. However, the court which heard the appeal
the Treaty on the Functioning of the European Union has the power to allow a further appeal to the Court
allows a national court to request an authoritative rul- of Appeal if the appeal raises an important principle
ing as to only three types of matter: the interpretation of law or procedure or if there is some other compel-
of the EC legislation; the validity and interpretation of ling reason for the Court of Appeal to hear it. In excep-
acts of institutions of the Community; and the inter- tional circumstances the Court of Appeal or the High
pretation of statutes of bodies established by an act Court, but not the county court, can reopen proceed-
of the Council, where those statutes so provide. Any ings if  three conditions are satisfied: first, that it is
national court or tribunal may refer a matter within necessary to do this to avoid real injustice; second, the
Article 267 to the ECJ if it thinks this necessary to give circumstances are exceptional and make it appropri-
judgment. We also saw that a court of final appeal ate to reopen the appeal; third, no alternative effec-
has an obligation to seek a preliminary ruling where tive remedy is available. The Court of Appeal hears
a relevant point of EU law is at issue and where there applications to appeal to the Supreme Court and refers
has been no previous interpretation of the point by the them to an Appeals Committee of three Supreme
ECJ. (Unless the point is so obvious as not to require a Court justices.
ruling.) In all civil cases an appeal is allowed, and the decision
of the lower court reversed, only where either the
2.1.7 Appeals decision was wrong or where the decision was unjust
because of a serious procedural or other irregularity in
The basic appeal structure is as follows. the lower court proceedings.
From a district judge to a circuit judge and from Generally, the appeal court reviews the case rather
there to the Court of Appeal. From a circuit judge to than rehears it.
a High Court judge. (Unless the decision of the cir-
cuit judge was an appeal from a district judge or a
final decision on a multi-track case, in which the 2.2 The criminal courts
appeal is to the Court of Appeal rather than to a High
Court judge.) The Court of Appeal hears appeals from Criminal trials are conducted in either the magistrates’
High Court judges (but not from Divisional Courts court or the Crown Court. Criminal offences are classi­
of the High Court) although it is possible for a ‘leap- fied into three bands, according to their seriousness.
frog’ appeal to be made direct to the Supreme Court. Offences triable only on indictment are the most serious
The Supreme Court hears appeals from the Court offences, such as murder, and these can be tried only in
of Appeal. The Privy Council hears appeals from the the Crown Court. The most minor offences, such as the
highest courts in 27 Commonwealth territories and majority of motoring offences, are triable only summar-
independent Republics. ily and must be heard by the magistrates’ court. Other
In all but a few exceptional cases, permission to offences, such as theft, are ‘either way’ offences, and
appeal is required. Permission will be granted only may be tried either in the magistrates’ court or in the
2.2 The criminal courts  45

Crown Court. The magistrates will decide whether they 2.2.1 The magistrates’ court
think the case should be tried summarily by the mag-
There are 142 district judges (magistrates’ courts)
istrates’ court or on indictment in the Crown Court.
and slightly under 23 000 lay magistrates. The district
Generally, the magistrates will opt for summary trial
judges (magistrates’ courts) are full-time judges who
unless the offence is so serious that the sentences which
used to be called stipendiary magistrates; 125 part-
could be passed by the magistrates’ court would not be
time deputy district judges (magistrates’ courts) also
sufficiently severe. If the magistrates decide upon sum-
sit. Magistrates’ courts dispose of 98 per cent of crimi-
mary trial they must then ask the accused whether or
nal cases. Lay magistrates are not legally qualified.
not he consents to this or whether he wishes to opt for
They sit as a bench, usually comprising three magis-
jury trial. They must explain to the accused that if he
trates, whereas district judges (magistrates’ courts)
opts for summary trial he may nevertheless be sent to
sit on their own. In a criminal case it is the job of the
the Crown Court for sentence if the accused’s character
magistrates to decide the facts, that is to say whether
and history are subsequently found to be such that a
the defendant is guilty or not guilty. If the defend-
sentence greater than that which could be passed by the
ant is guilty the magistrates also pass sentence upon
magistrates is justified.
him, although sometimes they commit him to the
An outline of the structure of the criminal courts is
Crown Court for sentence. Lay magistrates should seek
shown in Figures 2.2 and 2.3.
the advice of the clerk of the court, also known as a

European Court
of Justice

Supreme Court

Queen’s Bench
Divisional Court
Appeal by way
of case stated

Crown Appeal by way


Court of case stated

Appeal against
sentence or conviction
Magistrates’
court

Figure 2.2 Structure of the criminal courts as regards summary


offences
46  Chapter 2  The courts and legal personnel

Supreme Court

The Court of Appeal


(Criminal Division)

European Court of
Justice
Crown Court (Trial)

Magistrates’ court
(Remand/committal
proceedings
only – no trials)

Figure 2.3 Structure of the criminal courts as regards indictable offences

justice’s clerk, in order to ascertain matters of law, sen- sentences, so that the defendant is sentenced to a total
tencing or procedure. Magistrates’ clerks are lawyers of 12 months in prison.
who pursue a career as clerks. They may offer advice Defendants have a right to appeal against convic-
to the magistrates even when the magistrates have not tion or sentence to the Crown Court but must be made
sought it. aware that the Crown Court may increase the sentence
As well as hearing summary offences and most passed by the magistrates, as long as this does not
either-way offences, magistrates’ courts also have exceed the maximum sentence which the magistrates
other duties. After a defendant’s arrest they decide could have passed. If the appeal is against conviction,
whether he should be given bail or remanded in cus- which is only possible if the defendant pleaded not
tody. They conduct the committal proceedings if the guilty in the magistrates’ court, the case is reheard
defendant is to be committed to the Crown Court for in the Crown Court. Such an appeal could be against
trial. They have jurisdiction in some civil areas which the facts or the law. If the appeal is against sentence,
affect children and families. They hear applications for the prosecution generally outlines facts admitted or
various types of licences, such as liquor licences, and found by the magistrates, although a complete rehear-
also deal with some types of civil debts, such as arrears ing of the case is possible. However, if the appeal con-
of council tax. The Crime and Disorder Act 1998 cerns a point of law, it may be made to the Divisional
empowers them to pass Anti-Social Behaviour Orders Court by way of case stated, which is explained below
(ASBOs) against offenders aged ten or over. at 2.2.3.
Magistrates may commit those summarily con-
victed of an either way offence to the Crown Court
2.2.2 The Crown Court
for sentence if they feel that a punishment which is
greater than they can impose is warranted. Magistrates The Crown Court sits in 77 centres in England and
may impose a fine of up to £5 000 and may pass sen- Wales. As explained earlier, the Crown Court con-
tences of up to six months in prison in respect of any ducts all trials of indictable offences and some ­trials
one offence. Where the offences are triable either where the crime was an either way offence. Generally,
way, magistrates can pass two consecutive six month the Crown Court is staffed by a circuit judge, although
2.2 The criminal courts  47

sometimes a High Court judge sits. Offences range 2.2.4 The Court of Appeal
through four degrees of seriousness. Class 1 offences, (Criminal Division)
such as murder, are almost always tried by a High
The Criminal Division of the Court of Appeal is pre-
Court judge. Class 2 offences, such as rape, are
sided over by the Lord Chief Justice. This court hears
also generally tried by a High Court judge. Class 3
appeals from the Crown Court, either against convic-
offences, such as causing death by dangerous driving,
tion or against sentence. Section 2 of the Criminal
may be tried by either a High Court judge or by a cir-
Appeal Act 1995 allows an appeal to the Court of
cuit judge. Class 4 offences, such as grievous bodily
Appeal (Criminal Division), against conviction in the
harm or an either-way offence, are tried by a circuit
Crown Court, on only three grounds: that the jury’s
judge.
verdict should be set aside as having been unsafe and
The Crown Court may pass sentence on those sum-
unsatisfactory; that a wrong decision was taken as to
marily convicted of an either-way offence if the magis-
a question of law; or that there was a material irregu-
trates commit to the Crown Court for sentence. Such
larity in the course of the trial. Appeals against acquit-
a committal would generally be heard, like an appeal
tal can be made. These appeals might result in the law
from the magistrates’ court against sentence or convic-
being amended, but will not mean that the defendant
tion, by a circuit judge and two magistrates.
who was acquitted is subsequently convicted. When an
When a case is tried in the Crown Court the jury
appeal against sentence is made, the Court of Appeal
decide the facts–whether the defendant is guilty or
may impose a greater sentence than that imposed by
not guilty. The judge sums up to the jury the matters
the Crown Court.
they should take into consideration in reaching their
verdict. The judge also supervises the running of the
trial, for instance deciding whether or not certain 2.2.5 The Supreme Court
matters are admissible as evidence. If the defendant
The Supreme Court hears appeals from the Court
is found guilty, the judge passes sentence, although
of Appeal (Criminal Division) and from the Queen’s
there is often a considerable delay while various
Bench Divisional Court. The Court of Appeal will
reports are being made. Appeals against conviction or
need to certify that the case involves a point of law
sentence are made to the Court of Appeal (Criminal
of general public importance. In addition, either
Division).
the Court of Appeal or the Supreme Court must
grant permission for the appeal to be made on the
grounds that it is a case which ought to be made to
2.2.3 The Divisional Court
the Supreme Court. The Privy Council’s jurisdiction,
The Queen’s Bench Divisional Court hears appeals by explained above at 2.1.5, covers criminal appeals as
way of case stated from the magistrates’ court. It can well as civil appeals.
also hear appeals by way of case stated from the Crown
Court if the case was first tried in the magistrates’ court
and then appealed to the Crown Court. The appeal can
Test your understanding 2.1
only be on a point of law or on an argument that the
magistrates exceeded their powers. Such cases are 1 In which two courts might a civil case be
heard by two or more judges, at least one of whom tried?
will usually be the Lord Chief Justice or a Lord Justice 2 How will it be decided which of the two courts
of Appeal. If the prosecution appeals, the Divisional is the appropriate court to try the case?
Court have the power to order the magistrates’ court to 3 From which courts does the Court of Appeal
convict a defendant who was acquitted by the magis- (Civil Division) hear appeals?
trates. Many cases heard by way of case stated become 4 From which civil courts does the Supreme Court
important precedents. Partridge v Crittenden [1968] hear appeals?
I WLR 1204, considered in Chapter 3 at 3.1.2, pro- 5 In which two courts might a criminal case be
vides an example. The appeal to the Divisional Court tried? How will it be decided in which court the
was made by way of case stated from the magistrates’ case should be tried?
court. An appeal from a Divisional Court goes to the 6 What is an appeal by way of case stated?
Supreme Court.

48  Chapter 2  The courts and legal personnel

issues which do not require litigation are disposed


7 To which court is an appeal against conviction by
the magistrates’ court, or against the sentence of before the case is tried; decide the order in which
imposed by the magistrates’ court, made? issues will be resolved; consider whether the taking
of any step is justified by the costs which this would
8 From which courts do the Court of Appeal
(Criminal Division) and the Supreme Court hear involve; and ensure that the case proceeds quickly
criminal appeals? and efficiently. Technology should be used wherever
appropriate. As many aspects of the case as possible
should be dealt with on the same occasion and the
case may be dealt with without the parties having to
2.3 Procedure in the civil attend court. If the case is to reach court, the judge sets
courts out timetables for the hearing and supervises the con-
trol of the case. The courts have the power to decide
In 1999 the Woolf reforms radically overhauled pro- the issues on which evidence will be allowed. They
cedure in the civil courts. The reforms were brought also have the power to decide the nature of evidence
about to give effect to the Woolf Report, which was to be allowed and the way in which the evidence may
produced by a committee chaired by Lord Woolf, the be presented.
Master of the Rolls. This report found that the civil The judges have been trained to become unsym-
justice system was slow, expensive, bound by archaic pathetic to the old style of litigation. The court can
procedures, excessively complicated and generally ill- ask a party to clarify a matter or provide additional
suited to the needs of clients. These critical views were information about it. It can shorten the time by which
shared by a majority of those who had litigated in the procedures must be completed. The time limits set by
courts. The adversarial culture of litigation meant that the court are rules, not targets. However, in appropri-
unnecessary delays and the deliberate running up of ate circumstances the judge can increase time lim-
expenses were often used as a tactic to defeat the other its. The judge can identify preliminary issues which
side. In many types of disputes expensive expert wit- should be tried first and can dismiss a case or give
nesses were routinely produced by each side. Rather judgment as soon as a certain preliminary issue has
than helping the court to resolve a technical problem, been decided. In many cases the parties will them-
these experts were seen as on the side of one or other selves settle the case after one preliminary issue has
of the parties and were subjected to partisan pressure been decided.
by the other party’s lawyers. Orders made by the court may be subject to con-
Lord Woolf’s Report concluded that civil justice ditions, such as the payment of money into court.
was in a state of crisis and therefore made recommen­ If these conditions are not complied with the party
dations for sweeping change. These changes have in default may have his case struck out. Claims and
been brought about by New Civil Procedure Rules, the defences which have no reasonable chance of suc-
overriding objective of which is to enable the court to cess can be struck out. They can also be struck out
deal with cases justly. if either a rule, a practice direction or a court order
One of the main features of the reforms is that the has not been complied with. Lesser sanctions are also
management of the case is removed from the hands of available to the court. It may order a party in default
the litigants and passes to the judge. Under this new to pay all or part of the costs of the case, refuse to
system of judicial case management the judge first allow interest on damages where the claimant is at
determines which of the three new tracks the case is fault, or order that interest is paid at a higher rate
to be on: the small claims track, the fast-track or the where the defendant is at fault. Procedural errors are
multi-track. The judge also sets time scales by which not to invalidate any part of the proceedings unless
certain procedures must have been completed. The the court exercises its discretion to order that they
judge’s active management of the case requires him should. Furthermore, accidental errors or omissions
to do the following things: encourage cooper­ation can be corrected at any time and the court may do this
between the parties to the case; encourage the par- on its own initiative.
ties to settle the case or part of the case; identify the The parties to a dispute are now actively encour-
true points at issue as early as possible and ensure that aged to consider alternative dispute resolution (ADR).
2.3 Procedure in the civil courts  49

Moreover, the judge not only encourages the parties to set out a concise statement of the facts upon which the
seek ADR, but may also stay (suspend) the proceed- claimant is relying, and a statement of truth that the
ings so that the parties can try to resolve their dispute claimant believes the facts to be true. It is advisable for
by an alternative method. We examine the various the claimant to state the remedy which he is seeking
methods of ADR below at 2.4. but it is not absolutely necessary to do this as the court
Ten pre-action protocols have been drawn up. These may award a successful claimant any remedy to which
protocols require that at the start the parties should he would be entitled. The claim, the particulars and a
identify the issues in dispute, the evidence available response pack are served on the defendant, who must
and how the disputed points should be resolved. The generally respond within 14 days or judgment can be
idea is that litigation is to be a last resort. A party who given against him. If the defendant does respond, the
does not follow the letter and spirit of the protocols can response might take several forms. First, the defend-
be subject to a sanction. In a business context, three ant might pay the claim in full. Second, the defendant
pre-action protocols are of particular significance, might file an acknowledgement of service if he can-
relating to professional negligence, clinical negligence not file a defence within 14 days or wants to dispute
and personal injury. the court’s jurisdiction to hear the case. The filing of
Perhaps the most significant of the new reforms an acknowledgement of service will give the defend-
is that cases are allocated to one of the three tracks. ant another 14 days in which to respond. Third, the
Earlier we considered the jurisdiction of the county defendant might admit some or all of the claim. If the
court and the High Court. The High Court only takes admission is only partial he will also file a defence. If
multi-track cases. The county court takes all fast-track the claim is for an unspecified amount of money the
cases and small claims, as well as some multi-track defendant might offer a certain sum in satisfaction
cases. A claim which is being defended will be allo- of the claim and might offer to pay this amount by
cated by the court to either the small claims track, the instalments. Where a claim is admitted but the claim-
fast-track or the multi-track. Generally, this allocation ant does not accept the amount offered, or the rate
will be made by a master or a district judge on the basis at which this amount is to be paid, the claimant may
of a questionnaire completed by the parties. Each of never­theless ask that judgment is entered in his favour.
the three tracks needs to be considered in turn. Before If this is done, the court will determine the amount
considering them, however, it is worth stressing the of damages at a later hearing. Fourth, the defendant
point that litigation should always be a last resort for might file a defence. A defence must be specific as to
any business. It is expensive, time-consuming, uncer- the reason why specific allegations are denied, which
tain and very likely to destroy any business relation- allegations the claimant will have to prove, which alle-
ship which exists with the other party. gations are admitted and any reason for disputing the
value of the claim. The defendant might also make a
counterclaim against the claimant, either as part of a
2.3.1 Making a claim
defence or while admitting the claim.
Once it has become apparent that a business dispute The responses which the defendant might make, and
is not going to be resolved informally, one of the par- the effect of these responses, are shown in Figure 2.4.
ties may initiate legal proceedings by issuing a claim Once a claim has been filed the court moves on to the
against the other. First, a final letter should be sent to process of allocating the claim to one of the three tracks.
the other party, warning that a claim will be made if
a satisfactory response to the claimant’s demands is
2.3.2 The small claims track
not received by a certain date. A claim is commenced
by filling in a claim form. This is done whether the Cases other than personal injury cases are likely to be
amount of money claimed is specified or unspecified allocated to the small claims track if they satisfy three
and whether the claim is for a court order rather than criteria. First, they must be straightforward claims for
for money. The form will require the claimant to state not more than £10 000. (This amount can be greater
the value of the amount claimed. The particulars of the if both parties agree to allocation to the small claims
claim can either be attached to the claim itself or can be track.) Second, the case should not involve a substan-
served on the defendant separately. These particulars tial amount of preparation before the hearing. Third,
50 
Chapter 2  The courts and legal personnel
default judgment in
ignores the claim favour of a claimant can
be entered after 14 days

defendant is given
files acknowledgement
additional 14 days
of service
in which to respond

admits liability, judgment proceed to court


allocation
but disputes the entered hearing on quantum
questionnaire
amount of the claim on liability of damages

Defendant
no proceed to court hearing
does claimant
d
files a defence apply for summary ante
ot gr
if n summary judgment
judgment?
yes if granted entered for claimant

claimant must defend


files a defence and the counterclaim, or the allocation
proceed to court hearing
a counterclaim defendant will gain questionnaire
judgment on the counterclaim

claimant could gain


all previous options
judgment on initial
files a counterclaim only, counterclaim reversed, as if the claimant
claim if applies for
which is not a set-off proceeds were the defendant at
summary judgment
the start of the diagram
or default judgment

