Оxford_dictionary_of_law 2 page

See also limitation of actions.

2. Confirmation by the signatory to a document that the signature on the document is his own. For example, the Wills Act 1837 requires that the testator's signature on the will be made or acknowledged in the presence of at least two witnesses present at the same time. Since January 1983 it has also been possible for a witness to acknowledge his signature in the presence of the testator.

acknowledgment and undertaking

Confirmation in a *title deed that a person may see and have copies of relevant deeds not in his possession (acknowledgment), with a promise from the holder of them to keep them safely (undertaking). Thus when part of an owner's land is sold, he keeps his deeds to the whole but in the conveyance gives this acknowledgment and undertaking to the purchaser, who can then prove his title to the part from copies of the earlier deeds and by calling for production of the originals. In the majority of cases the vendor gives the purchaser all title documents relating solely to the land conveyed, and an acknowledgment and undertaking is only necessary when this does not happen. Note that personal representatives and fiduciary owners will normally give only an acknowledgment, no undertaking. Breach of an undertaking gives rise to an action in damages.

acknowledgment of service

A response by a defendant to a claim. A defendant who intends to contest proceedings brought against him by a claimant must respond to the claim by filing an acknowledgment of service and/or by filing a *defence. Acknowledgments of service are used if the defendant is unable to file a defence within the required time or if the defendant intends to dispute the jurisdiction of the court, By acknowledging service a defendant is given an extra 14 days for filing the defence. In effect this means that the defendant has a 28-day period after service of the claim before the defence must be served. Once the defendant has returned the relevant section of the acknowledgment of service form, the court must notify the claimant in writing.

ACP states

The African, Caribbean, and Pacific states that are associated with the European Union through the Lomé Convention. This convention, which was signed at Lomé (Togo) in 1975, provides for cooperation in matters of commerce between ACP states and EU states, including access to the EU market for products from the ACP countries. The Convention also provides for cooperation in industrial and financial matters.

acquiescence

n.

Express or implied *consent. In law, care must be taken to distinguish between mere knowledge of a situation and positive consent to it. For example, in the defence of *volenti non fit injuria an injured party will not be regarded as having consented to a risk simply because he knew that the risk existed.

acquired rights

See relevant transfer.

acquis communautaire

(French)

The body of *Community legislation by which all EU member states are bound.

acquittal

n.

A decision by a court that a defendant accused of a crime is innocent. A court must acquit a defendant following a verdict of *not guilty or a successful plea of *autrefois acquit or *autrefois convict. Once acquitted, a defendant cannot be retried for the same crime on fresh evidence, but an acquittal in a criminal court does not bind civil courts (for example, in relation to a libel charge against someone alleging the defendant's guilt).

action

n.

A proceeding in which a party pursues a legal right in a civil court.

See also in personam; in rem.

active trust

special trust

(active trust, special trust)

A trust that imposes duties on the trustee other than that of merely handing over the trust property to the person entitled to it (Compare bare trust). These duties may impose a specific obligation on the trustee or confer a discretion on him.

act of God

An event due to natural causes (storms, earthquakes, floods, etc.) so exceptionally severe that no-one could reasonably be expected to anticipate or guard against it.

See force majeure.

Act of Parliament

statute

(Act of Parliament, statute)

A document that sets out legal rules and has (normally) been passed by both Houses of *Parliament in the form of a *Bill and agreed to by the Crown (See royal assent). Under the Parliament Acts 1911 and 1949, however, passing of public Bills by the House of Lords can be dispensed with, except in the case of Bills to extend the duration of Parliament or to confirm provisional orders. Subject to these exceptions, the Lords can delay Bills passed by the House of Commons; it cannot block them completely. If the Commons pass a money Bill (for example, one giving effect to the Budget) and the Lords do not pass it unaltered within one month, it may be submitted direct for the royal assent. Any other Bill may receive the royal assent without being passed by the Lords if the Commons pass it in two consecutive sessions and at least one year elapses between its second reading in the first session and its third reading in the second.

Every modern Act of Parliament begins with a long title, which summarizes its aims, and ends with a short title, by which it may be cited in any other document. The short title includes the calendar year in which the Act receives the royal assent (e.g. The Competition Act 1998). An alternative method of citation is by the calendar year together with the Chapter number allotted to the Act on receiving the assent or, in the case of an Act earlier than 1963, by its regnal year or years and Chapter number. Regnal years are numbered from the date of a sovereign's accession to the throne, and an Act is attributed to the year or years covering the session in which it receives the royal assent. (See also enacting words). An Act comes into force on the date of royal assent unless it specifies a different date or provides for the date to be fixed by ministerial order.

