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╬xford_dictionary_of_law 4 page

allocation

n.

The stage in civil litigation when a decision is made as to how the case is to be dealt with. After each of the parties has completed and filed an *allocation questionnaire, allocation is made to one of three tracks:

(1) the *small claims track for cases worth less than £5000;

(2) the *fast track for cases worth between £5000 and £15,000; and

(3) the *multi-track for cases worth more than £15,000. After allocation has taken place, the court will proceed to give standard directions as to how the case should proceed. This stage was formerly (before the introduction of the Civil Procedure Rules in 1999) referred to as setting down for trial.

See also case management.

allocation questionnaire

A questionnaire that (except in certain circumstances) is served on both parties in civil litigation when the defendant has filed a defence. The completion of this document enables the court to allocate the case to the most appropriate track (See allocation). The completed form will contain such information as the monetary value of the claim, the complexity of the case, the number of litigants involved, whether there are any counterclaims, the parties' track of choice, whether time is needed to allow for settlement (known as a 'stay'), and whether all or any applicable *pre-action protocols have been observed.

Failure to complete the questionnaire and return it to the appropriate place by the date specified may lead to the claim being struck out. On receipt, the court will allocate the case to a track, primarily based on the value of the claim but also considering the other information supplied in the questionnaire.

allotment

n.

A method of acquiring previously unissued shares in a *limited company in exchange for a contribution of capital. An application for such shares will often be made after the issue of a *prospectus on the *flotation of a *public company or on the privatization of a state-owned industry. The company accepts the application by dispatching a letter of allotment to the applicant stating how many shares he has been allotted; he then has an unconditional right to be entered in the *register of members in respect of those shares. If he has been allotted fewer shares than he has applied for, he receives a cheque for the unallotted balance (an application must be accompanied by a cheque for the full value of the shares applied for).

See also authorized capital; return.

alteration

n.

A change that, when made in a legal document, may affect its validity. An alteration in a will is presumed to have been made after execution and will therefore be invalid. However, it will be valid if it is proved to have been made before execution or if it was executed in the same way as the will itself. If the alteration is duly attested by the testator and the witnesses placing their initials or signatures by it, it is presumed to be valid. If an invalid alteration completely obliterates the original words, it is treated as a blank space. If the original words can still be read, they remain effective. Alterations in deeds are presumed to have been made before execution. Alterations made after execution do not affect the validity of the deed If their purpose is to correct an obvious error. If, however, a material alteration is made to a deed after execution without the consent of the parties, the deed may become void in part.



See also amendment.

alteration of share capital

An increase, reduction (See reduction of capital), or any other change in the *authorized capital of a company. If permitted by the *articles of association, a limited company can increase its authorized capital as appropriate. It can also rearrange its existing authorized capital (e.g. by consolidating 100 shares of £1 into 25 shares of £4 or by subdividing 100 shares of £1 into 200 of 50p) and cancel unissued shares. These are reserved powers (See general meeting), exercised - unless the articles of association provide otherwise - by an *ordinary resolution.

alternative dispute resolution

ADR

(alternative dispute resolution, ADR)

Any of a variety of techniques for resolving civil disputes without the need for conventional litigation. It may include mini-trial (a shortened and simplified form of court hearing), informal methods of *arbitration, and structured forms of conciliation using a specially trained mediator acting as a go-between (See mediation).

Alternative Investment Market

AIM

(Alternative Investment Market, AIM)

See stock exchange.

alternative verdict

A verdict of not guilty of the offence actually charged but guilty of some lesser offence not specifically charged. Such a verdict is only permitted when there is insufficient evidence to establish the more serious offence but the evidence given is sufficient to prove the lesser offence. If, for example, in a murder case there is evidence that the defendant lacked *malice aforethought, an alternative verdict of manslaughter may be returned.

ambiguity

n.

Uncertainty in meaning. In legal documents ambiguity may be patent or latent.

A patent ambiguity is obvious to anyone looking at the document; for example, when a blank space is left for a name.

A latent ambiguity at first appears to be an unambiguous statement, but the ambiguity becomes apparent in the light of knowledge gamed other than from the document. An example is "I give my gold watch to X", when the testator has two gold watches. In general, *extrinsic evidence can be used to clarify latent ambiguities, but not patent ambiguities. Extrinsic evidence cannot be used to give a different meaning to words capable of ordinary interpretation.

ambulatory

adj.