Figure 2.4 An outline of the effect of the defendant’s responses to a claim which has been served
2.3 Procedure in the civil courts  51

the case should not be one where large legal costs will serious irregularity in the way in which the case was
be incurred. conducted. Where an appeal is made, the circuit judge
The third requirement reflects the fact the small will give a decision and will not order a rehearing of
claims procedure has been designed so that the parties the case.
have the option of conducting their own case without
legal representation. However, litigants on the small
2.3.3 The fast-track
claims track can be represented by lawyers if they so
wish. Cases other than landlord and tenant cases, or claims
Special rules apply to personal injury cases and to which include a claim for personal injury, will gen-
landlord and tenant disputes. Personal injury cases erally be allocated to the fast-track if the claim is for
will only be allocated to the small claims track where not more than £25 000 and there is not a substan-
the total amount of the claim is not more than £10 000 tial amount of pre-hearing preparation. However,
and the claim for general damages for personal injuries these cases will not be allocated to the fast-track if
is not more than £1 000. they are expected to last for longer than one day or
Generally, a small claims case will involve only if there is likely to be a substantial amount of oral
one hearing in front of a district judge. The parties expert evidence at the trial. We saw earlier that a
will be required to file and serve copies of all relevant claim of not more than £10 000 is not allocated to
documents, including any expert’s report. However, the small claims track if it involves a claim for per-
expert evidence cannot be admitted in a small claim sonal injuries of over £1 000. Such cases are allo-
hearing unless the court consents and such consent cated to the fast track.
would not usually be granted. The originals of docu- It is expected that a fast-track case will be com-
ments must be brought to the hearing. The judge can pleted 30 weeks after allocation. Upon allocation to
hold a preliminary hearing, although this is discour- the fast-track the court will set out a timetable for mat-
aged. A preliminary hearing might be used to clarify ters such as disclosing documents, exchanging witness
a claim or to dispose of a claim which has no real statements and expert’s reports, the sending of list-
chance of success. On rare occasions, the judge may ing questionnaires by the courts so that the date and
decide the case by a ‘paper disposal’, without any length of the trial can be fixed, the completing of these
hearing at all. questionnaires and the hearing itself. Financial penal-
The district judge has considerable leeway as to the ties can be imposed on parties who do not adhere to
proceedings at the hearing. The hearing is informal the timetable. Postponement of the trial is a possibil-
and the strict rules of evidence do not apply. The judge ity, but is very much a last resort.
will probably appoint each side the same amount of A one day fast-track trial actually runs for five
time to present their evidence and give an immediate hours. The judge will begin with a certain amount of
decision at the conclusion of the case. reading time and then brief opening speeches will be
Generally each side will pay its own costs. The only made by the lawyers. The majority of the time, per-
costs recoverable will usually be the costs involved in haps about three hours, will be for examination of wit-
issuing the claim. However, the district judge has a nesses by the two sides. Both the defendant and the
discretion to allow costs for travelling expenses, loss of claimant will make closing submissions to the judge,
earnings and an expert’s fee. The amount of costs for who will prepare and deliver judgment and assess the
the expert’s fee cannot exceed £200 (and the empha- costs.
sis is very strongly against experts appearing in small If extensive oral expert evidence is needed, a case
claims hearings) and the amount of costs for lost earn- is not suitable for the fast-track. In a fast-track trial
ings cannot exceed £50 per day. If a party behaves each party can be allowed one expert per issue, with
unreasonably the court can penalise him by ordering a maximum of two issues. However, the court will
him to pay costs. appoint an independent expert, instructed jointly by
Appeals against small claims decisions can be both parties, wherever possible and will strive to cut
made to a circuit judge, but such appeals are most down on expert evidence. Generally, expert evidence
unusual. The appeal cannot be made on fact, but only would be found in written reports rather than given
on the grounds that there was a mistake of law or a orally at the trial.
52  Chapter 2  The courts and legal personnel

2.3.4 The multi-track sorted out, and then analyse how the trial should run.
The order in which issues are to be decided should be
Claims which are not suitable for the small claims
set out. Information technology requirements should
track or the fast-track are allocated to the multi-track.
be set out, as well as the order of witnesses and the
This usually means cases where the amount claimed is
way in which the trial documents will be organised.
substantially over £25 000, or cases which are likely to
The clients should attend, along with the lawyers who
take more than one day in court or in which there will
will argue the case.
be substantial expert evidence. In addition, a claim
After the trial itself, the judge may either deliver the
will be allocated to the multi-track where the court is
judgment, or may reserve judgment until a later date.
likely to have to decide a substantial question of fact.
The assessment of costs will be made after the judg-
A multi-track case is heard either by a circuit judge or
ment is given. An appeal from a decided multi-track
a High Court judge.
case goes to the Court of Appeal, whether the case was
As the name suggests, the multi-track allows
heard by a circuit judge or a High Court judge.
the court considerable flexibility in dealing with the
claim. The case will be judicially managed but there
is no standard procedure. Whereas a fast-track case 2.4 Alternative dispute
is likely, but not certain, to follow a pre-arranged resolution
pro­cedure, multi-track cases adopt the procedure to
meet the needs of the case. A party may indicate in the Litigation should always be a last resort for a busi-
allocation questionnaire that he thinks that it will be ness. The disadvantages are manifest. The first and
necessary to have a case management conference, which most obvious problem is that the whole process is
is similar to an ordinary business meeting. At such a likely to prove costly. If the case is lost, the loser will
conference a judge, usually a master or a district judge, have to pay not only his own legal costs but also the
will try to identify the issues in dispute. The lawyers costs of the other party. Even if the case is won, full
attending the meeting must be familiar with the case. legal costs are not always recovered. There is also the
They must also have the authority to deal with mat- danger, particularly when the case concerns secur-
ters which arise. The court has the power to order ing the payment of a debt, that the other side will
the clients to attend. We have already seen that case become insolvent. It is bad enough that even though
management would, among other things, encourage the case is won the bill is not paid. It is worse still
the parties to cooperate with each other in the conduct that legal costs have been incurred and these too are
of the proceedings, fix timetables for the case and give not recoverable. In such circumstances it will gen-
directions to ensure the speedy and efficient progress erally be much better to compromise and get paid
of the trial. The claimant may be asked to provide a something.
case summary, which should generally not be of more A second problem is that litigation is complex.
than 500 words and which the defendant can be asked Despite the new rules of procedure the litigants may
to agree to. The summary might set out the issues of not always be fully aware of how the case is proceed-
fact which are agreed, the issues of fact which are in ing. Litigating is also a major worry and the stress
dispute, and the evidence which will be needed in involved can mean there are health as well as finan-
order to ascertain the facts. cial risks. Nor is litigation speedy. It may be quicker
The judge can alter the standard rules on disclosure than it was before the recent reforms, but a fast-track
of documents so as to fit the needs of the particular case will only be resolved some six months after allo-
case. The judge will also determine the extent to which cation and a multi-track is likely to take considerably
experts are needed. In many multi-track cases it would longer.
not be appropriate to insist upon one expert appointed A third problem is that litigation creates lasting ill-
by both sides. feeling. If a business sues a customer then, win or lose,
If the case involves complex issues the court may this is likely to be the end of the business relationship.
order a pre-trial review. This would usually take place If the dispute can be settled amicably the parties may
about one or two months before the trial and would continue to do business with each other.
be presided over by the trial judge. This review would Yet another disadvantage is that litigation takes
consider whether any preliminary issues could be place in open court. A typical case might involve a
2.4 Alternative dispute resolution  53

claim for the price of goods, where the buyer alleges Section 1 of the Arbitration Act 1996 provides that:
that the goods were not of satisfactory quality. The
‘The provisions of this Part are founded on the follow-
seller will not want the allegations to be aired in open
ing principles and shall be construed accordingly–
court. Nor will the buyer want it to be publicly claimed
that he does not pay his bills. Alternative dispute reso- (a) the object of arbitration is to obtain a fair reso­
lution (ADR) can avoid this bad publicity. lution of disputes by an impartial tribunal without
Before considering arbitration, mediation and unnecessary delay or expense;
­conciliation, it should be realised that the vast majority­ (b) the parties should be free to agree how their dis-
of disputes are settled by the parties themselves. putes are resolved, subject only to such safeguards
Generally, there will be an exchange of correspond- as are necessary in the public interest;
ence and, perhaps after a period of negotiation, the (c) in matters governed by this Part the court should
claimant will agree to withdraw the action in return not intervene except as provided by this Part.’
for the defendant paying a sum of money or agreeing
Section 33(a) requires that the arbitrator should act
to other conditions.
fairly and impartially between the parties, giving each
party a reasonable opportunity of putting his case
and dealing with that of the opponent. Section 33(b)
2.4.1 Arbitration
makes it plain that the arbitrator has no need to follow
When the parties to a dispute agree to refer the dispute High Court procedures. It requires that the arbi­tration
to arbitration they agree that their dispute should be adopts procedures suitable to the circumstances of
resolved by an arbitrator rather than by a court. Having the particular case, avoiding unnecessary delay or
made such an agreement the parties are stuck with it. In expense, so as to provide a fair means for the resolution
commercial disputes, arbitration may be very similar to of the matters falling to be determined. Section 33 is
litigation, especially if the arbitrator is a judge or a mas- mandatory, but s.34, which is non-mandatory, allows
ter from the Commercial Court. The rules of pro­cedure the arbitrator to decide all procedural and evidential
may be very similar to those of the High Court and the matters.
lawyers representing the parties may be required to act There are now fewer challenges to the arbitrator’s
much as they would in the High Court. All of this means jurisdiction and unjustified challenges are not dealt
that the proceedings might not be much cheaper than with sympathetically. Section 34, a non-mandatory
litigation, if any cheaper at all. The big advantage is that ­section, allows the arbitrator to decide upon his own
the case would be resolved in private. The procedure jurisdiction to hear the case. It also allows the ­arbitrator
might also be speedier than litigation. to use an inquisitorial approach to deciding the facts
The Arbitration Act 1996 was needed because prior and the law.
to the Act coming into effect three separate Arbitration A mandatory section, s.40, requires that the parties
Acts, the 1950, 1975 and 1979 Acts, were all in force do all things necessary for the proper and expeditious
and it was extremely difficult to know exactly what conduct of the arbitral proceedings. This includes
the law on arbitration was. Arbitrators were also complying without delay with procedural and eviden-
very prone to a challenge by one of the parties, which tial matters and, where it is necessary to gain a pre-
would bar them from hearing the case. This was par- liminary judgment of a question of law from a court,
ticularly the case where arbitrators tried to settle the getting such a judgment without delay.
case in a proactive way. Consequently, the High Court Section 9 allows a party to apply for a stay of the
rules of procedure and evidence tended to be followed proceedings if the other party brings court proceed-
slavishly to prevent a challenge. Challenges to an arbi- ings in respect of a matter which it has been agreed
trator’s jurisdiction to hear the case were an extremely should be resolved by arbitration. The court will grant
common delaying tactic. The arbitrator could not a stay unless satisfied that the arbitration agreement
decide upon his own jurisdiction and so a lengthy is null and void, inoperative or incapable of being
referral to a court was necessary. performed.
The new Act has mandatory sections and non-­ Section 65, which is non-mandatory, allows the
mandatory sections, out of which the parties may arbitrator to determine that the costs of the proceed-
contract. ings should be limited to a certain amount.
54  Chapter 2  The courts and legal personnel

An agreement may be referred to arbitration either for four hours. Additional time is provided at pro rata
by the court, or by an Act of Parliament, or by the par- rates. However, when a claim is for more than £50 000
ties themselves. The parties may refer the dispute to the parties to the case must agree the fee with the
arbitration by a term of a contract which is in dispute, mediator.
or by agreement once a dispute has arisen. A court may The Court of Appeal and the Commercial Court
refer one specific point to arbitration or, if the parties both have mediation schemes. Some county courts
agree or if the case will involve lengthy examination have piloted mediation schemes over several years,
of scientific documents, it may refer the whole case. and one particular scheme, the Manchester Court
Several Acts of Parliament refer disputes to arbitration. Mediation Scheme, is to be rolled out to all county
Legal aid is not available in respect of arbitration pro- courts.
ceedings. This may prove a considerable hindrance to
those of limited means.
2.4.3 Conciliation

2.4.2 Mediation Conciliation is similar to mediation except that the


conciliator actually suggests a basis for settlement
As regards litigation and arbitration, the dispute is to the parties. In Chapter 21 we shall see that ACAS
resolved for the parties by an independent body. attempts to conciliate between the parties before
Mediation is different, in that the parties themselves an employment dispute is taken to an employment
agree to any resolution of the dispute. The mediator’s tribunal.
role is to try and facilitate such an agreement. There Both mediation and conciliation suffer from the
are no fixed rules as to how mediation might operate. problem that they may well prove futile in that no
Generally, however, the parties would first present an ­settlement will be reached or become any closer.
outline of their case to each other, in the presence of
the mediator and reply to the other party’s case. The
2.4.4 Other types of ADR
mediator will set out the rules, trying to keep matters
simple and striving to identify the key issues in dis- Other types of ADR include: neutral evaluation by a
pute. Then the two sides will probably repair to differ- third party who gives a non-binding view of the case;
ent rooms and the mediator will spend time with one expert determination, which allows an independent
group, before passing on the position of that party to expert to decide an issue; neutral fact finding, whereby
the other party. A large number of such visits might a neutral expert comes to a non-binding ­decision on a
need to be made and ideally the parties should move complex, technical issue of fact; and med-arb, which is
closer to agreement until they finally agree to s­ ettle. a combination of mediation and arbitration – first the
It is not always the case that those taking part in medi- parties mediate but if this is not successful they take
ation are genuinely attempting to settle the case. They the dispute to arbitration. Several businesses also pro-
might merely be trying to find out the strengths and vide online dispute reso­lution (ODR) where disputes
weaknesses of the other party’s case. Mediators report are settled entirely on the Internet, either through
that many disputes which are not settled during the mediation or negotiation.
mediation are settled shortly afterwards. The Civil
Mediation Council has set up a National Mediation
2.4.5 Tribunals
Helpline to give civil court users advice and informa-
tion about mediation. The Helpline does not itself pro- Various Acts of Parliament have established tribunals
vide mediation, but after asking about the dispute it is to hear certain types of cases. These tribunals hear
able to pass the details on to an online medi­ation pro- very many more cases than are heard by the county
vider who has been approved by the Civil Mediation court or the High Court. Tribunals might exercise
Council. Such a mediator will provide services for a administrative or judicial functions. Those exercising a
set fee and for a set time. For a small claim case the judicial function act in the same way as a court.
fee is £50 plus VAT per hour and the time allowed is It is not possible to take a dispute to a tribunal
one or two hours. For a ‘fast-track’ case it is £300 plus unless the dispute concerns the particular type of mat-
VAT for three hours. For a ‘multi-track’ case it is £425 ter with which the tribunal deals. If the dispute does
2.5 The legal profession  55

concern such a matter then a dispute cannot be taken Tribunals are controlled by the courts and by the
before the ordinary courts, but must be dealt with Council on Tribunals. A claim of judicial review may
by the relevant tribunal. The matters with which the be brought before the High Court, arguing that a tri-
major tribunals deal can be deduced from their names. bunal has exceeded its powers or has not adhered to
There are many different types of tribunals, deal- the rules of natural justice. The courts also have the
ing with matters such as social security, child support, power to reverse the decisions of tribunals which did
asylum and immigration and employment disputes. not correctly apply the law. The Council on Tribunals
In the study of business law the tribunals of real supervises tribunals generally and publishes an annual
significance are the employment tribunals and the review in which criticism of tribunals can be made.
Employment Appeal Tribunal. The nature of these tri-
bunals is explained in Chapter 20. The procedure used
in an employment tribunal is examined in Chapter 21
at 21.20.
Test your understanding 2.2
Typically a tribunal will consist of three members, 1 What is the overriding objective of the changes
one of whom, the chairman, will be legally qualified. made by the Civil Procedure Act 1997 and the
The two lay members will have some expert knowl- Civil Procedure Rules 1998?
edge of the area of law with which the tribunal deals 2 To what three tracks might a case be allocated?
and the chairman will tend to specialise in that area Who makes this allocation?
of law. For example, in the employment tribunal the 3 What are the alternatives open to a defendant
two lay members would typically be nominated by a upon whom particulars of claim have been
trade union official and by an employer’s association, served?
and the chairman would be a lawyer who specialises in 4 How does the ‘no win, no fee’ scheme help to
employment law. fund personal injury cases?
Several advantages are claimed for tribunals. First, 5 What are the main disadvantages of litigation
cases can be brought before a tribunal on a certain perceived to be?
date and the waiting time for the case to begin is likely 6 What is arbitration?
to be much shorter than it would be for a court case. 7 What are mediation and conciliation?
Second, the costs in tribunals are likely to be much
8 What is a tribunal?
lower than court costs, as the parties can represent
themselves. There are often no court fees and the losers
usually do not have to pay the costs of the winner. 2.5 The legal profession
Third, the proceedings are informal and this allows
the parties to express themselves personally or to get Unlike other European countries, England has two
a lay person who they feel really understands their different types of lawyers – barristers and solicitors.
case, such as a trade union official, to present the case. There are currently about 12 700 self-employed prac-
Fourth, tribunal members have technical expertise of a tising barristers, about 4 200 of whom are women, and
practical nature and can bring this to bear on the case. it is their main job to argue cases in court. However,
Fifth, it is possible that in certain circumstances a tri- the role of the practising barrister is much wider than
bunal might sit in private. merely acting as an advocate. Barristers spend a con-
These advantages must be viewed in the light of siderable amount of time giving written opinions, in
certain disadvantages. First, the lack of court pro­ which they state what they consider the law to be.
cedure and, perhaps, of legal representation might They also draft statements of case, the formal docu-
mean that the high standards of justice which one ments which the parties must exchange before a case
would expect in court proceedings are not found in is heard in court. Barristers tend to specialise either
tribunal proceedings. Second, an appeal from a tri­ in criminal law or in a particular branch of civil law.
bunal can sometimes be made to another tribunal or to They have rights of audience in all civil and criminal
a Minister, rather than to a court of law. Third, the lack courts. Until 1990 barristers had an exclusive right to
of legal aid may mean that some claimants cannot find be heard in senior courts, but now solicitors may also
anyone to represent them effectively. have rights in such courts.
56  Chapter 2  The courts and legal personnel