Acts of Parliament are classified by the Queen's Printer as public general Acts, local Acts, and personal Acts.

Public general Acts include all Acts (except those confirming provisional orders) introduced into Parliament as public Bills.

Local Acts comprise all Acts introduced as private Bills and confined in operation to a particular area, together with Acts confirming provisional orders.

Personal Acts are Acts introduced as private Bills and applying to private individuals or estates. Acts are alternatively classified as public Acts or private Acts according to their status in courts of law. A public Act is judicially noticed (i.e. accepted by the courts as a matter of general knowledge). A private Act is not, and must be expressly pleaded by the person relying on it. All Acts since 1850 are public unless they specifically provide otherwise. The printed version of an Act, rather than the version set out on the HMSO website, is the authentic text, although there are current proposals (2001) to alter this rule under the Electronic Communications Act 2000.

act of state

An act, often involving force, of the executive of a state, or committed by an agent of a sovereign power with its prior approval or subsequent ratification, that affects adversely a person who does not owe allegiance to that power. The courts have power to decide whether or not particular conduct constitutes such an act, but if it does, they have no jurisdiction to award any remedy.

actual bodily harm

Any hurt or injury calculated to interfere with the health or comfort of the victim. Assault (*assault) causing actual bodily harm is a summary or indictable offence carrying a maximum punishment of five years' imprisonment. The hurt need not be serious or permanent in nature, but it must be more than trifling. It is enough to show that pain or discomfort has been suffered, even though no bruising is evident. Hysteria brought on as a result of assault is sufficient for the offence to be proved.

actual military service

See privileged will.

actual notice

Knowledge that a person has of rights adverse to his own. If a purchaser of unregistered land has actual notice of an interest that is not required to be registered as a land charge, and which will not be overreached on the sale to him, he will be bound by it. The doctrine of notice plays no part in registered land, where it has been replaced by the rules of registration.

See also constructive notice; imputed notice.

actual total loss

(in marine insurance)

A loss of a ship or cargo in which the subject matter is destroyed or damaged to such an extent that it can no longer be used for its purpose, or when the insured is irretrievably deprived of it. If the ship or cargo is the subject of a *valued policy, the measure of indemnity is the sum fixed by the policy; if the policy is unvalued, the measure of indemnity is the insurable value of the subject insured.

Compare constructive total loss.

actus reus

(Latin: a guilty act)

The essential element of a crime that must be proved to secure a conviction, as opposed to the mental state of the accused (See mens rea). In most cases the actus reus will simply be an act (e.g. appropriation of property is the act of theft) accompanied by specified circumstances (e.g. that the property belongs to another). Sometimes, however, it may be an *omission to act (e.g. failure to prevent death may be the actus reus of manslaughter) or it may include a specified consequence (death resulting within a year being the consequence required for the actus reus of murder or manslaughter). In certain cases the actus reus may simply be a state of affairs rather than an act (e.g. being unfit to drive through drink or drugs when in charge of a motor vehicle on a road).

actus reus non tacit reum nisi mens sit rea

(Latin: an act does not make a person guilty of his crime unless his mind be also guilty)

The maxim that forms the basis for defining the two elements that must be proved before a person can be convicted of a crime (See actus reus; mens rea).

ad colligenda bona

(Latin)

To collect the goods. The court may grant *letters of administration ad colligenda bona to any person to deal with specified property in an estate when that property might be endangered by delay. For example, if part of the estate consists of perishable goods the court may grant administration ad colligenda bona to any suitable person to allow him to sell or otherwise deal with those goods for the benefit of the estate. This is a limited grant only and ceases on the issue of a full grant of representation to the persons entitled to deal with the whole estate. In one case, such a grant was issued to the Official Solicitor on an application by the Inland Revenue when the executors of the deceased's will delayed applying for probate.

additional voluntary contribution

AVC

(additional voluntary contribution,AVC)

An additional payment that may be made by an employee to a pension scheme in order to increase the benefits available from their pension fund on retirement. AVCs can be paid into an employer's scheme or into a scheme of the employee's choice (a free-standing AVC); they can be made free of tax within Inland Revenue limits (See pension).

address for service

The address, which a party to court proceedings gives to the court and/or the other party, to which all the formal documents relating to the proceedings should be delivered. Notices delivered at that address (which may be, for example, the address of his solicitors) are binding on the party concerned.

ademption

n.