(of a will)

Taking effect not from when it was made but from the death of the testator. Thus descriptions of property bequeathed or of beneficiaries are taken to refer to property or persons existing at that time. The will remains revocable until death.

ameliorating waste

Alterations made by a tenant that improve the land he leases.

See waste.

amendment

n.

1. Changes made to legislation, for the purpose of adding to, correcting, or modifying the operation of the legislation.

2. Changes made to the *statement of case used in civil litigation. Changes in the parties' knowledge of the case as it proceeds may require alterations in the claim form, defence, or other documents. For example, an amendment will be necessary in order to add the name of a second defendant to the claim. On occasion, errors need to be corrected. The Civil Procedure Rules make clear that amendments may be allowed (1) with the consent of all parties, (2) with the permission of the court, or (3) in the absence of consent and without the court's permission, provided the amendment is made before the claim is served. The court may impose the penalty of costs on the party seeking the amendment if this has been made necessary by negligence. Not every minor development in the litigation, however, needs to be reflected in an amendment, only those changes that will have a real effect on the litigation.

3. An alteration of a *treaty adopted by the consent of the *high contracting parties and intended to be binding upon all such parties. An amendment may involve either individual provisions or a complete review of the treaty.

a mensa et thoro

(Latin)

From board and bed. A decree of divorce a mensa et thoro was the forerunner of the modern judicial separation order.

See also avinculo matrimonii.

amicus curiae

(Latin: friend of the court)

Counsel who assists the court by putting arguments in support of an interest that might not be adequately represented by the parties to the proceedings (such as the public interest) or by arguing on behalf of a party who is otherwise unrepresented. In modern practice, when a court requires the assistance of an amicus curiae it is customary to invite the *Attorney General to attend, either in person or by counsel instructed on his behalf, to represent the public interest, but counsel have been permitted to act as amicus curiae on behalf of professional bodies (e.g. the Law Society).

amnesty

n.

An act erasing from legal memory some aspect of criminal conduct by an offender. It is most frequently granted to groups of people in respect of political offences and is wider than a *pardon, which merely relieves an offender of punishment.

Amsterdam Treaty

The EU treaty signed in Amsterdam in 1997(in force from 1 May 1999), which amended provisions of the *Treaty of Rome (European Community Treaty) and the *Maastricht Treaty (Treaty on European Union). Among other effects, the Amsterdam Treaty increased the powers of the European Parliament by extending the *codecision procedure to all areas covered by qualified majority voting and enabled the *Social Chapter to be incorporated into the Treaty of Rome.

ancient lights

An *easement acquired by lapse of time (See prescription) resulting from 20 years' continuous enjoyment of the access of light to the claimant's land without any written consent from the owner of the land over which the easement is claimed.

ancillary credit business

A business involved in credit brokerage, debt adjusting, debt counselling, debt collecting, or the operation of a credit-reference agency. Credit brokerage includes the effecting of introductions of individuals wishing to obtain credit to persons carrying on a *consumer-credit business. Debt adjusting is the process by which a third party negotiates terms for the discharge of a debt due under *consumer-credit agreements or *consumer-hire agreements with the creditor or owner on behalf of the debtor or hirer. The latter may also pay a third party to take over his obligation to discharge a debt or to undertake any similar activity concerned with its liquidation. Debt counselling is the giving of advice (other than by the original creditor and certain others) to debtors or hirers about the liquidation of debts due under consumer-credit agreements or consumer-hire agreements. In debt collecting, someone other than the creditor takes steps to procure the payment of debts owing to him. A creditor may engage a debt collector for this purpose. A credit-reference agency collects information concerning the financial standing of individuals and supplies this information to those seeking it. The Consumer Credit Act 1974 provides for the licensing of ancillary credit businesses and regulates their activities.

ancillary probate

A grant of probate to an executor appointed under a foreign jurisdiction to enable him to deal with assets of the deceased in the UK.

ancillary relief

A court order incidental to another order or application. It usually refers to a *financial provision order or a *property adjustment order made in the course of proceedings for divorce, separation, or nullity under the Matrimonial Causes Act 1973. Such orders are made on or after granting the decree.

ancillary restraint

A restriction that is imposed as part of a larger transaction. In relation to the EU *merger rules, there is a notice setting out for how long and on what terms ancillary restraints are permitted in the context of such arrangements.

angary

n.