About 1 650 barristers are known as Queen’s A solicitor in a one-person business should have
Counsel. These senior barristers generally appear in a good idea of most areas of law and should know
court with a junior barrister assisting them. Queen’s where more information could be found if needed.
Counsel, or QCs as they are usually known, can charge In the larger firms, solicitors would tend to specialise
higher fees than other barristers, in recognition of in one particular area of law. Solicitors routinely give
their expertise. Currently only about 14 per cent of their clients legal advice, enter into correspondence on
QCs are women. their behalf, draft wills and draw up documents which
Barristers are not allowed to form partnerships. transfer ownership of land.
Instead, they operate from chambers, which are offices Until 1990, solicitors were only allowed to argue
where several barristers are allocated work by a bar- cases in the magistrates’ court and the county court.
rister’s clerk, who also negotiates the barrister’s fees. Now the barrister’s monopoly right to appear in the
Members of the public are now allowed to instruct a Crown Court and appellate courts has been removed
barrister directly, without going through a solicitor. by statute, and solicitors who have gained the necess­
Under the ‘cab rank’ rule a barrister, like a taxi, is sup- ary advocacy qualifications can represent clients in
posed to provide his services to any client. Theoretically any court. About 4 000 have this right and several have
therefore, any barrister is available to any client whose become QCs. However, barristers still perform the vast
solicitor asks that the barrister should be engaged. This bulk of advocacy work in these courts. Whereas solici-
is not always true, as some barristers’ fees are beyond tors have gained rights of audience since 1990, they
the means of many clients and because barrister’s have lost their monopoly rights to perform conveyanc-
clerks, who arrange what cases a barrister can take, are ing and to obtain grants of probate. The Administration
skilled at deflecting unwanted cases. It often happens of Justice Act 1985 allowed licensed conveyancers to
that when a particular barrister has been engaged he practise. It was widely predicted that this would be
is not available when the case starts because another disastrous for many small firms of solicitors, but this
case in which he is appearing has not finished in time. does not seem to have been the case.
The client is then allocated a different barrister. Many Complaints against solicitors can be made to the
barristers do not practise, but work in industry or com- Legal Ombudsman. Complaints about breaches of
merce or for local government or the Civil Service. rules or breaches of the solicitor’s code of conduct
Barristers must wear wigs and gowns in court, or are dealt with by the Solicitors Disciplinary Tribunal.
the judge cannot ‘see’ or ‘hear’ them. This, like many This tribunal has the power to strike a solicitor off,
other aspects of the Bar, seems somewhat out of date. so that he may no longer practise. The Legal Services
(It is still part of a barrister’s training that he should Ombudsman has the power to investigate complaints
eat a certain number of dinners at one of the four Inns that a professional body relating to a legal professional
of Court in London.) In 2003, the Lord Chancellor’s has not adequately investigated a complaint.
Department (now the Ministry of Justice) issued a As well as barristers and solicitors, there are over
working paper seeking views on whether the clothes 22 000 legal executives, who are members of the
which barristers and judges wear in court should be Institute of Legal Executives. If legal executives pass
made less formal. Complaints against barristers can the necessary exams they can have rights of audience
be made to the Legal Ombudsman. In addition, an in some courts. They generally carry out routine work
independent regulatory body of the Bar Council, the of a legal nature but increasingly do the type of work
Bar Standards Board, could debar a barrister who was formerly carried out by a solicitor.
guilty of serious professional misconduct and could
thereby prevent him from practising.
2.5.1 The Legal Services Act 2007
There are about 168 000 solicitors, about 133 000
of whom hold a practising certificate. About 48 per The Legal Services Act (LSA) received Royal Assent in
cent of solicitors are women, a percentage which is 2007. However, it did not fully come into force until
increasing annually. Fifteen per cent of solicitors are 2012. The Act, which set up a new framework of regu-
from ethnic minority backgrounds. Solicitors are the lation for legal services in England and Wales, is prob-
first point of contact for a client with a legal problem. ably the most significant reform of legal services ever
Unlike barristers, solicitors can form partnerships and to have been made. Part 1 of the Act sets out the Act’s
some of the partnerships are very large. eight regulatory objectives, namely:
2.5 The legal profession  57

(a) protecting and promoting the public interest; The matters set out in s.12(1)(e) and (f) can be car-
(b) supporting the constitutional principle of the rule ried out by notaries and commissioners for oaths
of law; respectively. Licensed conveyancers and lawyers will
(c) improving access to justice; have the right to charge for conveyancing. With very
(d) protecting and promoting the interests of minor exceptions, lawyers will have the exclusive right
consumers; to carry out the matters set out in s.12(1)(a), (b) and
(e) promoting competition in the provision of (d). In summary, these matters are advocacy in court,
services; formally conducting litigation, and charging for the
(f) encouraging an independent, strong, diverse and preparation of probate papers.
effective legal profession; Part 5 of the Act, which came into force in 2009,
(g) increasing public understanding of the citizen’s allows Legal Disciplinary Practices to be set up as
legal rights and duties; companies, partnerships or limited liability partner-
(h) promoting and maintaining adherence to the pro- ships. Within LDPs, solicitors can be in business with
fessional principles, which are set out in s.1(3). non-solicitor partners and non-lawyer managers.
(However, managers must be solicitors, barristers,
The professional principles set out in s.1(3) require
notaries, licensed conveyancers, legal executives,
‘authorized persons – those who can offer ‘reserved
patent agents, trade mark agents or law costs drafts-
legal services – to act with independence, integrity
men.) This allows expertise to be brought into a busi-
and confidentiality; to maintain proper standards of
ness, increasing its ability to provide a one-stop service
work; to act in the best interests of clients and to act
to customers. It also allows non-solicitors to provide
in the best interests of justice when litigating in court.
capital to businesses which provide legal services. As
Part 2 of the Act has created a Legal Services Board
from September 2012, all LDPs with non-lawyer man-
(LSB), which aims to maintain and develop standards
agers have needed to register as Alternative Business
relating to the regulation, education and training of
Structures (ABS).
those who can offer reserved legal services, that is to
Since October 2011, legal service providers have
say of the legal profession. The LSB has a duty to pro-
been able to operate as ABS, trading as companies,
mote the eight regulatory objectives set out in Part 1 of
partnerships or LLPs. In an ABS, lawyers and those
the Act, and to establish a Consumer Panel. It is inde-
without legal qualifications can work together to pro-
pendent from the Law Society and the Bar Council,
vide both reserved legal activities and other services.
which are now called ‘front-line’ legal regulators.
In such businesses non-lawyers are able to exercise
Part 3 of the Act sets out the ‘reserved legal activi-
professional, management and ownership roles. As
ties’ which can be carried out only by lawyers, or in
long as an ABS has been licensed by an approved regu­
some cases by notaries or commissioners for oaths.
lator, such as the Law Society, it can offer ‘reserved
The reserved legal activities, set out in s.12(1), are as
legal activities’, which need to be carried out by law-
follows:
yers. However, any other activities can be carried out
(a) the exercise of a right of audience before the by those who are not legally qualified. It seems very
courts; likely that many non-traditional legal services pro-
(b) the conduct of litigation, which includes the com- viders will employ non-lawyers to carry out much of
mencement, prosecution and defence of proceed- the background work which was traditionally carried
ings before a court; out by lawyers. This has caused several distinguished
(c) reserved instrument activities under the Land commentators to fear that lawyers, if they are to be
Registration Act 2002; able to compete, will have to give up much of the
(d) probate activities: charging for the prepara- work which they have traditionally done, or accept
tion of probate papers which found or oppose much reduced salaries for doing it. Businesses such
either a grant of probate or the grant of letters of as the Co-op and BT have gained licences to trade as
administration; ABS. The Co-op aims to employ 3 000 staff, most of
(e) notarial activities which are customarily carried them lawyers, by 2018. If it achieves this it would be
out by a notary; the largest legal firm in the UK. Lawyers will prob-
(f) the administration of oaths by exercising powers ably have to change their outlook and their business
conferred on commissioners of oaths. structures to compete effectively. A Sweet & Maxwell
58  Chapter 2  The courts and legal personnel

survey conducted in 2012 found that 20 per cent of all is the Head of the Supreme Court. The Lord Chief
the top 100 legal firms planned to become licensed as Justice is responsible for representing the views of the
ABS. However, it should be remembered that the LSA judiciary to Parliament. The Master of the Rolls, who is
does not provide for complete deregulation of legal the second most senior judge, is ‘Head of Civil Justice’.
services providers. Any new ABS still needs to apply The President of the Family Division of the High Court
for a licence if any non-lawyer has a material inter- is the ‘Head of Family Justice’. The Vice-Chancellor is
est in the ABS or is able to control it. A licence will the ‘Chancellor of the High Court’.
be granted only to businesses which are competent to Apart from the judicial offices outlined in the previ-
provide legal services. Furthermore, any non-lawyer ous paragraph, there are five main levels in the ­judicial
who owns more than 10 per cent of an ABS is subject hierarchy. Supreme Court justices sit as judges in the
to a fitness-to-own test. It should also be remembered Supreme Court, which was formerly the House of
that the demise of the legal profession was widely Lords. As we saw in the previous chapter, precedents
predicted, not least by the profession itself, when in made by the Supreme Court are binding upon all
the late 1980s solicitors lost their monopoly rights to English courts. Lords Justices of Appeal sit in the
write wills and practise conveyancing. Such predic- Court of Appeal. As decisions of the Court of Appeal
tions have been proved spectacularly wrong. are generally binding on future sittings of the Court
The LSA 2007 is intended to allow non-lawyers to of Appeal, and are binding on all inferior courts, the
do much of the work currently done by lawyers and Court of Appeal is perhaps the most significant court
thereby to lead to innovation, price reductions and in terms of creating the law. There are currently 38
greater access to legal services. The extent to which Lords Justices of Appeal and 12 Law Lords. There are
it will achieve these objectives will not be known for also 110 High Court judges, who sit in the High Court
some years. and sometimes in the Crown Court.
It is convenient to consider the judges who sit in
the High Court, the Court of Appeal and the Supreme
2.6 The judiciary Court as distinct from judges who sit in lower courts.
The High Court is generally not an appellate court,
Before 2005 the Lord Chancellor was a cabinet min- but a court of first instance. However, in deciding a
ister, a House of Lords judge and the head of the case a High Court judge is likely to be very aware of
judiciary. The Lord Chancellor’s Department was a any precedent he is making, as well as being aware of
Government Department and several Lord Chancellors his duty to try the case fairly. The Court of Appeal and
took a leading political role within the Government of Supreme Court do not try cases but only hear appeals.
the day. The fact that the head of the judiciary was also The further up the hierarchy the judge is sitting, the
the Head of a Government Department and a Cabinet more importance he is likely to attach to the precedent
minister meant that the Lord Chancellor was promi- which he is creating.
nent in the legislature, the judicature and the execu- There are currently 640 circuit judges who try
tive. The Lord Chancellor’s role therefore breached the criminal cases in the Crown Court and civil cases in the
theory of the separation of powers. Consequently, the county court. In the Crown Court these c­ ircuit judges
Lord Chancellor’s Department became the Department are assisted by 1 126 recorders. In the county court
of Constitutional Affairs, which in turn has become the they are assisted by 438 district judges and around 720
Ministry of Justice. The Lord Chancellor remains a deputy district judges. Circuit judges, recorders and
member of the Cabinet but is no longer the head of the district judges do not create precedents. Their role is
judiciary. His role is to defend judicial independence, therefore confined to trying the cases which they hear.
give the judiciary the support they need to be able to They supervise the proceedings in court, and in civil
exercise their functions, have regard to the needs of cases decide the facts of the case if they are in dispute
the public interest with regard to matters relating to and award damages and costs. In criminal cases in
the judiciary and to ensure that there is an efficient which a judge sits the facts will be decided by the jury,
and effective system to support the carrying on of the but the judge will supervise the proceedings. He will
business of the courts of England and Wales. also pass sentence if the accused is convicted and sum
The Lord Chief Justice is the head of the judiciary of up the law to the jury, so that they can reach the cor-
England and Wales. However, the most senior judge of rect verdict.
2.6 The judiciary  59

Judges are appointed from the ranks of successful 2.6.1 Judicial review
lawyers. Prior to 1990 only barristers could become
Judicial review is a legal procedure which allows the
judges, but now solicitors who have acted as advocates
Administrative Court in London to examine whether
in the higher courts are also eligible. Judges are well
a public law decision, or the exercise of discretionary
paid. The Lord Chief Justice currently earns a salary
power by a public body, is legal. The definition of pub-
of £247 112, High Court judges earn £177 988 and cir-
lic body for these purposes is quite wide. It includes
cuit judges in the provinces earn £132 184. These sal­
Government Ministers and has been held to cover
aries are necessary to tempt suitably qualified lawyers
decisions of private bodies which make decisions that
to become judges and to ensure that judges maintain
affect the public.
their independence when hearing cases.
An application for judicial review will be subject to an
Judges must now retire at 70 and are subject to
initial filtering process. The applicant (who can be either
training organised by the Judicial Studies Board.
a person directly affected by a public law ­decision, or a
However, the retirement age can be extended to the
pressure group representing people who are affected)
age of 75 on a year-by-year basis. The judgment of any
has first to apply for permission to proceed. On the
precedent-making judge could well be scrutinised by
application for permission to proceed the judge will be
academics, lawyers and other judges. In the light of
checking for the existence of the following criteria:
this scrutiny, if a senior judge were not up to the high
standard required this would soon become apparent. (a) Whether the decision itself is amenable to judicial
About 98 per cent of all criminal cases are decided in review.
the magistrates’ court, rather than in the Crown Court. (b) Whether there is either express or implied exclu-
Most magistrates are lay magistrates, meaning that they sion of judicial review (i.e. whether Parliament has
are not legally qualified. However, there are currently specifically enacted that such a decision should
142 district judges (magistrates’ courts), formerly known not be reviewed).
as stipendiary magistrates and over 125 deputy district (c) Whether the appliant has a sufficient legal interest­
judges (magistrates’ courts). Only lawyers can qualify as to sue.
district judges (magistrates’ courts) and they are paid a (d) Whether there are grounds for judicial review.
salary of £106 040 if they work outside London.
With regard to the last criterion the grounds for ­judicial
There are around 23 000 lay magistrates, who are
review were set out by Lord Diplock in CCSU v Minister
not paid a salary. Although they are not legally quali-
for the Civil Service [1985] AC 374, commonly referred
fied, upon appointment lay magistrates do receive
to as the GCHQ case. Lord Diplock stated that there are
training on matters such as decision-making, stereo-
three main grounds for review: illegality, irrationality
typing and avoiding prejudice. Magistrates generally
and procedural impropriety. It is important to bear
sit as a bench of three, and are advised about the law
in mind, however, that the grounds are not mutually
by the legally qualified clerk of the court. As well as
exclusive.
deciding whether or not a person accused of a crime is
Where the Administrative Court finds that a
granted bail, magistrates try cases, deciding whether
decision­is not legal (on any one or more of the above
an accused is innocent or guilty, and pass sentence on
grounds) the court can grant one or more of the fol-
those who are convicted. They also conduct commit-
lowing remedies:
tal proceedings when a defendant is committed for
trial to the Crown Court. Lay magistrates must live or (a) a quashing order, formerly known as certiorari: an
work in the area in which they serve, must have a good order that acts to quash the original decision;
knowledge of the local community, must be of good (b) a mandatory order, formerly known as mandamus:
character and have personal integrity. They must be an order that compels the decision-maker to do
between the ages of 18 and 65. Most people are eligi- something;
ble to become magistrates, but those in the police or (c) a prohibiting order, formerly known as prohibition:
the armed forces are not. an order which prevents a decision-maker from
Of the judges in post in 2011, 24.5 per cent were embarking on a course of action which is not legal;
women and 5.6 per cent were black or from an ethnic (d) make a declaration: this is nothing more than
minority. In 1998 the figures were 10.3 per cent and the court stating the legal position between the
1.6 per cent respectively. parties;
60  Chapter 2  The courts and legal personnel

(e) award damages: but only where there are also pri- for eight months for contempt of court. The Criminal
vate law issues involved or it involves a case under Justice and Courts Act 2015 now includes measures to
the Human Rights Act 1998; prevent jury misbehavior. Section 69 allows a judge to
(f) issue an injunction: although an order for manda- order jurors to surrender their electronic communica-
mus is more common in judicial review proceedings. tion devices for an appropriate time, such as when they
are in court. Failure to comply would be punishable
Judicial review has become increasingly important in
as contempt of court. Section 70 creates an offence of
recent years as the number of applications has increased
‘juror research’, which is committed by seeking infor-
dramatically. Businesses are increasingly either applying
mation about the case during the trial period. Section
for judicial review or are subject to judicial review pro-
72 makes it an offence for a juror to pass on information
ceedings. A business might apply, for example, on the
obtained through research to another juror where the
grounds that a decision taken by a Government Minister
information was not provided by the court. Section 73
affects the running of the business. Even private compa-
makes it an offence for a juror intentionally to engage in
nies may be subject to judicial review proceedings if their
‘prohibited conduct’ during the trial period. Prohibited
decisions have an effect upon the public. It is important
conduct is defined as conduct from which it may rea-
to remember that judicial review is not concerned with
sonably be concluded that the juror intends to try the
the merits of the decision in question, it is concerned
case otherwise than on the basis of the evidence pro-
with whether or not that decision was legally taken.
vided by the court. It does not matter whether the juror
knows that the conduct is prohibited conduct.
2.7 Juries Citizens between the ages of 18 and 70, who are on
In the Crown Court the jury decides whether the the electoral roll and have lived in the United Kingdom
accused is guilty or not guilty. This decision is based on for five years, can be required to serve as jurors and can be
the judge’s summing up, which explains the relevant fined up to £1 000 for failing to serve. However, mentally
law to the jury. It is therefore said that juries decide disordered persons are exempt from jury service. Persons
the facts of the case. A judge can direct a jury to acquit who have been sentenced to a term of imprisonment of
an accused, but cannot direct them to convict. Juries more than five years are permanently disqualified. Those
do not give an explanation for their decisions. If a jury who received lesser sentences may be temporarily dis-
acquits, an appeal cannot overturn this acquittal. This qualified. All professionals, including judges and doctors,
enables juries to bring in ‘perverse acquittals’ if they are now eligible for jury service. However, the court has a
think that the circumstances of the case so demand. discretion to excuse individuals who can provide a good
Jurors may sometimes be discharged during a trial if reason why they should not serve. Both the prosecution
they become ill or otherwise incapable of continuing and the defence have a right to challenge any number of
to serve, but the number of jurors must not fall below jurors ‘with cause’, that is to say if it can show that there
nine. Majority verdicts are acceptable, but at least ten is a substantial reason why a particular juror should not
out of 11 or 12 jurors must agree, or at least nine out try a particular case. A juror’s race, religion, occupation
of ten. A jury which falls to nine members cannot give or politics is not to be regarded as a substantial reason.
a majority verdict. The judge should not readily accept Juries play little part in civil cases. This was not
a majority verdict but should first urge the jury to try to always so. In several cases we consider in this book, the
reach a unanimous verdict. If the jury is unable to reach appellate court was considering whether or not to over-
a verdict the case may be retried with a different jury. In turn the decision of a jury sitting in a civil court. Section
the past few years, problems have arisen because jurors 69 of the Supreme Court Act 1981 now limits civil jury
have used the Internet to help them with their delibera- trial to cases of defamation, malicious prose­cution and
tions. In R v Thompson and others [2010] EWCA Crim false imprisonment and cases where fraud is alleged.
1623, [2010] All ER (D) (Sep), the Court of Appeal The judge has a power to deny the right to jury trial
held that at the beginning of a trial jurors should be spe- even in these cases if the examination of scientific or
cifically told not to use the Internet but to base their ver- technical documents would make a jury inappropriate.
dict on the evidence presented to them in court. In June Where a jury is used in a civil case the jury also awards
2011 a juror who contacted, via Facebook, a defend- damages. Furthermore, s.11 of the Defamation Act
ant who had already been acquitted, thereby causing 2013 provides that in defamation cases trials should be
a multi-million pound drug trial to collapse, was jailed without a jury unless the court orders otherwise.
2.8 Law Reform  61