The cancellation or reduction of a specific *legacy because the subject matter of the gift is no longer part of the testator's estate at his death, or the testator no longer has power to dispose of it, or there is nothing conforming to the description of it in the will. For example, if the will bequeaths a particular house that the testator sold during his lifetime, or if after making a will giving a legacy to his child the testator gives the child property constituting a *portion, the legacy is in each case adeemed. The gift of the house is cancelled and the child's legacy is reduced by the amount of the portion (See also satisfaction). Ademption need not occur by the testator's own deed; for example, an Act of Parliament that nationalized a company in which the testator had shares would cause a legacy of those shares to adeem.

ad idem

(Latin: towards the same)

Indicates that the parties to a transaction are in agreement.

See consensus ad idem.

adjective law

The part of the law that deals with practice and procedure in the courts.

Compare substantive law.

adjournment

n.

(in court procedure)

The postponement or suspension of the hearing of a case until a future date. The hearing may be adjourned to a fixed date or sine die (without day), i.e. for an indefinite period. If an adjournment is granted at the request of a party the court may attach conditions, e.g. relating to the payment of any *costs thrown away.

adjudication

n.

1. The formal judgment or decision of a court or tribunal.

2. A decision by the Commissioners of Inland Revenue as to the amount (if any) of *stamp duty payable on a written document.

adjudication order

Formerly, a court order that made a debtor bankrupt.

See bankruptcy order.

adjustment

n.

1. The determination of the amount due under a policy of insurance.

2. The working out by an average adjuster of the rights and liabilities arising in a case of general *average.

ad litem

(Latin)

For the suit. A grant ad litem is the appointment by a court of a person to act on behalf of an estate in court proceedings, when the estate's proper representatives are unable or unwilling to act. For example, the Official Solicitor may be appointed administrator ad litem when a person wishes to claim under the Inheritance (Provision for Family and Dependants) Act 1975(See family provision) but the personal representatives are not willing to act, or nobody is entitled to a grant, or the only person entitled to a grant is the litigant himself. A guardian ad litem is the former name for a *children's guardian.

administration

n.

1. The collection of assets, payment of debts, and distribution to the beneficiaries of property in the estate of a deceased person.

See also grant of representation.

2. The granting of *letters of administration to the estate of a deceased person to an *administrator, when there is no executor under the will.

3. The process of carrying out duties imposed by a trust in connection with the property of a person of unsound mind or a bankrupt.

administration action

Proceedings instituted in court by a personal representative or any other person interested in the estate of a deceased person to obtain a *grant of representation.

administration bond

A guarantee by a third party, often an insurance company, to make good any loss arising if a person to whom letters of administration have been granted fails to deal properly with the estate. The court usually requires an administration bond as a condition of granting letters of administration only when the beneficiaries are considered to need special protection, e.g. when the administrator lives abroad or where there has been a dispute as to who should administer the estate.

administration of poison

See poison.

administration order

1. An order made in a county court for the administration of the estate of a judgment debtor. The order normally requires the debtor to pay his debts by instalments: so long as he does so, the creditors referred to in the order cannot enforce their individual claims by other methods without the leave of the court. Administration orders are issued when the debtor has multiple debts but it is thought that his bankruptcy can be avoided.

2. An order made by the court under the Insolvency Act 1986, directing that, during the period for which it is in force, the affairs, business, and property of a company shall be managed by a person appointed by the court (known as the administrator). In order for the court to grant such an order it must be satisfied that the company cannot or is unlikely to be able to pay its debts when due and that the order is likely to allow (1) the survival of the company, or (2) the approval of a *voluntary arrangement, or (3) a more favourable realization of its assets than would be possible under a *winding-up or through an arrangement with creditors.

The Insolvency Act does not specify a period for the duration of the order: it remains in force until the administrator is discharged, by the court, having achieved the purpose(s) for which the order was granted or having decided that the purpose cannot be achieved.