The right of belligerent states to make use of (or destroy if necessary) neutral property on their own or on enemy territory or on the open sea, for the purpose of offence and defence. Traditionally, the right (jus angariae) was restricted to the belligerent laying an *embargo on and seizing neutral merchant ships in its harbours and compelling them and their crews to transport troops, ammunition, and provisions to certain places on payment of freight in advance. However, all sorts of neutral property, including vessels or other means of transport, arms, ammunition, provisions, or other personal property, may be the object of the modern right of angary, provided the articles concerned are serviceable to military ends and wants.

animals

pl. n.

See classification of animals.

animus

n.

(Latin)

Intention. The term is often used in combination; for example, animus furandi - the intention to steal; animus manendi - the intention to remain in one place (for the purposes of the law relating to *domicile).

annexation

n.

(in international law)

The acquisition of legal sovereignty by one state over the territory of another, usually by *occupation or conquest. Annexation is now generally considered illegal in international law, even when it results from a legitimate use of force (for example, in self-defence). It may subsequently become legal, however, by means of *recognition by other states. The annexing state is not bound by pre-existing obligations of the state annexed.

annual general meeting

AGM

(annual general meeting, AGM)

A meeting of company members required by the Companies Act 1985 to be held each calendar year. Not more than 15 months should elapse between meetings, and 21 days' written notice (specifying the meeting as the annual general meeting) must usually be given. AGMs are concerned with the accounts, directors' and auditor's reports, dividends, the election of directors, and the appointment and remuneration of the auditor. Other matters are treated as *special business.

See also elective resolution; general meeting.

annual return

A document that registered companies are required by law to send to the *Companies Registry, usually each year. It includes information concerning the type of company and its business activities, the registered office, directors, company members, and certain company debts. It is open to public inspection. Failure to file the return is a criminal offence and may lead to the company being removed from the register and fined.

See registration of a company.

annual value of land

The annual rent that might reasonably be expected from letting land or buildings, if the tenant pays all usual rates and taxes while other expenses (including repairs) are borne by the landlord. It is used in assessing *rates. The Inland Revenue carries out the valuation.

annuity

n.

A sum of money payable annually for as long as the beneficiary (annuitant) lives, or for some other specified period (e.g. the life of another person (pur autre vie) or the minority of the annuitant). An annuity left by will is treated as a pecuniary legacy. An annuity may be charged on, or directed to be paid out of, a particular fund or it may be unsecured. A joint annuity, in which money is payable to more than one annuitant, terminates on the death of the last survivor.

See also rentcharge.

annulment

n.

1. A declaration by the court that a marriage was never legally valid. In all cases of nullity except nonconsummation, a decree of annulment will only be granted within three years after the celebration of the marriage.

See also nullity of marriage.

2. The cancellation by a court of a *bankruptcy order, which occurs when it considers that the debtor was wrongly made bankrupt, when all the debts have been paid in full, or when the court approves a *voluntary arrangement. The power of annulment is discretionary. Annulment does not affect the validity of any sale of property or other action that has already taken place as a result of the bankruptcy order.

3. The cancellation of *delegated legislation by resolution of either House of Parliament.

4. The setting aside of legislation or other action by the *European Court of Justice.

annus et dies

(Latin)

A year and a day. At common law, the Crown was entitled to take possession of the lands of a person convicted of felony and to exploit them without reserve for a year and a day. This was known as the right of year, day, and waste.

answer

n.

1. A reply to a request for further information (See interrogatory).

2. A statement of case served by the respondent to a petition, e.g. an answer to a divorce petition. It is equivalent to the *defence served by the defendant in response to a claim form.

antecedents

pl. n.

An accused or convicted person's previous criminal record or track claim or in specialist proceedings or (2) an appeal itself from a county court judge. Where two or more High Court judges sit as a Divisional Court, appeals are permitted. In the Chancery Divisional Court, appeals may be heard from certain tribunals, e.g. the Inland Revenue Commissioners, and from the county courts for such matters as bankruptcy appeals. In the Family Divisional Court, appeals may be heard from the magistrates' courts and the county courts, typically in respect of financial provision under the Domestic Proceedings and Magistrates' Court Act 1978. In the Queen's Bench Divisional Court, appeals may be heard, when circumstances demand, from the magistrates' courts, the Crown Court, and various tribunals by way of case stated and in matters of *judicial review and *habeas corpus. The Court of Appeal (Civil Division) is able to hear appeals from the county courts (except in bankruptcy cases) by way of the leapfrog procedure (Court of Appeal), and appeals from the High Court and various tribunals. The House of Lords will hear appeals primarily from the Court of Appeal but can hear appeals from the High Court under the *leapfrog procedure (House of Lords).

applicable law

The laws of a jurisdiction that apply to a particular transaction or agreement. Many countries are signatories of the international Rome Convention (1980; in force from 1 April 1991), which provides that the parties' choice of law will be respected and, in the absence of a term in the relevant agreement, the country's laws with the closest connection with the contract will apply.

applicant

n.