2.8 Law Reform between 1275 and 1535. These reports are very scanty
and are never quoted in court. The Private Reports
Parliament and the judiciary are, of course, the main made between 1535 and 1865 vary tremendously in
reformers of the law. The system of precedent operates quality, depending upon who the reporter was. Since
in a relatively haphazard way. It depends upon appropri- 1865 the Modern Reports have been published by the
ate cases being brought in front of courts which have the Incorporated Council of Law Reporting for England
power to make new rules of law. For this reason certain and Wales. The Council is not a Government agency,
law reform bodies have been created. The most significant but a non-profit-making charitable organisation.
of these is the Law Commission. Its role is to keep under Since 1891, the Council’s reports have been known as
review all the law with which it is concerned, with a view the Law Reports, which are divided into four series.
to its systematic development and reform. In particular it A series known as Appeal Cases report the decisions of
should attempt to codify the law, to eliminate anomalies, the House of Lords (now the Supreme Court) and the
to suggest the repeal of ­outdated and unnecessary Acts, Privy Council. The other series are known as Queen’s
to reduce the ­number of separate Acts and to generally Bench, Family Division or Chancery Division. The
simplify and modernise the law. The chairman of the Law areas which these reports cover is self-explanatory,
Commission is a High Court judge and the five full-time although they are not restricted to decisions of the rel-
commissioners are lawyers seconded for five years at evant Divisions of the High Court, but may also cover
a time. Other lawyers act as part-time com­missioners. appeals in the Court of Appeal or Supreme Court.
Reforms suggested by the Law Commission can be ena­ Throughout this book case references are shown.
cted by Parliament either in part or in whole. However, Since 1891, the Law Reports have shown the year in
many reforms suggested are never enacted at all. The which the case was reported in square brackets. In
Contracts (Rights of Third Parties) Act 1999, ­considered Chapter 1 we considered Adler v George [1964] 2 QB
in Chapter 4 at 4.2.2.2, provides an example of a statute 7. In order to find this law report it is first necessary to
which enacted a Bill proposed by the Law Commission. find the Queen’s Bench Law Reports. Then it is necess­
The Law Reform Committee is a part-time body ary to find volume 2 of the 1964 reports. The case is
which considers the reform of civil matters referred reported on page 7 of Volume 2. A law report will indi-
to it by the Lord Chancellor. The Committee does not cate the court in which the case was heard. (Adler v
meet regularly, but its reports have tended to be very George was heard in the Queen’s Bench Division of the
thorough. The Criminal Law Revision Committee High Court.) It will indicate the judges who heard
examines matters of criminal law when asked to do the case (Lord Parker CJ, Paul and Widgery JJ). Then
so by the Home Secretary. It too is part-time, but its the facts of the case and the decision are set out very
reports have led to the passing of significant legis­ briefly. After a fairly detailed description of the facts
lation, such as the Theft Act 1968. and the arguments put forward, the judgments of the
Royal Commissions have been set up to consider various judges are set out. The Council also puts out
various administrative reforms. The Woolf Committee, a series of Weekly Law Reports, which appear more
which proposed the changes to legal procedure out- quickly than the Law Reports.
lined above at 2.3, provides a good example. It should Since 1936, Butterworths (now LexisNexis UK)
also be borne in mind that when the Government is pro- have published the All England Law Reports. These
posing legislation it may first produce its suggestions in do not set out the arguments put forward by the law-
a green paper, which invites discussion and comment. yers. Important cases decided prior to 1936 are set out
After receiving these comments the Government pub- in 36 other volumes of the All England Law Reports.
lishes a white paper, in which definite proposals are set Specialist reports published by various bodies deal
out. In this way, suggestions as to the reform of the law with various specialist matters. There are, for instance,
are invited from a wide body of persons. Road Traffic Reports, Industrial Relations Law Reports
and Reports on Tax Cases.
2.9 Law reporting Many of the decisions made in the higher courts
are not reported. Unreported cases of the Court
The system of judicial precedent is dependent upon a of Appeal can be found in a Butterworth database
good system of law reporting. The first law reports are known as Lexis. Such cases can only be cited in the
contained in the Year Books, which reported on cases Supreme Court with permission from that court.
62 Chapter 2 The courts and legal personnel

Unreported cases of the House of Lords can be found relevant to that phrase. (It is also possible to search
in the Record Office of the House of Lords. The law for academic articles relating to the phrase although,
reporters decide whether or not a case is worthy of technically, this is not law reporting.)
being reported.
Law reporting has been revolutionised in the past Test your understanding 2.3
few years, as decisions have become available electron-
1 What are the main roles of practising barristers?
ically. There is now little need to visit a law library to
find a reported case if one has access to online report- 2 What are the main roles of solicitors?
ing. Some cases, such as Supreme Court and House of 3 Can a member of the public directly engage a
Lords decisions, are available on the Internet at www. barrister to argue a case in court?
parliament.uk. Very many decisions are reported elec- 4 Which judges make precedents?
tronically by business organisations and are available 5 What is the difference between lay magistrates
to private subscribers. Most UK universities subscribe and district judges (magistrates’ courts)?
to these private reports and, generally, students have 6 What is judicial review?
access to them. Electronic law reporting has a further
7 What is the function of a jury? In which courts
advantage over hard-copy reporting in that a person are juries used?
who wants to know if the law in a certain area has
8 What are the official law reform bodies?
changed can type a phrase into a reporting site and
9 What are the Law Reports?
the site will then reveal any recent cases which are

Key points

The structure of the courts ■ The Supreme Court hears appeals from the
■ A civil case might be tried in the county court or Divisional Court and from the Court of Appeal
in the High Court. (Criminal Division).
■ There is a presumption that a case over which
both the county court and the High Court have Procedure in the courts
jurisdiction will be heard in the county court. This ■ The Civil Procedure Act 1997 and the Civil
presumption can be rebutted if the case is particu- Procedure Rules 1998 have radically changed civil
larly complex or involves issues of importance to procedure, in an attempt to enable the courts to
the general public. deal with cases justly.
■ The Court of Appeal (Civil Division) hears ■ The judge has now become the case manager,
appeals from the High Court. The High Court hears with wide powers to run the case. Before the reforms
most appeals from the county court. the case was to a large extent run by the litigants.
■ The Supreme Court hears appeals from the Court ■ Civil cases will be allocated to one of three tracks
of Appeal (Civil Division). It also very occasionally (the small claims track, the fast-track or the multi-
hears appeals from the High Court when the leapfrog track), depending upon the amount of the claim,
procedure is invoked. the complexity of the case and the need for expert
■ Indictable offences are tried in the Crown Court. evidence.
Summary offences are tried in the magistrates’ ■ A defendant upon whom a claim has been
court. Either way offences can be tried in either the served may ignore it (and therefore have judgment
Crown Court or the magistrates’ court. entered against him), admit the claim in full, admit
■ When a case is first tried in the magistrates’ part of the claim, file an acknowledgement of ser-
court appeals on points of law can be made by way vice (thereby getting an extra 14 days in which to
of case stated to the Divisional Court. An appeal reply), file a defence and/or file a counterclaim.
against sentence or conviction lies from the magis- ■ Claims on the small claims track will be heard in
trates’ court to the Crown Court. the county court, generally by a district judge.
■ The Court of Appeal (Criminal Division) hears ■ Fast-track claims should be decided within 30
appeals from the Crown Court. weeks of allocation.

Multiple choice questions 63

■ All cases will be subject to extensive case man- ■ Barristers act as advocates in all courts, draft
agement by the judge. opinions and draft statements of case.
■ Solicitors act as general legal advisors. They can
Alternative dispute resolution act as advocates in the magistrates’ court or the
■ Litigation has several disadvantages. It is costly, county court. If qualified they can act as advocates
slow, complex, worrying and conducted in public. It in higher courts.
is also likely to finish any business relationship with ■ High Court judges, Court of Appeal judges and
the other party. Supreme Court justices make precedents. Circuit
■ Disputes may be referred to arbitration by the judges do not.
parties, by a court or by an Act of Parliament. If a ■ District judges (magistrates’ courts) are salaried,
dispute is referred to arbitration it is resolved by an legally qualified magistrates. Lay magistrates are
arbitrator rather than by a court. not legally qualified and sit as a bench of three.
■ A mediator communicates between the parties, ■ Judicial review is the process by which the
trying to get them to resolve their dispute. Administrative Court considers the legality of
■ Conciliation involves a conciliator suggesting decisions of public law and the legality of a discre-
to the parties the basis on which they might settle tionary power exercised by a public body.
their dispute. ■ Juries decide whether or not the defendant in a
■ Tribunals hear disputes on specialist matters, Crown Court trial is guilty or not guilty.
and these types of disputes must be referred to the ■ The Law Commission is a law reform body with
appropriate tribunal rather than to the ordinary full-time members. The Law Reform Committee
courts. Generally, a tribunal is made up of a legally and the Criminal Law Revision Committee are part-
qualified chairman and two lay members. time law reform bodies.
■ Law reporting is not done by the Government. The
miscellaneous matters most significant law reports are the All England Law
■ The legal profession is split into barristers and Reports and the Law Reports of the Incorporated
solicitors. Council of Law Reporting for England and Wales.

Summary questions

1 A Ltd is suing B Ltd, claiming contract damages 3 Explain the way in which a dispute can be referred
of £25 000. Y Ltd is contesting the claim. The claim is to arbitration and the powers which an arbitrator
not in respect of any personal injuries. In which courts has. How do mediation and conciliation differ from
might the case be tried? To which courts might an arbitration?
appeal be made, if all possible appeals were made? 4 By scanning the newspapers or the Internet, find
2 Explain the considerations which will be taken a recent case in which an application for judicial
into account in deciding the appropriate track for review was made. Outline the grounds on which
the hearing of a case. As regards each track, outline the application was made and the outcome of the
the procedures which are likely to be followed from application.
allocation to conclusion of the case.

Multiple choice questions

1 Which one of the following statements is not true? b An appeal from a master who is sitting as a High
a If a claim can be brought in either the county court Court judge will be made to a High Court judge,
or the High Court, there is a presumption that it rather than to the Court of Appeal.
should be heard in the High Court.

64 Chapter 2 The courts and legal personnel

c If an offence is classed as triable either way, an c Tribunals act as specialist courts, hearing certain
accused has the right to insist upon trial in the types of disputes which must be taken to the
Crown Court. appropriate tribunal rather than to the ordinary
d Lay magistrates are trained, but they can be courts.
appointed even if they have no special knowledge d A mediator will suggest the basis on which a
of the law. dispute might be resolved and try to get the
parties to agree to be legally bound by the
2 Which one of the following statements is not true?
suggested resolution.
a If a defendant upon whom particulars of claim are
served does not respond within 14 days, judgment 4 Consider the following statements.
can be entered against him. i A member of the public can directly instruct a
b If the defendant files an acknowledgement of barrister to represent him, without going through a
service he will be given a further 14 days to solicitor.
respond to the claim. ii Barristers can be appointed judges but solicitors
c An appeal from a district judge’s ruling on the cannot.
small claims track will always be made to the iii The process of judicial review allows the
Court of Appeal. Administrative Court to consider the merits of
d A fast-track case will generally be concluded decisions taken by public bodies.
within 30 weeks of allocation. iv Juries can acquit a defendant even if they are sure
that he is guilty.
3 Which one of the following statements is not true?
v Not all decisions of the precedent-making courts
a In a small claims case each side generally pays its are reported.
own costs.
Which of the statements are true?
b If a party tries to bring legal proceedings in respect
of a matter which it has been agreed should be a i, iii and iv only.
resolved by arbitration, the court will stay the b ii and iii only.
proceedings unless the arbitration agreement was c i, iv and v only.
either null and void, inoperative or incapable of d All of the statements.
being performed.

Task 2

Your employer has asked you to write a report, explaining briefly the following matters.
a The different courts in which a civil dispute might start and the courts to which an appeal might subsequently
be made.
b The three tracks to which a civil case might be allocated and the principles of case management which the
courts will apply.
c The main methods of dispute resolution which can be used as an alternative to going to court.
3
formation of contracts – offer and acceptance

Introduction
This chapter considers the following matters: 3.3.2 Best or reasonable endeavours
3.4 Offer and acceptance when dealing with
3.1 Offer machines
3.1.1 Invitation to treat 3.4.1 Offer and acceptance made over the
3.1.2 Advertisements Internet
3.1.3 Offers of unilateral contracts 3.5 Acceptance of an offer of a unilateral
3.1.4 Goods in shops contract
3.2 Acceptance 3.6 Termination of offers
3.2.1 The postal rule 3.6.1 Revocation
3.2.2 Counter offer 3.6.2 Rejection of offer
3.2.3 Auctions 3.6.3 Lapse of time
3.2.4 Tenders 3.6.4 Condition not fulfilled
3.3 Certainty 3.6.5 Death of offeror or offeree
3.3.1 Meaningless terms 3.7 Battle of the forms

3.1 Offer at least have seen it described in a catalogue. Neither


the examination nor the description in the catalogue
Almost all contracts are made through the process of amount to an offer.
offer and acceptance. One of the parties (the offeror) When the auctioneer comes to the lot in question,
makes an offer by proposing a set of terms with the let us call it Lot 1, he probably makes a brief descrip­
intention that these terms will form a legally binding tion of it to make sure that the bidders know which
agreement if they are accepted by the party to whom lot is up for sale. Then the auctioneer asks for bids. He
they are proposed, the offeree. If the offeree accepts, usually suggests a price. None of these actions of the
by indicating that he too is willing to be bound by the auctioneer amount to an offer.
terms proposed, a contract will result. The offer can be When one of the bidders signifies that he is mak­
written or spoken, or it can be inferred from the con­ ing a bid (by raising his hand, or nodding, or making
duct of the offeror. When goods are bought at auction whatever other gesture the auctioneer recognises)
both the offer and the acceptance are made by con­ this, at last, is an offer. It is the first move of legal
duct. The sale of a lot at auction can provide a good significance and as such it is not a move to be made
initial example of how an offer is made and of how it lightly. If the offer is accepted then the bidder will have
is accepted. made a contract to buy Lot 1 and will be legally bound
Let us assume that Mrs Ashley buys an antique vase by that contract.
at an auction conducted by Mr Bower. Mrs Ashley, if she The auctioneer will be in no hurry to accept the first
is sensible, will have examined the vase beforehand or bid. Let us assume that several higher bids are made,
66  Chapter 3  Formation of contracts – offer and acceptance

but that eventually Mrs Ashley makes a bid of £100 Making an offer carries an element of risk. A busi­
and that this appears to be the highest bid which is ness, for example, should not offer to sell an asset for
going to be made. The auctioneer will probably repeat £1 000 unless it is quite sure that this is what it wants
the figure £100 several times and then, after a slight to do. If the person to whom the offer was made,
delay, he will bang his hammer on the table. the offeree, were to accept the offer then the busi­
At the precise moment that the auctioneer’s ham­ ness would have to hand the asset over in return for
mer hits the table the acceptance is made and the con­ the money or accept the legal consequences. But it
tract is concluded. would be quite safe for the business to make an invi­
While the hammer was descending towards the table, tation to treat. It might do this by inquiring of another
Lot 1 still belonged to the person who had asked the  how much he would be prepared to pay for the asset.
auctioneer to sell it. But as soon as the hammer hit Whatever the reply, the business could not be forced
the table the contract was made. As the contract was for the to sell.
sale of specific goods in a deliverable state, ownership In deciding whether or not one party made an offer
of Lot 1 would immediately be transferred from the per­ to another, a court will be guided by the intentions of
son who put the vase into the auction to Mrs Ashley. the parties. These intentions will be deduced from all
The fact that the contract has now been made has the circumstances of the case.
important legal consequences. Mrs Ashley is now free
to do as she pleases with Lot 1, but she is no longer free
3.1.2 Advertisements
to change her mind and say that she does not want to
buy it. (Nor, of course, can the auctioneer say that he The legal status of advertisements is of considerable
no longer wants to sell.) If Lot 1 is damaged after the importance. If an advertisement amounts to an offer,
contract has been made then it is Mrs Ashley whose then people who respond in such a way that they
property has been damaged and it is she, not the seller, accept the offer will have made a contract. If an adver­
who would have the right to sue the person caus­ tisement is only an invitation to treat, as is usually the
ing the damage. If the lot had been damaged before case, a response to the advertisement cannot form a
the hammer hit the table, no contract would yet have binding contract. In the following case the court had
been made and it would have been the seller on whose to decide whether an advertisement which described
behalf the auctioneer was acting whose property goods, and the price for which they could be pur­
would have been damaged. chased, was an offer or an invitation to treat.
This example of the sale of a lot at an auction is
a useful one because the offer and acceptance are
well established and easy to recognise. The classi­ Partridge v Crittenden [1968] 1 WLR 1204
cal approach to the formation of contracts holds that
The defendant was charged with unlawfully offering for
every other type of contract is made when an offer is
sale a bramblefinch contrary to s.6(1) of the Protection
accepted. However, it is not always so easy to see what of Birds Act 1954. The defendant had placed an adver-
the offer and acceptance were. In exceptional cases a tisement in the classified section of a magazine. This
court may hold that a contract existed even though it advertisement had said, ‘Quality British . . . bramble-
is not possible to identify a definite offer and a defi­ finch cocks, bramblefinch hens . . . 25 s. each’. The
nite acceptance. But this can only happen if the court words ‘offers for sale’ were not directly used in the
is satisfied that the parties reached agreement on all advertisement. A customer posted a cheque for 25 shil-
material points. lings, requesting a bramblefinch hen. Such a bird was
sent to the customer in a box by British Rail.
Held. The defendant was not guilty. His advertisement
3.1.1 Invitation to treat
was an invitation to treat, not an offer. The defendant
The word treat has several meanings. In the context had not therefore ‘offered for sale’ a wild bird.
of the law relating to offer and acceptance it means
COMMENT (i) The defendant would have been
to negotiate. An invitation to treat is therefore an invi­
guilty of a different crime, that of selling a wild bird.
tation to negotiate, or an invitation to make a deal. The
Fortunately for him, this was not the crime with which
main significance of an invitation to treat is that it is
he was charged. ➔
not an offer.
3.1 Offer  67

(ii) This case is of course a criminal case, as are sev- used a smoke ball yet still caught flu they would be paid
eral of the cases which follow. In order to decide a £100 reward. The advertisement also stated that the
whether or not a criminal offence has been commit- defendant had deposited £1 000 in a Regent Street
ted it is often necessary to consider the civil law. This bank, ‘shewing our sincerity in the matter’. The claim-
is particularly true of crimes which are committed by ant, Mrs Carlill, bought one of the smoke balls on the
selling or offering for sale. strength of the advertisement. Despite using the smoke
(iii) Lord Parker, who gave the leading judgment, indi- ball properly, the claimant still caught flu. She claimed
cated that he felt that the defendant ought to be guilty the £100 reward. The defendants refused to pay on
of the offence. However, this had no influence on several grounds. First, it was claimed that the advertise-
his decision as to whether or not the advertisement ment was a mere sales puff rather than an offer. Second,
amounted to an offer. Lord Parker’s primary concern it was contended that a contract could not be made with
was with the consequences of the decision he was the whole world. Third, it was argued that the defend-
making. If, in their desire to convict the defendant, ant’s promises were too vague to be an offer.
Lord Parker and his fellow judge had decided that Held. The claimant had made a contract with the
the advertisement was an offer, then under the doc- company and was entitled to the £100 reward. The
trine of judicial precedent every junior judge would advertisement constituted an offer of a unilateral con-
have become obliged to follow this decision when tract which was made to the whole world. The offer
considering similar advertisements. (The doctrine of stipulated that acceptance could be made by using
judicial precedent is examined in Chapter 1 at 1.3.2.) a smoke ball in the correct manner and catching flu.
Lord Parker demonstrated how undesirable the con- The claimant had fulfilled these requirements and had
sequences of this might be by quoting with approval therefore accepted.
the following example concerning a wine merchant
who sends out a wine list to customers. The exam- COMMENT (i) A sales puff is a statement which pro-
ple was originally made by Lord Herschell in Grainger motes a product in a way which is not intended to be
and Son v Gough [1896] AC 325: taken to amount to a definite promise. Modern ex­amples
‘The transmission of such a wine list does not amount can be seen in the claims made by manufacturers of
to an offer to supply an unlimited quantity of the wine washing powders that their product washes whitest.
described at the price named, so that as soon as an The defendant’s reference to the £1 000 having been
order is given there is a binding c
­ ontract . . . If it were de­posited in the Regent Street bank indicated to the court
so, the merchant might find himself involved in any that the promise of the reward was not a mere sales puff.
number of contractual obligations to supply wine (ii) The case illustrates that an offer can be made to
of a particular description which he would be quite the whole world. In reward cases this is not uncom-
­unable to carry out, his stock of wine of that descrip- mon. Offers are more usually made to one person or
tion being necessarily limited.’ to a group of people. An offer can only be accepted
by an offeree, a person to whom it was made (or by
an agent acting on an offeree’s behalf). The defend-
Although the advertisement in Partridge v Crittenden ant’s argument that if the court found for Mrs Carlill
was classified as an invitation to treat, it is possible for this would have meant that a contract was made with
an advertisement to amount to an offer. If the general the whole world was exposed as a fallacy by Bowen
rule that advertisements are only invitations to treat LJ. The offer was made to the whole world but this
were to be applied rigidly to all advertisements then did not of course mean that a contract was made with
this would lead to unfairness, as the following case the whole world. A contract was only made with that
demonstrates. limited portion of the public who accepted the offer.
(iii) The offer was not considered too vague. Bowen LJ
reached this conclusion by giving the advertisement
Carlill v The Carbolic Smoke its plain meaning as the public would understand it.
Ball Company
[1893] 1 QB 525 (Court of Appeal)