While the order is in force the company may not be wound up; no steps may be taken to enforce any security over the company's property or to repossess goods in the company's possession, except with the leave of the court, and no other proceedings or other legal processes may be initiated or continued, against the company or its property, except with the court's leave.

administration pending suit

Administration of a deceased person's estate by a person appointed by the High Court (the administrator pending suit) when legal proceedings are pending concerning the validity of the will or for obtaining, recalling, or revoking any grant. An administrator pending suit has all the rights, powers, and duties of a general administrator except that he may not distribute any part of the estate without the leave of the court.

administrative powers

Discretionary powers of an executive nature that are conferred by legislation on government ministers, public and local authorities, and other bodies and persons for the purpose of giving detailed effect to broadly defined policy. Examples include powers to acquire land compulsorily, to grant or refuse licences or consents, and to determine the precise nature and extent of services to be provided. Administrative powers are found in every sphere of public administration, including town and country planning, the regulation of public health and other environmental matters, the functioning of the welfare services, and the control of many trades, professions, and other activities. Their exercise is subject to judicial control by means of the doctrine of *ultra vires.

administrative receiver

A *receiver who, under the terms of a debenture secured by floating *charge, takes control of all (or substantially all) of a company's assets.

See also insolvency practitioner.

administrative tribunal

A body established by or under Act of Parliament to decide claims and disputes arising in connection with the administration of legislative schemes, normally of a welfare or regulatory nature. Examples are *employment tribunals and *rent assessment committees. They exist outside the ordinary courts of law, but their decisions are subject to judicial control by means of the doctrine of *ultra vires and in cases of *error of law on the face of the record.

Compare domestic tribunal.

See also Council on Tribunals.

administrator

n.

1. A person appointed by the court to collect and distribute a deceased person's estate when the deceased died intestate, his will did not appoint an executor, or the executor refuses to act. An administrator's authority to deal with the estate does not begin until the court has granted *letters of administration. The Administration of Estates Act 1925 lays down the order in which people are entitled to a grant of representation.

Compare executor.

2. See administration order.

Admiralty Court

A court forming part of the *Queen's Bench Division of the High Court whose jurisdiction embraces civil actions relating to ships and the sea. *puisne judges hear cases with the assistance of nautical assessors. The court's work includes cases about collisions, damage to cargo, prizes (See prize court), and salvage, and in some cases *assessors may be called in to sit with the judge. The distinctive feature of the court's procedure is the action *in rem, under which the property that has given rise to the cause of action (usually a ship) may be "arrested" and held by the court to satisfy the claimant's claim. In practice, it is usual for the owners of the property to give security for its release while the action is proceeding. If the claim is successful, the property held or the sum given by way of security is available to satisfy the judgment. Until 1971 the Admiralty Court was part of the *Probate, Divorce and Admiralty Division of the High Court. Since the Access to Justice Act 1999, all Admiralty proceedings will be allocated to the *multi-track.

admissibility of evidence

The principles determining whether or not particular items of evidence may be received by the court. The central principle of admissibility is *relevance. All irrelevant evidence is inadmissible, but evidence that is legally relevant may also be inadmissible if it falls within the scope of one of the *exclusionary rules of evidence.

See also conditional admissibility; multiple admissibility.

admissibility of records

In civil cases documents containing information (records) are admissible as evidence of the facts stated in them. Before the introduction of the Civil Evidence Act 1995, such documents and records were admissible only if they came within an exception to the rules prohibiting the use of hearsay evidence. Since 1995 the hearsay rules in civil cases have been abolished and accordingly these records are admissible. In criminal cases the hearsay rules in relation to business documents have been relaxed, although not completely abolished, by the Criminal Justice Act 1988. Under these provisions, such records are admissible if they have been compiled by someone acting in the course of a duty to do so.

admission

n.

1. In civil proceedings, a statement by a party to litigation or by his duly authorized agent that is adverse to the party's case. Admissions may be informal (i.e. in a document or by word of mouth) or formal (i.e. made in a statement of case or in reply to a request for further information). An admission may be related to the court by someone other than the person who made it under an exception to the rule against *hearsay evidence.

2. In criminal proceedings, a statement admitting an offence or a fact that constitutes legally acceptable evidence of the offence or fact. Admissions may be informal or formal. An informal admission is called a *confession. A formal admission may be made either before or at the hearing, but if not made in court, it must be in writing and signed by the defendant or his legal adviser. An admission may be made in respect of any fact about which *oral evidence could be given and is *conclusive evidence of the fact admitted at all criminal proceedings relating to the matter, although it may be withdrawn at any stage with the permission of the court. A plea of guilty to a charge read out in court is a formal admission.