A person who applies for something, especially court relief.

applying the proviso

See proviso.

appointed day

The date specified in an Act of Parliament (or in a commencement order) for its coming into force.

appointee

n.

1. A person in whose favour a *power of appointment is exercised.

2. A person selected for a particular purpose.

appointment

n.

See power of appointment.

appointor

n.

A person given a *power of appointment to exercise.

approbate and reprobate

To accept and reject. A person is not allowed to accept the benefit of a document (e.g. a deed of gift) but reject any liabilities attached to it.

appropriation

n.

1. (in administrative law) The allocation of a sum of money to a particular purpose. The annual Appropriation Act authorizes the issue from the Consolidated Fund of money required to meet government expenditure and allocates it between departments and by reference to itemized heads of expenditure.

2. (in criminal law)

See theft.

appropriation of payments

The allocation of one or more payments to one particular debt out of several owed by a debtor to the same creditor. The power of allocation belongs in the first instance to the debtor, but if he does not make an appropriation at the time of payment, then the creditor may do so. In the case of current accounts, in the absence of an express appropriation, payments are normally appropriated to the oldest outstanding debt.

appropriations in aid

Day-to-day revenue received by government departments and retained to meet expenditure instead of being paid into the Consolidated Fund.

approximation of laws

The process by which member states of the EU change their national laws to enable the free market to function properly. It is required by the Treaty of Rome.

Compare harmonization of laws.

appurtenant

adj.

Attached or annexed to land and enhancing the land or its use. An *easement must be appurtenant to a *dominant tenement but a *profit à prendre need not. Thus a right of way over land in Yorkshire granted to a Sussex landowner does not benefit his Sussex property and is not an easement, but a right to shoot game over the Yorkshire land could give a man in Sussex (whether landowner or not) a valid profit à prendre.

a priori

(Latin: from the previous (i.e. from cause to effect))

Describing or relating to reasoning that is based on abstract ideas, anticipates the effects of particular causes, or (more loosely) makes a presumption that is true as far as is known, i.e. deductive reasoning.

Compare a posteriori.

arbitrary punishment

See punishment.

arbitration

n.

The determination of a dispute by one or more independent third parties (the arbitrators) rather than by a court. Arbitrators are appointed by the parties in accordance with the terms of the *arbitration agreement or in default by a court. An arbitrator is bound to apply the law accurately but may in general adopt whatever procedure he chooses and is not bound by the *exclusionary rules of the law of evidence; he must, however, conform to the rules of *natural justice. In English law, arbitrators are subject to extensive control by the courts, with respect to both the manner in which the arbitration is conducted and the correctness of the law that the arbitrators have applied, although this control was loosened to some extent by the Arbitration Act 1996. The judgment of an arbitrator is called his award, which can be the subject of an *appeal to the High Court on a question of law under the provisions of the Arbitration Act 1996. A 1979 Arbitration Act abolished the old *special case procedure. In some types of arbitration it is the practice for both parties to appoint an arbitrator. If the arbitrators fail to agree about the matter in dispute, they will appoint an umpire, who has the casting vote in making the award. English courts attach great importance to arbitration and will normally stay an action brought in the courts in breach of a binding arbitration agreement.

See also alternative dispute resolution.

The modern origins of international arbitration can be traced to the Jay Treaty (1784) between the USA and the UK, which provided for the determination of legal disputes between states by mixed commissions. The *Hague Conventions of 1899 and 1907 contained rules of arbitration that have now become part of customary international law. The 1899 Conventions created the Permanent Court of Arbitration, which was not strictly speaking a court but a means of providing a body of arbitrators on which the parties to a dispute could draw. Consent to arbitration by a state can be given in three ways:

(1) by inclusion of a special arbitration clause in a treaty;

(2) by a general treaty of arbitration, which arranges arbitration procedures for future disputes; and

(3) by a special arbitration treaty designed for a current dispute.

arbitration agreement

A contract to refer a present or future legal dispute to *arbitration. Such agreements are of two kinds: those referring an existing dispute to arbitration and those relating to disputes that may arise in the future. The second type is much more common. No particular form is necessary, but the agreement should name the place of arbitration and either appoint the arbitrator or arbitrators or (more usually) define the manner in which they are to be appointed in the absence of agreement between the parties. The agreement should also set out the procedure for appointing an umpire if two arbitrators are involved and they fail to agree.

arbitration clause

An express term of a contract in writing (usually of a commercial nature) constituting an agreement to refer disputes arising out of the contract to *arbitration.

archipelago

n.