The defendant claimed that the smoke balls they manu- 3.1.3 Offers of unilateral contracts
factured cured many illnesses and made it impossible
Almost all contracts are bilateral (two-sided) because
to catch flu. They advertised the smoke balls heavily,
both sides make a contractual promise to the other. If,
stating that if anyone could show that they had correctly
for example, a farmer telephones a dealer and makes
68  Chapter 3  Formation of contracts – offer and acceptance

a contract to buy a new combine harvester, this is a ‘. . . in the case of an ordinary shop, [one in which
bilateral contract. The dealer has promised to trans­ there is no self-service] although goods are displayed
fer ownership of the combine harvester to the farmer and it is intended that customers should go and choose
and the farmer in return has promised to pay the price what they want, the contract is not completed until,
agreed. the ­customer having indicated the articles which he
However, a person who makes an offer of a uni­ needs, the shopkeeper, or someone on his behalf,
lateral contract agrees to be bound if the offeree per­ accepts that offer.’
forms some act, rather than if the offeree promises The other members of the Court of Appeal seemed
to perform some act. Although the offeror does not to regard this point of view as self-evidently correct,
always spell it out so specifically, in effect he says, ‘If although none of them identified the precise way in
you do one thing, then I promise that I will definitely which the shopkeeper accepts the offer.
do another’. Indeed, such contracts are sometimes It is well established that the display of goods in a
called ‘if’ contracts, as they were for example by the shop window amounts only to an invitation to treat
Court of Appeal in Azevedo v Imcopa Importacao and not to an offer.
[2013] EWCA Civ 364. These contracts are more
formally called unilateral (one-sided) because only
Fisher v Bell [1961] 1 QB 394
one of the parties, the offeror, makes a promise.
The offeree cannot accept by promising to do the act The defendant displayed a flick knife in his shop win-
requested, but only by actually doing it. In Carlill’s dow. A ticket behind the knife said, ‘Ejector knife – 4s’.
case, the Smoke Ball Company promised that if Mrs The defendant was charged with the criminal offence
Carlill, or anyone else, used a smoke ball and caught of offering the knife for sale, contrary to s.1(1) of the
flu they would be paid the reward. But Mrs Carlill did Restriction of Offensive Weapons Act 1959.
not promise that she would catch flu, and presum­ Held. The defendant was not guilty of the offence. The
ably did not even intend to do so. She accepted by display of the knife amounted not to an offer to sell,
performing the acts requested – using a smoke ball but only to an invitation to treat.
and catching flu. Lord Parker: ‘. . . the display of an article with a price
A further peculiarity of unilateral contracts is that on it in a shop window is merely an invitation to treat.
acceptance of the offer does not need to be communi­ It is in no sense an offer for sale the acceptance of
which constitutes a contract. That is clearly the gen-
cated to the offeror. Mrs Carlill did not need to tell the
eral law of the country.’
company that she intended to accept the offer. Indeed,
her saying this would not have amounted to accept­
ance. The only way in which she could accept was by In the following case the Court of Appeal considered
fulfilling the requirements of the offer. That is to say the position as regards self-service shops.
she could only accept by using a smoke ball as directed
and catching flu. The company would not have been
Pharmaceutical Society of Great Britain v
aware of her acceptance until she claimed the reward.
Boots Cash Chemists (Southern) Ltd
As we shall see later in this chapter, a bilateral contract
[1953] 1 QB 401 (Court of Appeal)
is generally not legally binding until the acceptance is
communicated to the offeror. The defendants were charged with the criminal
offence of selling a listed drug other than by or under
the supervision of a registered pharmacist, contrary
3.1.4 Goods in shops
to s.18 of the Pharmacy and Poisons Act 1933. The
In order to analyse when a contract is concluded by defendants operated a self-service shop where the
a customer in a shop it is necessary to consider sep­ goods for sale were displayed on shelves around
arately those shops which operate a self-service sys­ the  walls. Customers entering the shop picked up
whatever goods they wished to buy and took them to
tem and those which do not. As regards shops which
a cashier near the exit. The goods displayed, includ-
do not operate a self-service system, Somervell LJ,
ing listed drugs, were wrapped in packages with the
in Pharmaceutical Society of Great Britain v Boots
prices marked on them. A registered pharmacist
Cash Chemists (Southern) Ltd [1953] 1 QB 401, was present near the cash desk and could prevent
explained the position in the following way:

3.2 Acceptance  69

a customer from buying any listed drug. The prose­ the defendants argued that the contract was not made
cution contended that the sale of the displayed goods in England and was not therefore within the jurisdic-
was completed when the customers put the goods tion of the English courts. The defendants claimed
into their baskets. If this contention was correct then that the acceptance was effective as soon as it was
the offence would have been committed whenever typed out on the telex machine in Holland and that the
customers put listed drugs into their baskets because contract was therefore made in Holland. The claimants
at this stage no pharmacist supervised or made the argued that the acceptance was not effective until it
sale. was printed out in London, and that the contract was
Held. The defendants were not guilty. The display therefore made in England.
of goods on the supermarket shelves amounted to Held. English law applied. A contract is complete only
an invitation to treat rather than to an offer to sell. when the acceptance is received by the offeror.
The customers’ action in taking the goods from the Lord Denning: ‘Suppose, for instance, that I shout an
shelves, placing them in their baskets and taking them offer to a man across a river or a courtyard but I do
to the cash desk constituted an offer to buy. The cus- not hear his reply because it is drowned by an aircraft
tomers’ offer to buy was accepted when the cashier flying overhead. There is no contract at that moment.
took the purchase price. The contract was therefore If he wishes to make a contract, he must wait until the
made under the supervision of a pharmacist and so no aircraft is gone and then shout back his acceptance
offence was committed. so that I can hear what he says. Not till I have heard
his answer am I bound.’

COMMENT (i) Lord Denning also explained that an


Test your understanding 3.1 acceptance by telephone would not be effective until
1 How does an offeror make an offer? it was heard by the offeror, but that this was only the
case if the offeree knew that the acceptance had not
2 What is the significance of an offer being
been heard. He suggested that if the offeror did not
accepted?
make it known that he had not heard the acceptance
3 What is an invitation to treat? then a contract would come into existence because
4 What is a bilateral contract? the offeror would be estopped (prevented) from say-
5 How is the offer of a unilateral contract made? ing that he had not received the message. He also
thought that this would be the case if the ink ran out
on a printer receiving the acceptance and the offeror
did not ask for the message to be repeated.
3.2 Acceptance (ii) The decision in Entores was approved by the
House of Lords in Brinkibon Ltd v Stahag Stahl
As soon as an offer is accepted, a contract comes into
und Stahlwarenhandelsgesellschaft GmbH [1983]
existence and both sides are legally bound. An accept­ 2 AC 34.
ance can be made by words or conduct. Unless the
offer was of a unilateral contract, or unless the postal
rule applies, the acceptance must be communicated to As an acceptance of an offer of a bilateral contract
the offeror. These two exceptions apart, the contract is only effective when it is received, it follows that the
is not completed until this communication is received. acceptance must take the form of some positive action.
This important principle is clearly demonstrated by An acceptance can be made by words or conduct but a
the following case. person cannot accept a contract by saying nothing and
doing nothing, even if the offeror has stipulated that
acceptance should be made in this way.
Entores Ltd v Miles Far East Corporation
[1955] 2 QB 327 (Court of Appeal)
Felthouse v Bindley (1862) 11 CBNS 869
The claimants, in London, telexed an offer to pur-
chase copper cathodes to the defendants in Holland. The claimant’s nephew thought that he had sold a
The defendants telexed acceptance back to London. horse to the claimant for 30 guineas (£31.50). The
Later, when sued for breach of contract in England, claimant thought that he had bought the horse for ➔
70  Chapter 3  Formation of contracts – offer and acceptance

provides that the consumer must not be charged more


£30. Realising that the mistake meant there was no
contract, the claimant wrote to his nephew offering than the basic rate, and that if he is the contract is to be
to split the difference. The claimant’s letter stated, ‘If treated as providing that the trader should reimburse
I hear no more about him, I consider the horse mine any excess. Section 3 of the 1971 Act allows a business to
at £30 15 shillings.’ The nephew wanted to sell at this refuse to pay a charge for being included in a trade direc­
price so he did not reply. Six weeks later an auctioneer tory, or to recover any payment made for being included,
sold the horse by mistake. The claimant sued the auc- unless a signed order is made on the stationery of the
tioneer in tort for selling his property. The auctioneer’s business to be included in the directory.
defence was that the horse still belonged to the claim-
ant’s nephew and that the wrongful sale of the horse 3.2.1 The postal rule
was therefore nothing to do with the claimant.
Held. The auctioneer was not liable. The claimant’s offer As we have already seen, it can be extremely important
to buy the horse for £30 15 shillings had never been to know exactly when an acceptance becomes legally
accepted and so the horse still belonged to his nephew. effective. Before the acceptance is made the offeror
can call the offer off, but once the acceptance has been
made this is no longer possible.
Some businesses try to sell their goods by sending them to When an offer is accepted by posting a letter the
people who have not requested them, and then following effect of the postal rule has to be considered. The rule,
up with aggressive demands for payment or the return which holds that the acceptance of an offer by post
of the goods. Felthouse v Bindley makes it plain that the
recipients cannot be deemed to have accepted the goods
Adams v Lindsell (1818) 1 B & Ald 681
merely because they do not return them. Section 2 of the
Unsolicited Goods and Services Act 1971 makes it a crim­ On Tuesday 2 September 1818 the defendants sent
inal offence to demand payment for unsolicited goods a letter to the claimants, offering to sell wool and
sent to a business. (Goods are unsolicited if they are sent requiring an answer by return of post. The defend-
to a person who has not made a prior request for them.) ants misdirected the letter and this caused it to be
Furthermore, reg.27A of the Consumer Protection from delivered at 7 pm on Friday 5 September. If the letter
Unfair Trading Regulations 2008 provides that in the case had not been misdirected it would have arrived on 3
of an unsolicited supply of goods, the consumer may, as September. The claimants posted an acceptance on
5 September. As this letter of acceptance was carried
between the consumer and the trader, use, deal with or
via London, it was not received by the defendants until
dispose of the goods as if they were an unconditional gift
9 September. If the defendants had not misdirected
to the consumer. These regulations also make it a crimi­ the letter containing their offer then a reply by return
nal offence to engage in inertia selling. Surprisingly, this of post would have arrived on 7 September. As they
legislation has not eradicated the practice of demanding had not received an acceptance by 7 September, the
payment for unsolicited goods. It seems that the basis of defendants sold the wool to a third party.
such ‘selling’ is that the goods sent are so worthless, and Held. There was a good contract on 5 September
the prices demanded so high, that the senders of the when the letter of acceptance was posted.
goods make a profit if only a small percentage of custom­
ers pay up. Regulation 40 of the Consumer Contracts COMMENT (i) To some extent the court was influ-
(Information, Cancellation and Additional Charges) enced by the fact that it was the defendants’ fault that
Regulations 2013 provides that in a contract between a the letter had been misdirected.
trader and a consumer, no payment is payable in addition (ii) In Household Fire Insurance Co v Grant (1879) 4
to the remuneration agreed for the trader’s main obliga­ Ex D 216, the Court of Appeal applied the postal rule
tion unless, before the consumer becomes bound by the in a case where the letter of acceptance was perma-
contract, the trader obtained the consumer’s express con­ nently lost in the post. The defendant’s letter agreed
sent. There is no such express consent if the consumer to buy 100 shares in a company. He paid 5 per cent
of the price of £100. A letter accepting his offer was
merely fails to change a default option, such as pre-ticked
posted but never received. The company went into liq-
box on a website. If any such extra payment is received
uidation. A good contract was formed when the letter
the contract is to be treated as providing that the trader was posted and the defendant was therefore obliged
should reimburse it. If a trader operates a helpline in to pay the remaining £95.
relation to contracts entered into with consumes, reg.41

3.2 Acceptance  71

acceptance which is equally expeditious is likely to be


(iii) In Henthorn v Fraser [1892] 2 Ch 27, the Court of
Appeal held that the rule would operate not only where valid, unless the offeror made it plain that the offer
the offer was sent by post, but whenever it would rea- had to be accepted in the precise way stipulated. Even
sonably be expected that an acceptance would be if the offeror does insist that acceptance can only be
made by post. Lord Herschell said that an acceptance made in the precise way stipulated, this requirement
would be effective when posted, ‘where the circum- can be waived by the offeror’s conduct.
stances are such that it must have been within the
contemplation of the parties that, according to the 3.2.2 Counter offer
ordinary usages of mankind, the post might be used as
a means of communicating the acceptance of an offer’. Acceptance of an offer must be unqualified and
unconditional. A response which proposes a material
(iv) The rule only ever applies to an acceptance of an offer.
A postal revocation of an offer is effective when received. alteration of the terms of the offer will amount to a
counter offer. The effect of such a counter offer will be
to revoke the original offer.
is effective as soon as the letter is properly posted,
originated in the early nineteenth century. In order to
understand the current effect of the rule it is necessary Hyde v Wrench (1840) 3 Beav 334
to examine several cases in their historical context. On 6 June 1840 the defendant offered to sell his farm
In order for the rule to apply the letter of acceptance to the claimant for £1 000. The defendant asked for
must have been properly addressed and properly posted. a reply by return of post as he had another buyer in
In Holwell Securities v Hughes [1974] 1 WLR 155 the mind. The claimant’s agent called on the defend-
Court of Appeal reviewed the postal rule. On 19 October ant and offered £950 for the farm on the claimant’s
1971 Dr Hughes had given Holwell Securities an option behalf. The defendant replied that he would need to
to purchase his house for £45 000. The option was said think about this and assured the agent that he was
to be exercisable ‘by notice in writing’ to the defendant not carrying on negotiations to sell to anyone else. On
within six months. On 14 April 1972 Holwell Securities 27 June the defendant wrote to the claimant’s agent
declining the offer of £950. On 29 June the claimant
posted a letter exercising the option, but the letter was
wrote back accepting the original offer to sell the farm
never delivered. No further communication was made
at £1 000. The defendant refused to sell at this price.
until the option expired on 19 April. Holwell Securities
Held. There was no contract. The claimant’s counter
sued for specific performance (a court order requiring
offer of £950 had revoked the defendant’s original offer.
Dr Hughes to sell the house to them). They argued that
the postal rule applied, and that a contract was therefore COMMENT It might seem strange that the coun-
created as soon as their letter was posted. The Court of ter offer was held to have revoked the original offer,
Appeal held that the rule did not apply and so there was but this must be the correct decision. If a business
no contract. The express terms of the offer (‘by notice in offers to sell an asset for a certain price and this offer
writing’) indicated that the acceptance had to reach the is rejected by the offeree making a counter offer, the
offeror to become effective, and so this made the postal business is likely to sell the asset to someone else.
rule inappropriate. Lawton L J also stated that the rule It would be very harsh if the offeree, having refused
would not apply where it would ‘produce manifest incon­ the original offer, could now accept it and make the
offeror liable for breach of contract.
venience and absurdity’. He went on to say:
‘In my judgment, the factors of inconvenience and
absurdity are but illustrations of a wider principle, The following case shows a modern example of the
namely, that the rule does not apply if, having regard counter-offer rule.
to all the circumstances, including the nature of the
subject-matter under consideration, the negotiating Pickfords Ltd v Celestica Ltd [2003]
parties cannot have intended that there should be a EWCA Civ 1741, [2003] All ER (D) 265 Nov
binding agreement until the party accepting an offer (Court of Appeal)
or exercising an option had in fact communicated the
acceptance or exercise to the other.’ The defendants hired the claimants to move busi-
ness property from Stoke-on-Trent to Shropshire.
If the offeror stipulates that acceptance should On 13  September 2001 the claimants faxed an
be made in a particular manner then any method of