See also caution.

admonition

n.

A reprimand from a judge to a defendant who has been discharged from the further prosecution of an offence.

adoption

n.

1. The process by which a parent's legal rights and duties in respect of an unmarried minor are transferred to another person or persons. Adoption can only take place by means of an adoption order made by a magistrates' court (in the family proceedings court), county court, or the High Court (in the Children Branch of the Family Division). Adoption differs from fostering in that it affects all the parents' rights and duties and it is a permanent change. After adoption the natural parents are (except for the rules relating to *affinity and *incest) no longer considered in law to be the parents of the child, who is henceforth regarded as the legal child of the adoptive parents (See also adoptive relationship). However, the court may make a contact order (See section 8 orders) at the time the adoption order is made. Contact after adoption is becoming a contentious issue and recently the court has allowed a natural parent to seek permission to apply for a contact order in respect of an adopted child.

The first (but not the only) consideration in deciding whether or not a child should be adopted is whether the adoption would safeguard and promote the welfare of the child. The court must, if possible, try to ascertain the child's wishes and in addition take account of all the circumstances. This may involve consulting expert opinion (e.g. of psychiatrists or social workers). The court may also appoint a *children's guardian to act in the child's interests. There are many provisions in the Adoption Act 1976 as amended by the Children Act 1989 designed to make sure that an adoption would be in the child's best interests. Every local authority must set up an *adoption service, and *adoption societies are carefully controlled; in addition, the government is anxious to increase the adoption of children who are currently in the care of the local authority. There are rules as to who may adopt and who may be adopted and provisions for a probationary period, during which the child lives with the would-be adopter(s) and the court assesses whether he gets on well with them. One of the ways in which a commissioning couple may attain the legal status of parents in relation to a child born to a surrogate mother is by adopting the child; however, this is becoming less common now that the couple can apply for a *section 30 order (parental order) under the Human Embryology and Fertilization Act 1990.

See surrogacy; human assisted reproduction.

Normally a child cannot be adopted without the consent of each of its parents or guardians, but in some cases the court may make an adoption order without the parents' consent (e.g. if they cannot be found or have ill-treated the child). If the court thinks that the parents are refusing unreasonably to agree to an adoption that would be in the child's best interests, it may make an adoption order against the parents' wishes. A parent may consent either to a specific adoption or to an order *freeing for adoption by whomever the court eventually decides is best suited to adopt the child. Since the Children Act 1989 the courts now have the option of making a section 8 order either instead of an adoption order, so that parental responsibility may be shared (e.g. a residence order), or in addition to it (e.g. a contact order). Adoption law is currently under review and there are recommendations to make it a duty of the court, when considering whether to make an adoption order, to consider alternative orders available under the Children Act, and to bring adoption law in line with the principles of the Act by making the child's welfare of paramount importance in adoption proceedings. In addition, a court will be able to dispense with parental consent if the welfare of the child demands this.

The Registrar General must keep a register containing details of all adoption orders, which any member of the public may consult. An adopted child over the age of 18 has a right to see a copy of his original birth certificate in order to find out who his natural parents are. Although natural parents can register their interest in contacting their children who have been adopted, they have no corresponding right to trace these adopted children.

2. Reliance by a court on a rule of international law that has not been expressly made part of the law of the land but is not inconsistent with it.

3. The decision of a local authority or similar body to bring into force in their area
an Act of Parliament conferring powers on them at their option.

adoption agency

A local authority or an approved *adoption society. Usually only adoption agencies may make arrangements for adoption.

Adoption Contact Register

A register, maintained by the Registrar General. containing the names and addresses of all adopted persons who are over the age of 18, have a copy of their birth certificate, and wish to contact a relative, together with details of relatives who wish to make contact with an adopted person.

adoption order

See adoption.

adoption service

Under the Adoption Act 1976, the different services, collectively, that local authorities must provide within their area in order to meet the needs of *adoption. These services include provision of accommodation for pregnant women and mothers, making arrangements for placing children with prospective adopters, and advising people with adoption problems.

adoption society

A group of people organized to make arrangements for the *adoption of children. Adoption societies must be approved by the Secretary of State before acting as such.

adoptive leave

See parental leave.

adoptive father

adoptive mother

Date: 2015-01-29; view: 1115