72  Chapter 3  Formation of contracts – offer and acceptance

accepted by making the highest bid. Such a bid would


offer to do the work at a certain price per unit plus
ad­ditional costs such as insurance (the first offer). On not conclude a contract of sale between the bidder and
27 September the claimants sent a second offer to do the owner of the goods. It would make the auctioneer
the work for a fixed price, including insurance. On 15 liable to the highest bidder on a collateral contract.
October the defendants faxed a ‘confirmation’, which In Barry v Davies (T/A Heathcote-Ball & Co)
stated that the cost of the work would be capped at [2000] 1 WLR 1962 (Court of Appeal) two machines
£10 000. The work was performed and the defendants were put up for auction without a reserve price. The
paid the price based on the first offer. The claimants machines were each worth about £14 000 and the
argued that the price should have been as per the sec- auctioneer tried to get a bid of £5 000. The claimant
ond offer because the defendants had accepted this. bid £400 for the machines but the auctioneer refused
Held. The second offer was materially inconsistent to accept the bid. After the auction the machines
with the first offer and therefore revoked it. It was clear were sold to a third party for £3 000. It was held that
that the defendant intended to accept the first offer
the auctioneer had breached a collateral contract with
because reference to a ceiling price could not mean
the claimant and the claimant was awarded damages
that they were accepting the second offer, which set
of £27 600. (This was the difference between what the
a fixed price. However, because the first offer had
been revoked the defendant’s ‘confirmation’ fax was a claimant had bid and the amount he would have had
counter offer on the same terms as the first offer, with to pay to buy the machines elsewhere.) The auction­
the additional term that the price should be capped at eer’s promise that the machines would be sold without
£10 000. By carrying out the removal work the claim- reserve was the offer of a unilateral contract, given in
ants had accepted this counter offer. exchange for the claimant’s attending the auction and
making the highest bid.
If an auctioneer advertises that goods will be sold
‘without reserve’ this does not amount to a promise
3.2.3 Auctions
that the goods will be included in the auction or that
Earlier in this chapter we saw that when goods are sold the auction will definitely take place.
by auction the various bidders make a series of offers,
and that the auctioneer accepts the highest offer by
banging his hammer. Section 57(1) of the Sale  of Harris v Nickerson (1873) LR 8 QB 286
Goods Act 1979 states that each lot is taken to be the
subject of a separate contract of sale. Section 57(2) An auctioneer advertised in the London newspapers
that office furniture was to be sold by auction in Bury
confirms that a sale is complete when the auctioneer
St Edmunds. The advertisement stated that the high-
announces this by banging his hammer, or by some
est bidder would get the goods. The claimant travelled
other customary manner, and that until this time any to Bury St Edmunds from London, and bought several
bid can be retracted. lots. However, the office furniture which he intended
A sale by auction may be notified to be subject to to buy was not included in the auction. The claimant
a reserve price, beneath which the goods will not be sued for the expenses which he had incurred.
sold, and the seller of the goods may also expressly Held. The claimant had no remedy. The advertisement
reserve a right to bid for them (s.57(3)). However, if was merely an invitation to treat and did not amount to
the sale by auction is not notified to be subject to the a definite offer. It amounted to a declaration of inten-
right to bid by or on behalf of the seller, it is not law­ tion rather than a promise to put the goods up for sale.
ful for the seller to bid, or to employ any person to
bid for him, or for the auctioneer to take any such bid
(s.57(4)). A sale which contravenes s.57(4) can be It must be remembered that most lots at auction do
treated as fraudulent by the buyer (s.57(5)). have a reserve price. If this is the case then the auc­
When an auction is advertised as being ‘without tioneer will take bids in the normal way, but will
reserve’ this means that if the auction of a particular refuse to sell if the highest bid does not reach the
lot actually starts then the auctioneer makes an offer reserve price.
of a unilateral contract, promising that he will sell to For example, if a painting is put up for auction with
the highest genuine bidder, no matter how low that a reserve price of £50 then the auctioneer will not sell
bid might be. This offer of a unilateral contract can be to the highest bidder unless his bid is £50 or higher.
3.2 Acceptance  73

3.2.4 Tenders Many advertisements invite tenders to supply such


goods as the invitor might require within a certain
Both goods and services can be bought or sold by ten­
time. A tenderer who puts in a price at which the
der. As well as being an effective way of contracting
goods will be supplied for the whole period of time
at the best price, it is a business method particularly
makes what is known as a standing offer.
favoured by organisations (such as local authorities)
Such an offer can be accepted many times, and each
which must show that a contract was not gained as a
acceptance leads to a new contract. However, the offer
result of favouritism or corruption. The way in which
is only accepted when the person who invited tenders
the contract is formed can be understood by reference
actually orders goods, and the offer can be withdrawn
to an example.
before any particular order is made.
Let us assume that a local authority needs a supply
of school desks and that it places advertisements which
invite tenders to supply the desks. Whether this adver­ Great Northern Railway Company v
tisement will amount to an offer or an invitation to Witham (1873) LR 9 CP 16
treat will depend entirely on the words used.
If the advertisement merely asks for tenders to supply The claimants’ advertisement asked for tenders to
supply goods ‘such as they may think fit to order’ in a
1 000 desks of a certain description, then it will amount
one year period. The defendant put in a tender stating
only to an invitation to treat. A tenderer who responds
the price at which he would supply such quantities as
by submitting a tender to supply the desks at £40 each
the claimants might order within the period. The claim-
would be making an offer. The local authority might ants accepted this tender. After filling several orders
accept this offer, but it would not be bound to do so. the defendant, within the year, refused to fill one. The
Sometimes, however, the invitation to tender can claimants argued that the defendant had made a con-
itself be an offer. Let us suppose that an invitation to tract to fill the order.
tender invites bids for the sale of certain goods, and Held. The defendant had made a contract to fill that
states that the highest bid will definitely get the goods. particular order. He had made a ‘standing offer’ and
The invitation to tender would amount to the offer of each time the claimants made an order they accepted
a unilateral contract. The tenderer who submits the this offer.
highest price would be deemed to have accepted the
offer and to have made a contract to buy the goods. COMMENT The defendant could have withdrawn his
These principles are clearly demonstrated by the fol­ offer as regards future orders, even if the orders were
made within the one-year period. Such a revocation
lowing case.
of the standing offer would be effective when it was
received. Revocation would be allowed because the
defendant had been given no consideration in return
Spencer v Harding (1870) LR 5 CP 561 for keeping the offer open, that is to say he had been
given nothing of any value in return for doing so.
The defendants advertised that they would sell certain
(Consideration is considered in detail in Chapter 4.)
goods by tender. The advertisement began, ‘We are
instructed to offer to the wholesale trade for sale by
tender the stock-in-trade of Messrs. G. Eilbeck and
Co . . .’ and went on to state where the goods could In Harvela Investments Ltd v Royal Trust Co of
be viewed, the time at which the tenders would be Canada Ltd [1986] AC 207, the House of Lords had
opened and that payment would have to be in cash. to consider whether or not to allow ‘referential ten­
The claimant submitted the highest tender but the ders’. Such tenders state their price by reference to
defendants refused to sell to him.
other tenders. In the Harvela case two people wish­
Held. The defendants did not have to sell. Their adver- ing to buy shares were asked to put in a tender indi­
tisement asking for tenders was only an invitation to
cating the price they would pay. The seller promised
treat. The claimant had made an offer but the defend-
that the two tenders would be opened at the same
ants had no obligation to accept this. However, Willes J
time and that the highest bid would get the shares.
stated that the invitation for tenders would have been
the offer of a unilateral contract if it had gone on to The defendant put in a tender agreeing to pay
say, ‘and we undertake to sell to the highest bidder’. $2 100 000 or $101 000 in excess of any other offer. The
other tender was for $2 175 000. The House of Lords
74  Chapter 3  Formation of contracts – offer and acceptance

held that the referential tender was invalid because it certainty, exactly what has been agreed. It is a well-
defeated the whole object of fixed competitive tender­ established principle that a court will not write a con­
ing, the idea of which is that the amounts tendered are tract for the parties. In deciding whether or not an
confidential and unknown to the other tenderers. The agreement is sufficiently certain to amount to a contract
seller had shown a clear intention to sell and if both the courts do not consider the subjective views of the
sides made a referential bid this intention would have offeror and offeree. Rather they take an objective view
been defeated. The seller was not therefore entitled to by asking whether the reasonable person would have
accept the referential tender. The tender of $2 175 000 thought that the agreement was sufficiently certain.
was therefore successful. The advantage of this objective approach can be
In certain circumstances the mere fact of inviting demonstrated by considering an example. Let us sup­
tenders may give rise to a binding contractual obli­ pose that there is a dispute between X and Y. X made
gation to consider tenders properly submitted. an offer which Y accepted. Later X claims that there is
no contract because the meaning of what was agreed
is uncertain. Y maintains that the essential terms were
agreed with certainty and that there is a contract
Blackpool & Fylde Aero Club Ltd v
which X must perform. There is little point in a court
Blackpool Borough Council [1990] 3 All ER 25
considering the subjective opinions of X and Y as to
The defendants owned and managed an airport. whether or not the agreement was sufficiently certain.
Revenue was raised by letting this out to air operators Maybe both of the parties genuinely do believe what
who conducted pleasure flights. The claimant club had they maintain. If not, it is perfectly possible that they
held the concession for several years. The defendants will be prepared to give evidence in court that they do
sent invitations to tender for a new concession to the believe it. Plainly, therefore, many disputes could not
claimant club and to six other parties who were con- be resolved by looking at the subjective opinions of the
nected with the airport. Tenders were to be submitted
parties themselves. Instead the courts use the reason­
in envelopes supplied and were not to bear any mark
able person to look for the objective meaning of the
indicating who the tenderer was. The defendants stated
that only tenders received by 12 noon on 17 March 1983
contract. Reference to the reasonable person allows
would be considered. The claimants’ tender was put the court to ask not what the parties to the contract
into the defendants’ letter box at 11 am on 17 March. actually meant, but what they appeared to mean. If the
However, the letter box was not emptied at noon as it contract appeared to the reasonable person to be cer­
should have been. The claimants’ tender was regarded tain then it will be certain. If it did not appear to the
as late and was not considered. The claimants sued for reasonable person to be certain then it will not be.
damages for breach of contract, arguing that the coun-
cil had promised that if a tender was received before
the deadline it would be considered. Scammell and Nephew Ltd v Ouston [1941]
Held. The claimants were entitled to damages. In cer- AC 251 (House of Lords)
tain circumstances an invitation to tender could create
binding obligations to consider conforming tenders. A firm of furnishers wanted to acquire a new van
The circumstances of the case indicated that an offer on hire-purchase. Scammell agreed to supply a
of a unilateral contract had impliedly been made. This van priced at £286, allowing the firm £100 for an old
offer was made to the seven potential tenderers and van which was traded in. The agreement stated that
promised that if they submitted their tender in the cor- ‘this order is given on the understanding that the bal-
rect way then in return they would have their tenders ance of the purchase price can be had on hire pur-
opened and considered, along with any other tenders chase terms over a period of two years’. After some
which were considered. disagreements Scammells refused to supply the van,
claiming that the agreement was not certain enough to
amount to a contract.
Held. There was no contract between the parties. The
3.3 Certainty agreement as to hire-purchase terms was so vague that
it could not be given a definite meaning. The ­parties
A contract will come into existence only if the offer
would need to reach further agreement before there
which is accepted contains all of the essential terms could be a completed contract.
of the contract. A court must be able to identify, with
3.3 Certainty  75

In RTS Flexible Systems Ltd v Molkerei Muller


Sudbrook Trading Estate Ltd v
GmbH [2010] UKSC 14, [2010] 1 WLR 753, the
Eggleton [1983] AC 444 (House of Lords)
Supreme Court had to decide whether a contract
A lease gave the tenant an option to buy the land abso- existed and, if so, on which party’s terms. Lord Clark,
lutely, ‘at such price, not being less than £12 000, as delivering the judgment of the court, said:
may be agreed upon by two valuers one to be nomi­
‘The general principles are not in doubt. Whether
nated by the lessor and the other by the lessee and
there is a binding contract between the parties and,
in default of such agreement by an umpire appointed
by the . . . valuers’. The tenant exercised the option to if so, upon what terms depends upon what they
purchase but the landlord refused to appoint a valuer. have agreed. It depends not upon their subjective
state of mind, but upon a consideration of what was
Held. This was a good contract for sale of the land at a
communicated between them by words or conduct,
fair and reasonable price which was to be reached by
and whether that leads objectively to a conclusion
applying objective standards. If the machinery which
the parties had set up to ascertain the price broke
that they intended to create legal relations and had
down the court would substitute its own machinery to agreed upon all the terms which they regarded or the
find a fair and reasonable price. law requires as essential for the formation of legally
binding relations. Even if certain terms of economic
or other significance to the parties have not been
If the parties merely agree that they will agree one or finalised, an objective appraisal of their words and
conduct may lead to the conclusion that they did not
more terms in the future this does not create a contract.
intend agreement of such terms to be a pre-condition
In Willis Management (Isle of Man) Ltd v Cable and
to a concluded and legally binding agreement . . . in
Wireless plc [2005] EWCA Civ 806, [2005] 2 Lloyds
a case where a contract is being negotiated subject to
Rep 597 CA (Civ Div) Tuckey LJ said, ‘An agreement
contract and work begins before the formal contract
to agree an essential term is not [a binding contract].
is executed, it cannot be said that there will always
The court cannot make for the parties the agreement or even usually be a contract on the terms that were
which they did not make for themselves.’ However, agreed subject to contract. That would be too sim­
in contracts to sell goods or to supply services a con­ plistic and dogmatic an approach. The court should
tract can exist even if the price has not been agreed. not impose binding contracts on the parties which
Section 8(1) of the Sale of Goods Act 1979 provides they have not reached. All will depend upon the
that the price in a contract of sale of goods may be circumstances.’
fixed by the contract, or may be left to be fixed in a
manner agreed by the contract, or may be determined
3.3.1 Meaningless terms
by the course of dealing between the parties. Section
8(2) provides that where the price is not determined Many written contracts contain meaningless terms.
by any of these methods the buyer must pay a reason­ As the following case shows, it would be poor policy
able price. Section 15(1) of the Supply of Goods and to allow a person to escape from a contract merely
Services Act 1982 makes a similar provision where the because he had discovered such a term.
contract is for the supply of a service.
If the parties believe that they have made a con­
Nicolene Ltd v Simmonds [1953] 1 QB 543
tract, a court will not readily hold that they have not.
(Court of Appeal)
Once an agreement has started to be performed the
courts are much more likely to hold that there is a con­ The claimants wrote to the defendant ordering 3 000
tract. It is not absolutely essential to do this because tons of reinforced steel bars and asked for written
in the absence of a contract a party who had received confirmation of acceptance of the order. The defend-
valuable benefits could be ordered to pay for them on ant wrote back from his private address thanking the
a quantum meruit basis. (This would mean that the claimants for the contract. However, this letter said,
person who had supplied the goods or services would ‘As you have made the order direct to me, I am unable
to confirm on my usual printed form which would have
be paid a reasonable price or remuneration.) However,
the usual force majeure and war clauses, but I assume
the fact of the agreement having been partly per­
that we are in agreement that the usual conditions of
formed is a strong indication that the parties intended acceptance apply’. Later the defendant argued that
to create a contract.

76  Chapter 3  Formation of contracts – offer and acceptance

there was no contract as complete agreement had not


3.3.2 Best or reasonable endeavours
been reached with regard to the usual conditions of One of the parties to a contract might agree to use
acceptance. his ‘best endeavours’ or ‘reasonable endeavours’ to
Held. As there were no usual conditions of accept- achieve a certain result. In Jet2Com v Blackpool
ance the words were meaningless and could be Airport Limited [2012] EWCA Civ 417 the Court of
ignored. There was therefore a complete and enforce- Appeal considered the meaning of this in some detail.
able contract between the parties.
Moore-Bick LJ said:
Denning LJ: ‘In my opinion a distinction must be
drawn between a clause which is meaningless and a ‘In general an obligation to use best endeavours, or
clause which is yet to be agreed. A clause which is all reasonable endeavours, is not in itself regarded as
meaningless can often be ignored, whilst still leaving too uncertain to be unenforceable, provided that the
the contract good; whereas a clause which has yet to object of the endeavours can be ascertained with suf­
be agreed may mean that there is no contract at all, ficient certainty.’
because the parties have not agreed on all the essen-
He thought that there was an important difference
tial terms . . .’
between clauses, such as the one in Scammell v Ouston
COMMENT Lord Denning pointed out that if mean- above, whose content is so uncertain that they are inca­
ingless clauses were allowed to negate a contract, pable of creating a binding obligation and clauses which
‘You would find defaulters all scanning their contracts give rise to a binding obligation, the precise limits of
to find some meaningless clause on which to ride which are difficult to define in advance but which are
free.’ capable of being given practical content. Lewison LJ said
that the effect of an obligation to use reasonable or best
endeavours would depend upon the context in which
the expression was used. The most important part of
It should be noted that in this type of case either the the context would be the objective towards which the
previous dealings of the parties or trade custom could endeavours were to be directed. If they were to be
have a strong influence on the court’s decision. If, directed towards an objective which could be identified
for example, Nicolene Ltd and Simmonds had dealt with certainty then it would be possible, if necessary
with each other on several previous occasions there with the help of expert evidence, to decide whether
might have been little difficulty in deciding what the or not the endeavours used satisfied the obligation to
usual conditions of acceptance were. Similarly, if use them. So, for example, in The Talisman [1989]
Ouston had several times taken vans from Scammell 1 Lloyd’s Rep 535 it had to be decided if a skipper of a
Ltd on hire-purchase then the court might well have boat had used best endeavours to prevent it from sink­
decided that ‘on hire-purchase terms’ was definite ing. In that context, Lord Keith explained that the test
enough for the reasonable person to say what had was ‘an objective one, directed to ascertaining what an
been agreed. ordinarily competent fishing boat skipper might rea­
Many agreements, especially those to sell land sonably be expected to do in the same circumstances’.
and houses, are expressed to be made ‘subject to con­ In other cases the contract would itself lay down an
tract’. In Valencia v Llupar [2012] EWCA Civ 396 objective test. In both such classes of cases a clause
Mummery LJ explained the effect of this in the follow­ requiring a party to use best or reasonable endeavours
ing way. would not be too uncertain and would be enforceable.
‘Lawyers (and even business people without legal But at the other end of the spectrum were cases where
qualifications) normally know that, in practice, the it would be impossible to formulate any such objective
intended effect of the expression “subject to contract” test. If the object towards which the endeavours were to
in negotiations for an agreement is that matters con­ be directed was too uncertain to enforce, or if it would
tinue to be in negotiation; that, before a formal con­ involve an unworkable scheme which would give an
tract is executed, neither side is contractually bound arbitrator an impossible question to decide, then the
by a “subject to contract” arrangement or understand­ obligation to use best or reasonable endeavours would
ing; and that each side is accordingly free to withdraw be too uncertain to be enforceable. Also, the object of
from the proposed transaction without incurring legal the endeavours and the range of possible endeavours
liability for breach of contract.’ had to be considered together to decide whether there
3.4 Offer and acceptance when dealing with machines  77

was a legal obligation. It would be wrong to consider remain unmoved. He is committed beyond recall. He
only the factual situation which had led to the dispute. was committed at the very moment when he put his
If a concept embodied in a clause was so vague that money into the machine. The contract was concluded
a court could not apply objective criteria in deciding at that time. It can be translated into offer and accept­
whether it had been honoured then it would be unen­ ance in this way: the offer is made when the proprietor
forceable, although even then some clauses might be of the machine holds it out as being ready to receive
saved by a provision referring disputes to an expert or the money. The acceptance is made when the cus­
an arbitrator. Longmore LJ thought that an obligation tomer puts his money into the slot.’
to use best endeavours should usually be held to be an Thornton v Shoe Lane Parking will be considered in
enforceable obligation unless: more detail in Chapter 5. It will be seen there that the sig­
(i) the objective which the endeavours are meant to nificance of the contract being formed before the ticket
achieve is too vague or elusive to be a matter of was received was that words on the ticket were therefore
legal obligation; or too late to be incorporated into the contract.
(ii) the parties have provided no criteria by which it is Earlier in this chapter,  at 3.2, we considered
possible to assess whether best endeavours have Entores  v  Miles Far  East Corporation [1955] 2 QB
been, or can be, used. 327 (Court of Appeal) and saw that an acceptance by
telex is effective when it is received. We also saw that
He also said that best endeavours does not mean Lord Denning took the view that an acceptance by
­second-best endeavours and so the party obliged to use telex, like a personal communication, will not be effec­
best endeavours might incur some financial cost in doing tive if the person sending it knows that it has not been
so. (Moore-Bick LJ also thought that this might be so, received. Lord Denning also indicated that if it was
but that it would depend upon the nature of the contract the fault of the recipient that the acceptance was not
and the terms of the contract in question.) However, this received, for example if his telex machine had run out of
would be unlikely to extend to permanently incurring ink, then the acceptance could be regarded as received
losses to promote or prop up a failing business. when it should have been received. In Brinkibon Ltd
v Stahag Stahl und Stahlwarenhandelsgesellschaft
GmbH [1983] 2 AC 34 the House of Lords approved the
3.4 Offer and acceptance when ­decision in Entores.
dealing with machines Lord Wilberforce, dealing with communication by
telex, made it plain that the courts will take a prag­
It has become common for people to buy goods (or
matic, flexible approach.
tickets which entitle them to services) from machines.
At first sight this seems to cause considerable difficulty ‘The message may not reach, or be intended to reach,
in finding the offer and the acceptance. The customer the designated recipient immediately: messages may
cannot make both the offer and the acceptance so the be sent out of office hours, or at night, with the inten­
machine, on behalf of the supplier of the goods or ser­ tion, or on the assumption, that they will be read at a
vices, must make either the offer or the acceptance. later time. There may be some error or default at the
In Thornton v Shoe Lane Parking Ltd [1971] 2 QB recipient’s end which prevents receipt at the time con­
163 (Court of Appeal) Lord Denning MR analysed the templated and believed in by the sender . . . And many
position when a customer in a multi-storey car park is other variations may occur. No universal rule can
given a ticket by a machine on entry to the car park. He cover all such cases; they must be resolved by refer­
concluded that the contract was completed not when ence to the intentions of the parties, by sound business
the customer received the ticket, but as soon as the practice and in some cases by a judgment where the
risks should lie.’
customer became irrevocably committed to the con­
tract, that is to say, as soon as he put his money into It does seem fairly certain that if an acceptance by
the machine. telex or fax is received during office hours it is effec­
Lord Denning MR stated: tive when received and not when it is noticed. But
‘The customer pays his money and gets a ticket. He what if the recipient machine is turned off? It is not
cannot refuse it. He cannot get his money back. He possible to answer such a question with certainty, but
may protest to the machine, even swear at it. But it will in Brinkibon Lord Fraser said, ‘Once the message has
78  Chapter 3  Formation of contracts – offer and acceptance

been received on the offeror’s telex machine, it is not makes the offer and that his offer might or might not
unreasonable to treat it as delivered to the principal be accepted. The customer might make the offer by
offeror, because it is his responsibility to arrange for clicking on a button. Any acceptance would be effec­
prompt handling of messages within his own office.’ tive when the customer was informed that his offer
Lord Fraser also made the point that the acceptor by had been accepted. However, there is no reason why a
telex can generally tell if his message has not been website should not make the offer of a unilateral con­
received, whereas the offeror would not know that tract. If this were the case then the contract would be
an unsuccessful attempt had been made to send an concluded as soon as the customer had performed the
acceptance. stipulated act of acceptance (generally by clicking on
an acceptance button).
As we have seen, the key question when dealing with
3.4.1 Offer and acceptance made
the conclusion of contracts is the time when the accept­
over the Internet
ance is effective. The Electronic Commerce (EC Directive)
As yet there have been no significant decisions by the Regulations 2002 are concerned with the formalities
courts as to when a contract is concluded over the which must be complied with when a contract is made
Internet. There are two main ways in which such a con­ with an Internet service provider. They do not deal with
tract might be formed. First, a contract could be made the time at which the contract is concluded. However,
by exchange of emails. Second, a customer might visit reg.11 provides that an offer made by a consumer to an
a website and buy goods or services described there. Internet service provider, and an acknowledgement of
The position where emails have been exchanged having received such an offer, are to be effective when the
should be catered for by the common law rules already person to whom they are addressed can access them. The
considered in this chapter. The courts will take an Regulations do not deal with the time at which an accept­
objective view of an email and consider whether it ance is effective. However, there seems to be no reason
was an offer or an invitation to treat. An offer might why this too should not be when the person to whom it
or might not be of a unilateral contract. In the same is addressed is able to access it. But this is not explicitly
way, the courts will consider objectively whether an stated. In any event, as we shall see in Chapter 7 at 7.1.5
email amounted to acceptance of an offer. The most the question is often of little relevance in consumer con­
likely difficulty will arise in deciding precisely when tracts because the Consumer Contracts (Information,
an acceptance by email is effective. The general prin­ Cancellation and Additional Charges) Regulations 2013
ciples laid down in relation to telex seems likely to be (considered at 7.1.5) give consumers the right to cancel
applied. However, email differs from communication concluded distance contracts. However, the regulations
by telex in that a person who sends an email does not give no such rights to non-consumers.
immediately know whether or not it has been received.
In some ways acceptance by email is more similar
to acceptance by letter than acceptance by telex. 3.5 Acceptance of an Offer of a
However, it seems very unlikely that the postal rule Unilateral Contract
will apply. The rule is anomalous and the approach
of the courts has been to restrict its application rather In Carlill’s case we saw that the offeree’s motive for
than to expand it. It seems much more likely that the performing the act requested by the offeror is irrel­
statement of Lord Wilberforce in Brinkibon, set out evant. Presumably Mrs Carlill used the smoke ball to
above, will apply to acceptance by email. This state­ avoid catching flu, but this did not mean that she had
ment does not provide a cast iron answer applicable to failed to accept the offer. In Williams v Carwardine
all situations. It indicates that the court will be guided (1833) 5 C & P 566 a woman gave information leading
by the intentions of the parties, sound business prac­ to the conviction of a murderer. She did this because
tice and a judgment as to where the risks should lie. she thought she was about to die and she wanted to
In general, websites that describe goods and ser­ ease her conscience. Nevertheless, she was entitled
vices and the prices at which they are available will to the reward offered for the supply of information,
be making invitations to treat rather than offers. which led to the murderer’s conviction.
This would be particularly true if the material on the Although the situation is not entirely clear, it seems
website makes it plain that it is the customer who that a person who claims to have accepted an offer of
3.6 Termination of offers  79

a unilateral contract does not need to have known of in this chapter we saw that – the postal rule and offers
the offer at the time when the act which constitutes of unilateral contracts apart – an acceptance of an offer
acceptance was begun. It is sufficient that the offeree is only effective when it is received by the offeror. So
has knowledge before the act is completed. So if Mrs when an offeree claims to have accepted an offer which
Carlill had only heard of the reward shortly before she the offeror claims to have revoked, the court will need
caught flu she would still have been entitled to claim to discover whether or not the acceptance was received
that she had accepted the offer. before the revocation was received. The following
example demonstrates the two possibilities.
Let us suppose that farmer X has offered to sell 100
Test your understanding 3.2 tons of potatoes to wholesaler Y, who has expressed
1 At what point does an acceptance become interest but has not yet accepted. All of the terms of
effective so as to create a bilateral contract? the proposed contract have been clearly identified and
2 What is the effect of the postal rule? In what if Y were to accept, a contract would immediately be
circumstances will the rule not apply? created. Both X and Y go home and watch the news
3 What effect does a counter offer have on the on the television. One of the news items announces
offer to which it is a response? that the price of potatoes is likely to increase because
of disastrous weather in Europe. X decides that he no
4 What is the legal effect of advertising that an
auction will be held at which goods will be sold longer wants to sell his crop to Y at the price offered
without reserve? and resolves to revoke his offer. Y decides that he
wants to make the contract and to let X know that the
5 In what circumstances will an invitation to submit
tenders amount to an offer? offer is accepted. Whether or not a contract will come
into being will depend upon who communicates first.
6 In ascertaining whether or not an agreement
was sufficiently certain to constitute a contract,
If Y receives X’s revocation before X receives Y’s accept­
do the courts consider the objective meaning of ance, then there will be no contract. If X receives Y’s
what the parties agreed, or do they consider the acceptance before Y has received the revocation, then
subjective views of the parties themselves? a contract will have been created.
7 How will the presence of a meaningless term in a Once an offer has been made, if the offeror makes
contract affect the validity of the contract? a subsequent inconsistent offer this will revoke the
original offer. Pickfords Ltd v Celestica, considered
earlier in this chapter at 3.2.2, provides an example.
3.6 Termination of offers In that case the Court of Appeal also stated that acting
inconsistently with the original offer, to the knowledge
We have seen that as soon as an offer is accepted a of the offeree, could also revoke the original offer even
contract results. There are several ways in which an if no words were used.
offer which has been made can later cease to exist. Revocation will generally be communicated to the
Before examining these methods it must be borne in offeree by the offeror or his agent. However, the fol­
mind that we are not here concerned with whether or lowing shows that an unauthorised third party can
not the obligations imposed by a contract have ceased also communicate revocation as long as the offeree
to exist. If an offer ceases to exist, before it has been can regard the third party as reliable.
accepted, then no contract will ever come into exist­
ence. The obligations imposed by a contract will cease
to exist once the contract has been discharged, a mat­ Dickinson v Dodds
ter considered in Chapter 7. (1876) 2 Ch D 463 (Court of Appeal)

On Wednesday 10 June the defendant delivered a


3.6.1 Revocation written offer to sell a house and outbuildings to the
An offer can be revoked at any time before it is accepted. claimant. The offer stated that, ‘This offer to be left
over until Friday, 9 o’clock a.m. June 12, 1874.’ On
Once revoked, the offer no longer exists and accept­
Thursday the defendant negotiated to sell the house to
ance of it is therefore no longer possible. A revocation is
one Allan. One Berry found out about the negotiated ➔
effective only when it is received by the offeree. Earlier
80  Chapter 3  Formation of contracts – offer and acceptance

sale and told the claimant. At 7 am on Friday morn- Errington v Errington & Woods
ing Berry, acting as the claimant’s agent, handed the [1952] 1 KB 290 (Court of Appeal)
defendant a letter of acceptance and explained its
effect to him. The defendant had sold the house to A father bought a house for £750, paying £250 cash
Allan on the Thursday. and borrowing £500 from a building society. The father
Held. There was no contract. As no consideration told his daughter-in-law that if she paid the mortgage
had been provided to keep the offer open, it could be instalments she could have the house when the mort-
revoked at any time. At the time when the claimant gage was paid off. The daughter-in-law did not agree
purported to accept the offer he knew that the defend- to pay all of the mortgage instalments, but did begin
ant had changed his mind. Berry had effectively to pay them as they became due. After the daughter-
revoked the offer. in-law had paid the mortgage instalments for some
time, the father died leaving the house in his will to
his widow. Soon afterwards the widow claimed pos­
session of the house.
The old postal rule on acceptance of contracts has Held. The widow (who was in exactly the same pos­
never applied to revocation of an offer but only to ition as her husband would have been in if he had still
acceptance of an offer. Revocation of an offer is effec­ been alive) could not revoke the offer.
tive when received, whether posted or not, as the fol­ Denning LJ: ‘The father’s promise was a unilateral
lowing case demonstrates. contract – a promise of the house in return for their act
of paying the instalments. It could not be revoked by
him once the couple entered on performance of the
act, but it would cease to bind him if they left it incom-
Byrne & Co v Van Tienhoven & Co
plete and unperformed, which they have not done. If
(1880) 5 CPD 344
that was the position during the father’s lifetime, so it
On 1 October 1879 the defendants, who carried on must be after his death.’
business in Cardiff, posted an offer to sell 1 000 boxes
of tinplate to the claimants in New York. On 8 October COMMENT This case illustrates a general principle.
the defendants posted a revocation of their offer. The However, in some circumstances it will be possible
defendant’s offer was received by the claimants on to revoke the offer of a unilateral contract even after
11 October and a telegram of acceptance was sent the commencement of acceptance. (See the House of
the same day. A letter of acceptance was also sent on Lords decision in Luxor (Eastbourne) Ltd v Cooper
15 October. On 20 October the defendant’s letter of [1941] AC 108 set out in Chapter 11 at 11.5.2.) In
revocation reached the claimants. Daulia Ltd v Four Millbank Nominees [1978] 2 All ER
557, Goff LJ seemed to agree with Denning’s view in
Held. A good contract came into existence on
Errington v Errington and Woods: ‘there must be an
11 October. The revocation was not effective until it
implied obligation on the part of the [unilateral] offeror
was received on 20 October.
not to prevent the condition becoming satisfied,
which obligation it seems to me must arise as soon
COMMENT Before telegrams were abolished, the
as the offeree starts to perform. Until then the offeror
postal rule applied to acceptance of an offer by either
can revoke the whole thing, but once the offeree has
letter or telegram.
embarked on performance it is too late for the offeror
to revoke his offer.’

An offer, whether of a unilateral or a bilateral con­


tract, can be revoked at any time before acceptance.
However, some difficulty is caused by the fact that
acceptance of the offer of a unilateral contract takes Soulsbury v Soulsbury
the form of performing an action, and frequently the [2007] EWC A Civ 969, [2008] 2 WLR 834
performance of this action will take some consider­
able time. The following case suggests that the offer As part of a divorce settlement, the husband was
of a unilateral contract cannot be revoked once the ordered to pay the wife £12 000 per annum. It was
later agreed between the divorced couple that if she
offeree has started to perform the act which consti­
tutes acceptance.
did not seek to enforce the award he would leave her ➔
3.6 Termination of offers  81

A request for more information about an offer


£100 000 in his will. After this agreement he stopped
making payments and she never attempted to recover does not terminate the offer as it does not imply
arrears. The former husband became ill and on the rejection of it. It can therefore be important to distin­
day he died he remarried. This revoked the will which guish a request for more information from a counter
he had made, under which he had left his former wife offer.
£100 000. The deceased’s personal representatives
refused to pay the former wife the £100 000.
Held. The agreement to pay the £100 000 was valid Stevenson, Jacques & Co v McLean
and could be enforced. Longmore LJ regarded the (1880) 5 QBD 346
agreement as a unilateral contract. He said: ‘This is
a classic unilateral contract of the Carlill v Carbolic At a time when the market price of iron was
Smoke Ball [1893] 1 QB 256 or the “walk to York” kind. extremely volatile, the defendant offered to sell
Once the promisee acts on the promise by inhaling the claimants a quantity of iron for 40 shillings
the smoke ball, by starting the walk to York or (as here) net cash per ton. The offer was made on Sunday
by not suing for the maintenance to which she was 28  September and was to remain open until close
entitled, the promisor cannot revoke or withdraw his of business on Monday  29 September. The claim-
offer. But there is no obligation on the promisee to ants would have preferred to take the iron in instal-
continue to inhale, to walk the whole way to York or to ments, paying as each instalment was received. At
refrain from suing. It is just that if she inhales no more, 9.42 am Monday  29 September the claimants sent
gives up the walk to York or does sue for her mainte- a telegram, ‘Please wire whether you would accept
nance, she is not entitled to claim the promised sum.’ forty [shillings] for delivery over two months, or if
not, longest time you would give’. The defendant did
COMMENT Offering someone a sum of money if he not reply to this telegram but on the same day sold
walked to York has always been the classic example the iron to someone else. At 1.25 pm the defendant
of the offer of a unilateral contract. telegraphed the claimants to tell them that this had
been done. Before this telegram arrived the claim-
ants had sent a telegram accepting the defendant’s
offer. The defendant refused to deliver the iron and
The rule that revocation is effective only when it is the claimants sued for non-delivery.
communicated to the offeree causes some difficulty Held. There was a good contract to sell to the claim-
in reward cases where the offer of a unilateral con­ ants at forty shillings per ton for immediate delivery,
tract is made to the whole world. It must be possible as originally offered. The claimants’ first telegram
had not been a counter offer, it was just a request for
to revoke such an offer and the legal position seems to
more information. Consequently it did not revoke the
be that this can be achieved by advertising the revo­
defendant’s offer.
cation in the same way as the offer was advertised. So
the Carbolic Smoke Ball Company’s offer to pay the
£100 reward could have been revoked by advertis­
ing the revocation in the same way as the offer was A counter offer attempts to introduce a new term.
advertised. This revocation would be effective even A  request for information does not, rather it merely
as regards a person who had read the offer but had seeks to clarify what the offer is. When business con­
not read the revocation. It would not be effective as tracts are made there are often a series of negotiations,
regards a person who had already begun to accept the proposals and enquiries. It can be very difficult to dis­
offer by using the smoke ball in the correct way. tinguish those which amount to a counter offer from
those which do not.
3.6.2 Rejection of offer
3.6.3 Lapse of time
If an offeree communicates rejection of an offer then
this terminates the offer. We saw an example in Hyde v If an offer is stipulated as being open for a particular
Wrench, above at 3.2.2. The claimant’s counter offer time then it will be open for that length of time unless
of £950 for the farm amounted to a rejection of the it is revoked. In Dickinson v Dodds, for example, the
defendant’s offer to sell for £1 000. It therefore termin­ offer would have remained open until 9 am on Friday
ated the offer. had it not been revoked. Any acceptance before 9 am
82  Chapter 3  Formation of contracts – offer and acceptance

on Friday would have been effective, but any accept­ It is also possible to make a contract which will
ance after that time would have been too late. only become operative if a condition is fulfilled. The
It might seem rather unfair that an offer which has contract will exist as soon as it is made, but until the
been stipulated as being open for a particular time condition is fulfilled the rights and obligations of
can then be revoked before the time limit has expired. the parties do not become operative. For example,
Revocation is allowed because the person to whom the it is possible to make a sale of goods on the terms
offer was made has provided no consideration in return that a third party will fix the price. The contract
for the offer being kept open. This will be better under­ exists as soon as it is made, and if the third party
stood after reading the following chapter, in which does fix the price, then both sides will be bound to
the meaning of consideration is examined. Put simply, perform their obligations under the contract. But if
it means that if the offeree had promised any benefit, the third party cannot or does not make the valu­
for example the payment of £10, in return for keeping ation the agreement is frustrated (Sale of Goods Act
the offer open then this would have amounted to a con­ 1979, s.9).
tract to keep the offer open and so the offer could not
then have been revoked. But because no consideration
was given in return for the offer it was just a gratuitous 3.6.5 Death of offeror or offeree
promise and could therefore be revoked. In Chapter The fact that the offeror has died before the offer
4 we shall see that a promise for which nothing was is accepted will not necessarily prevent the offeree
received in return does not create a binding contractual from accepting the offer. If the offer was to supply a
obligation. Mountford v Scott [1975] 1 All ER 198, con­ personal service, such as to sing at a concert, then the
sidered in more detail in Chapter 7 at 7.2.4, provides an offer cannot be accepted. If the offer was not to sup­
example of purchasing an option to keep an offer open. ply a personal service, perhaps as an offer to sell a
In return for a payment of £1, the defendant promised car, then the legal position is less clear. In Bradbury v
to keep open for six months an offer to sell his house to Morgan (1862) 1 H & C 249 it was suggested that the
the claimant for £10 000. This agreement amounted to offeree can accept the offer until he has notification of
a contract and so it was binding on the defendant. the offeror’s death. If this point of view is correct then
If an offer is not specified as being open for any the offeror’s personal representatives would need to
particular length of time then it will remain open for perform the contract. The position is different where
a reasonable time, the length of which will depend it is the offeree who has died. Although there is little
upon all the circumstances of the case. If, for instance, a authority on the matter, it seems likely that the per­
businessman made two offers, one to sell a boatload of sonal representatives of an offeree who has died will
ripe bananas and the other to sell his business premises, not be able to accept any offer.
the offers would not remain open for the same length of If one of the parties dies after the contract has been
time. Offers to sell shares in a private company are likely concluded then this will generally not prevent per­
to lapse fairly quickly. In Ramsgate Victoria Hotel Co v formance of the contract unless the party who died
Montefiore (1866) LR 1 Ex 109, an offer to buy shares had contracted to supply personal services. This is a
made on 8 June was held to have lapsed by the time it sep­arate matter which is examined in Chapter 7 when
was accepted on 23 November. When shares quoted on we look at discharge of contractual obligations.
a stock market are bought electronically, acceptance of
an offer is generally required in 30 seconds or less.

3.7 Battle of the Forms


3.6.4 Condition not fulfilled
Many businesses use standard form contracts when
An offer can be stipulated as remaining in force until buying and selling. When a seller believes that the con­
the happening of a certain event. When a person offers tract was made on his standard form of sale, and the
to buy goods, for example, it is implied that the offer is buyer believes the goods were bought on his stan­dard
conditional on the goods remaining in the same con­ form of purchase, the courts have to decide which
dition as when the offer was made until the acceptance form applies. As the following case demonstrates, they
is made. If the goods are damaged before acceptance do this by applying the ordinary rules of offer and
then the offer will cease to exist. acceptance.
Key points 83

Butler Machine Tool Co Ltd v COMMENT The decision in this case shows that gen-
Ex-Cell-O Corporation Ltd erally the party who fires the last shot wins, that is to
[1979] 1 All ER 965 (Court of Appeal) say the person who submits the last counter offer wins
as long as the circumstances indicate that the other
On 23 May 1969 the claimants offered to sell a party accepted this counter offer. Lord Denning MR
machine for £75 553, delivery to be made within ten was critical of the classical offer, counter offer, and
months. The offer was made on the claimants’ terms acceptance approach. He considered it ill-suited to
and conditions, which stated that these terms and the needs of modern business. If both sides insist on
conditions were to prevail over any terms and con- firing the last shot then a contract will not come into
ditions in the buyer’s order. One of the claimants’ existence at all as agreement will never be reached.
terms allowed for an increase in the contract price if In Tekdata Interconnections Ltd v Amphenol Ltd
the price of manufacture should increase before the [2009] EWCA Civ 1209, [2010] 1 Lloyd’s Rep 357, the
date for delivery. On 27 May the defendants ordered Court of Appeal held that in a ‘battle of the forms’
a machine, saying that the order was made on their case the party who fired the last shot would generally
terms and conditions. These terms and conditions win, but that this would not always be the case. The
differed from the claimants’ terms and conditions, question would always depend upon what the parties
and did not include a price variation clause. At the must be taken, objectively, to have intended when
foot of the order was a tear-off slip which stated, ‘We the contract was made. This should be determined,
accept your order on the Terms and Conditions stated objectively, on the basis of a proper interpretation of
thereon’. On 5 June the claimants signed the slip and the documents.
sent it back to the defendants, adding that the order
‘is being entered in accordance with our revised quo-
tation of 23rd May’. The machine was delivered, but
the claimants then claimed an extra £2 892 under their Test your understanding 3.3
price variation clause. 1 At what stage will a revocation of an offer be
Held. The claimants were not entitled to the extra effective?
money as the contract was made on the defendants’ 2 At what stage will revocation of an offer of a
terms and conditions. The claimants made an offer unilateral contract no longer be possible?
on 23 May. The defendants made a counter offer on
3 For how long will an offer remain open?
27 May. The claimants accepted this counter offer by
signing and returning the defendants’ acknowledge- 4 How will the courts solve ‘battle of the forms’
ment slip on 5 June. cases?

Key points

Offer some specified act. The parties to a bilateral con­


■ An offeror makes an offer by proposing a set of tract exchange promises.
terms with the intention that these terms will form ■ The display of goods in shop windows or on
a legally binding agreement if they are accepted by supermarket shelves does not amount to an offer to
the person to whom they are proposed, the offeree. sell those goods.
■ An offer can be made by words or by conduct.
■ An invitation to treat is an invitation to bargain Acceptance
and is not an offer. ■ As soon as an acceptance is received by the
■ Advertisements are generally invitations to treat offeror a contract will come into existence. When
rather than offers. However, an advertisement the offer is of a unilateral contract acceptance does
which makes a definite promise can amount to the not need to be communicated, as acceptance is
offer of a unilateral contract. completed by performing the act requested.
■ A unilateral contract is offered when one party ■ An offer cannot be accepted by silence and
promises to be bound if the other party performs inactivity. ➔
84 Chapter 3 Formation of contracts – offer and acceptance

■ When the postal rule applies the acceptance of ■ When a seller asks for fixed competitive bids, a
an offer made by posting a letter will be effective referential tender will not be valid and the seller
from the time when it is posted. The rule will only will not be allowed to accept it.
apply when the letter of acceptance was prop­ ■ A contract will not come into existence unless
erly addressed and posted. The rule will not apply the offer which is accepted contains all of the essen­
where it would cause manifest inconvenience and tial terms of the contract and the meaning of these
absurdity. Nor will it apply where the circumstances terms can be ascertained with certainty.
of the case indicate that the parties cannot have ■ If an accepted offer contains a meaningless
intended that there should be a binding contract term this will not of itself mean that no contract
until the acceptance was received. is formed. The meaningless term can generally be
■ A counter offer will revoke the original offer. ignored.
■ If a lot is put up for sale at auction ‘without
reserve’ this amounts to the offer of a unilateral termination of offers
contract by the auctioneer promising that the ■ An offer cannot be accepted after it has
highest genuine bid will be accepted. Advertising terminated.
that an auction will be held without reserve does ■ An offer of a bilateral contract can be revoked at
not amount to a definite offer that the auction will any time before it is accepted. The revocation will
be held or that any of the lots will be put up for be effective from the time when it is received by the
auction. offeree.
■ An invitation to tender is generally only an invi­ ■ In all but exceptional cases it is not possible to
tation to treat. However, if the invitation promises revoke an offer of a unilateral contract once the offeree
that the highest or lowest tender will be success­ has begun to accept by performing the act requested.
ful then it can amount to the offer of a unilateral ■ An offeree who rejects an offer will not subse­
contract. quently be able to accept it.
■ A standing offer for which no consideration was ■ If no time limit is stipulated then an offer will
received can be withdrawn at any time. However, remain open for a reasonable time. If no consider­
orders placed prior to withdrawal will amount to ation is given for keeping an offer open then it can be
acceptances of the offer and lead to the creation of revoked at any time, even if the offer was stipulated
contracts. as being open for a particular time.

Summary questions

1 Which of the following would amount to an offer c A wholesaler writes to his customers, ‘I am selling
and which would amount only to an invitation to off all last year’s stock. If you place an order
treat? before the end of this month I will guarantee
25 per cent discount on any old stock which I still
a A supermarket advertises that it will give a free have.’
chicken to anyone who spends at least £20 in any d A corner shop advertises its biscuits, ‘Summer
one visit. madness! Special offer for the month of June!
b A business writes to a customer: ‘You mentioned Chocolate digestives only 25p! We will not be
that you might want to buy our old fax machine. beaten on price or quality!’
We have now bought a new machine. I’ve asked e A manufacturer of electric shavers advertises:
the office manager to put the old machine to one ‘Shaves as close as your blade or your money
side, and you can have it for £100. If you do want back.’
the machine, let me know before the end of the f In a supermarket meat which is nearing its
month. If I don’t hear from you before then I’ll take sell-by date bears a ‘special offer’ label, stating
it you don’t want the machine and send it off to an that the original price has been reduced by
auction.’ 25 per cent.

Multiple choice questions 85

2 If goods on supermarket shelves did generally d The company ordered coal, which B delivered, in
amount to offers to sell, what undesirable accordance with the altered document.
consequences would follow?
Each of the four statements can be classified as one
3 A motorist drives into a self-service garage and of the following: an offer, an invitation to treat, an
fills his car with petrol. The motorist goes into the acceptance, a counter offer, a revocation, a contract,
office where an attendant asks him for the price of or nothing at all.
the petrol. The customer pays the price. When was Decide which of these each statement is. At least
the contract formed? three of the cases quoted in this chapter can be used
4 Allen Ltd advertise a second-hand articulated lorry to justify your decisions. Which cases are they?
in a trade journal for £6 000. Bernard, a local haulier, 8 Company A wants to sell a second-hand machine
phones Allen Ltd and says that he would very much tool to Company B. Both parties want to make the
like to look at the lorry but that he is off on a two- deal but they cannot agree about the price. Would
day trip to the Continent. The managing director of the agreement be sufficiently certain to be a contract
Allen Ltd says that if another buyer comes forward if the price was agreed to be:
he will have to sell to that buyer. Bernard then says
a A fair price?
that he will pay £100 if Allen Ltd promise to keep
b A price to be fixed by C?
open for three days an offer to sell the lorry to him for
c The price at which a similar machine tool is sold at an
£6 000. The managing director agrees to this. Has any
auction which is due to take place the following day?
contract been made? If so, what are its terms?
d A price which the parties will agree later?
5 A customer in a shop sees a cooker bearing a
£56 price tag. The customer says that he will buy the 9 A supermarket has a butchery counter.
cooker but the shop assistant says that the price tag A customer asks for half a kilo of chuck steak. The
should read £560. Can the customer insist on buying assistant weighs a piece of meat and says that it is
the cooker for £56? 480 grams. The customer says that this is all right,
and then asks the assistant to mince the meat. The
6 Customers who buy from vending machines make
assistant minces it, puts it into a bag and sticks a
contracts with the owner of the goods which the
price label on the bag. The customer pays for the
machines supply. Analyse the offer and acceptance
meat at the till. Analyse this transaction in terms of
position when a customer buys a can of soft drink
offer and acceptance.
from a vending machine. Would it make a difference
that the machine did or did not have a coin refund? 10 In May and Butcher v R [1934] 2 KB 17n
(House of Lords), M and B agreed to buy tents
7 In Brogden v Metropolitan Railway (1877) 2 AC from the Disposals Board. The price to be paid
666 (House of Lords), a dispute arose as to whether a
was described as follows: ‘The price or prices to
contract existed between a coalman and the railway
be paid . . . shall be agreed upon from time to time
and, if the contract did exist, what its terms were. The
between the (Disposals Board) and the purchasers as
facts of the case can be reduced to the following four
the quantities of said old tentage become available
statements.
for disposal.’ A further clause said that all disputes
a A company which had taken coal from B for many arising under the contract should be referred to
years sent B a written agreement regarding the arbitration. Do you think that this agreement was
future supply of coal. sufficiently definite to amount to a contract? Would
b B altered the document, signed it, and sent it back. your answer be different if there had been a definite
c The company put the signed document in a agreement to buy tents with no mention of the price
drawer, where it stayed for two years. to be paid?

Multiple choice questions

1 Y Co Ltd, a large department store, advertise price in another local shop they can have all of the
their price promise which states that if any customer purchase price returned to them. On 1 March a
buys from them and, within 28 days, notifies them shopper buys a camera from the store for £49.99.
in writing that the same goods are on sale at a lower On 28 March the shopper posts a letter explaining

86 Chapter 3 Formation of contracts – offer and acceptance

that the same camera is on sale at another shop for 4 On 20 January X offered to sell his boat to Y. X
£49.89. The letter arrives on 30 March. Which one of said that he would have to receive a reply to his offer
the following statements is correct? before 31 January. On 21 January Y telephoned X
a The store’s price promise was only an invitation to to ask if X would take a cheque. X replied that he
treat. The shopper made an offer which the store wanted cash. On 29 January X sold the boat to Z, a
can accept or reject. third party. Y did not know about the sale of the boat
b The store’s price promise was an offer which the and on 30 January he posted a letter, accepting X’s
shopper has validly accepted. offer. The letter did not arrive until 1 February. Which
c The store’s price promise was an offer. However, one of the following statements is correct?
the shopper’s acceptance was too late to be a There is no contract between X and Y. Y made a
effective. counter offer which revoked X’s offer.
d The store’s price promise was too vague to be an b There is no contract between X and Y because the
offer and would not apply to a 10p difference in boat had already been sold to Z and this revoked
price. X’s offer.
c There is a good contract between X and Y
2 At an auction which had been advertised as being
because Y posted the acceptance before the
‘without reserve’, X appears to have made the highest
deadline.
bid for Lot 7. The auctioneer is asking one last time
d There is no contract between X and Y because
for any higher bids. Assuming that no higher bid is
Y’s acceptance was not received until after the
made by anyone else, which one of the following
deadline.
statements is correct?
a X can withdraw his bid. If X does not withdraw his 5 Consider the following statements.
bid the auctioneer can refuse to accept it without i In certain circumstances the mere fact of inviting
being in breach of contract. tenders may give rise to a binding contractual
b X can withdraw his bid. If X does not withdraw his obligation to consider tenders properly submitted.
bid the auctioneer will be in breach of a collateral ii Revocation of a unilateral offer will always be
contract if he refuses to accept it. effective if it is communicated to the offeror before
c X can withdraw his bid. If X does not withdraw his the offeror has communicated acceptance.
bid, the auctioneer is bound to accept it and X will iii The postal rule can mean that acceptances by
then have bought Lot 7. post, but not revocations, are effective when
d X cannot withdraw his bid. If X does not withdraw, posted.
the auctioneer has no contractual obligation to iv An advertisement that an auction will take place
accept the bid. without reserve does not amount to an offer that
the auction will take place or that any particular
3 Xshire County Council place an advertisement in a
goods will actually be included in the auction.
newspaper asking for tenders to supply ‘such paper
as we might require over a 12 month period’. Y puts Which of the above statements are true?
in a tender stating the price at which he is willing to a i, iii and iv only.
supply the paper. Xshire County Council write to Y b ii and iii only.
accepting his tender for the whole 12 months. Three c i and iv only.
months later Xshire County Council place an order d All of the statements.
which Y refuses to fill. Which one of the following
statements is correct? 6 A offers to sell his car to B for £3 000. Which of the
following would terminate the offer?
a Y has made a contract to supply orders for any
reasonable amount of paper ordered in the year. i B offers £2 400 for the car.
b Y has made a contract to supply any orders for iiB inquires if he can have three months’ credit.
paper placed within the year, no matter how many iii
A sells the car to C.
orders might be placed. ivB hears from a reliable source that A has sold the
c Y must fill the particular order which has been car to C.
made. However, Y could then revoke his tender, v B does not reply for two years.
and refuse to fill any subsequent orders. a i, ii, iv and v only.
d Y has only made an invitation to treat. Each time b i, iv and v only.
Xshire County Council place an order this amounts c iii and v only.
to an offer which Y can either accept or reject. d All of the alternatives.

Task 3 87

Task 3

A friend of yours, a market trader, has always bought his goods from wholesalers. Your friend has heard that
goods can sometimes be bought very cheaply at auction or by tender, and would like to know the legal position
when buying in these ways.
Write a report, indicating:
a How a contract is made.
b The difference between an offer and an invitation to treat.
c The offer and acceptance position when buying at auctions.
d The offer and acceptance position when buying by tender.
e The extent to which offers can be withdrawn after they have been made.
4
other requirements of a contract – intention
to create legal relations · consideration ·
formalities · capacity

Introduction
This chapter considers the following matters: 4.3 Formalities
4.3.1 Contracts which must be made by a deed
4.1 Intention to create legal relations 4.3.2 Contracts which must be in writing
4.1.1 Business and commercial agreements 4.3.3 Contracts which must be evidenced in
4.1.2 Social and domestic agreements writing
4.2 Consideration 4.3.4 The Electronic Commerce (EC) Regulations 2002
4.2.1 Executory, executed and past consideration 4.4 Capacity
4.2.2 Sufficiency and adequacy 4.4.1 Minors
4.2.3 Part payment of a debt 4.4.2 Drunkards and mental health patients

4.1 inTEnTion To CrEaTE lEGal In ascertaining whether or not the parties intended
rElaTionS that their agreement should be legally enforceable the
courts take an objective view of the parties’ intentions
In Chapter 3 we saw that a contract is made through the rather than trying to assess the actual intentions of the
medium of offer and acceptance. But the acceptance of offeror and offeree. The question is not whether or
an offer will only give rise to a contract if the offeror and not the parties actually did intend to enter into a legal
the offeree appeared to intend to create legal relations. If relationship, it is whether they appeared to the reason­
the parties did not appear to intend that their agreement able person to have this intention. As Lord Devlin put
should be legally binding then there will be no contract. it in Parker v Clark [1960] 1 WLR 286, ‘The question
Let us assume for example that A says to B, ‘I will [whether or not there is a binding contract] must, of
sell you my shares in X Ltd for £10 000’, and that B course, depend upon the intention of the parties, to be
replies, ‘I accept’. There is plainly an offer and plainly inferred from the language they use and from the cir­
an acceptance of it. But whether or not the offer and cumstances in which they use it.’
acceptance would create a contract would depend
upon the context in which the words were spoken. If
4.1.1 Business and commercial
A and B were businessmen, dealing at arm’s length in
agreements
a business context, a court would infer that they did
intend to make a contract, and there would there­ When deciding whether or not there is an intention
fore be a contract. If A and B were friends, speaking to create legal relations, the courts divide agree­
the words lightheartedly, as a long­standing joke, there ments into two classes: business and commercial
would be no contract because it would be inferred that agreements on the one hand, and social and domes­
they did not intend to make a contract. tic agreements on the other. As regards business and
4.1 Intention to Create Legal Relations  89

commercial agreements, there is a presumption that


Rose and Frank Co v Crompton Bros
the parties do intend to make a contract. As regards
[1925] AC 445 (House of Lords)
social and domestic agreements, there is a presump­
tion that they do not. Either of these presumptions can Since 1905, the claimants had been supplied with
be rebutted by evidence to the contrary. the defendants’ carbonising tissue paper, which the
So if an offer is made and accepted in a business claimants finished and sold in the United States. The
or commercial context then a court will start with business between the two parties was very consider­
the strong presumption that the parties did intend to able and very profitable. In 1913 the claimants and the
defendants both signed a document which expressed
make a contract. An offeror or offeree who wishes to
their willingness that the claimants should continue
rebut this presumption will need to introduce evidence
to be supplied with the defendants’ products. Under
which shows that there was in fact no intention to cre­ this agreement the claimants were to be the defend­
ate legal relations. ants’ sole agents in the United States for three years,
with an option to extend that period for another three
Esso Petroleum Ltd v Commissioners years. An ‘Honourable Pledge Clause’ stated:
of Customs and Excise ‘This arrangement is not entered into . . . as a for­
[1976] 1 WLR 1 (House of Lords) mal or legal agreement, and shall not be subject
to legal jurisdiction in the law courts either of the
In order to promote their petrol, Esso advertised that they
United States or England, but it is only a definite
would give a World Cup coin to motorists who bought
expression and record of the purpose and intention
four gallons of petrol. The coins bore the likeness of one
of the . . . parties concerned, to which they honour­
of the 30 footballers in the England squad for the 1970
ably pledge themselves with the fullest confidence,
World Cup. The Customs and Excise Commissioners
based on past business with each other, that it will
claimed that the coins were goods on which purchase
be carried through . . .’
tax was payable. Schedule 1 to the Purchase Tax Act
1963 made coins of this type liable to purchase tax if Later the agreement was extended until March 1920, but
they were ‘produced in quantity for general sale’. in 1919 the defendants terminated the agreement with­
out notice. The claimants sued for breach of contract.
Held. There was a legally binding contract to supply a
World Cup coin to a motorist who bought four gallons Held. The agreement was not a contract and could
of petrol. There was an intention to create legal relations not therefore be sued upon. The Honourable Pledge
because the advertising took place in a business con­ Clause dominated the whole signed document and its
text and was designed to achieve commercial success. ordinary and natural meaning was that the agreement