A collection of islands (including parts of islands, interconnecting waters, and other natural features) so closely interrelated that they form an intrinsic geographical, economic, and political entity, or which historically have been regarded as such. An example is the Galapagos Islands. In contrast, an archipelagic state has been defined by the Convention on the Law of the Sea (1982) as a state comprising one or more archipelagos; it may also include other islands. An example of an archipelagic state is the Bahamas.

See also territorial waters.

Area Child Protection Committee

A committee that advises and reviews local practice and procedure for inter-agency cooperation and training with regard to children in need of protection by local authorities. It is made up of representatives from the various professions and agencies concerned with children.

argumentative affidavit

An *affidavit containing not only allegations of fact but also arguments as to the bearing of those facts on the matter in dispute.

armchair principle

A rule applied in the *interpretation of wills, enabling circumstances existing when the will was made to be used as evidence to elucidate the meaning of words appearing in the will. For example, such evidence may establish the identity of a beneficiary referred to in the will only by a nickname. The phrase originates from a well-known judicial observation that one may, when construing a will, "place \[oneself\] in the testator's armchair and consider the circumstances by which he was surrounded when he made his will".

arraign

v.

To begin a criminal *trial on indictment by calling the defendant to the bar of the court by name, reading the indictment to him, and asking him whether he is guilty or not. The defendant then pleads to the indictment, and this completes the arraignment.

arrangement

n.

1. (in commercial and company law)

See deed of arrangement; scheme of arrangement; voluntary arrangement.

2. (in international law)

See treaty.

array

n.

See challenge to jury.

arrest

n.

The apprehension of a person suspected of criminal activities. Most arrests are made by police officers, although anybody may, under prescribed conditions. effect an arrest. In some cases the constable must have a *warrant of arrest signed by a magistrate, which must be shown to the accused (though not necessarily at the time of arrest). However, a warrant is not required for *arrestable offences. Further, a constable who reasonably suspects that a nonarrestable offence has been or is being committed may arrest the suspect if (1) he thinks that service of a *summons is impracticable or inappropriate because a "general arrest condition" is satisfied (for example, if he reasonably believes that arrest is necessary to prevent the suspect causing injury) or (2) he has specific statutory power to make the arrest without warrant (e.g. for *drunken driving or *soliciting) or common-law power (See breach of the peace). When an arrest is made, the accused must be told that he is being arrested and given the ground for his arrest. A policeman has power to search the person he is arresting for any property that may be used in evidence against him. Anyone making or assisting in an arrest may use as much force as reasonable in the circumstances. Resisting lawful arrest may involve the crime of *assault or *obstructing a police officer. A person who believes he has been wrongfully arrested may petition for *habeas corpus and may sue the person who arrested him for *false imprisonment.

See also bail; caution; detention; remand.

arrestable offence

An offence for which there is a fixed mandatory penalty or which carries a sentence of at least five years' imprisonment (e.g. theft). There are also some crimes that are specified to be arrestable offences even though they do not fulfil the usual conditions. For example, taking someone else's motor car for temporary use is arrestable even though it carries a maximum of only three years' imprisonment. Inciting, attempting, or conspiring to commit, or being an accessory to, an arrestable offence is also an arrestable offence. All other crimes are termed nonarrestable offences. Anyone may lawfully *arrest, without a *warrant, a person who is in the act of committing an arrestable offence or whom he reasonably suspects to be in the act of committing it. If an arrestable offence has been committed, anyone may subsequently arrest, without warrant, a person who is, or whom he reasonably suspects is, guilty of the offence. A constable who reasonably suspects that an arrestable offence has been committed may arrest anyone he reasonably suspects to be guilty of it. He may also arrest someone who is about to commit (or whom he reasonably suspects is about to commit) such an offence. A police officer may also enter and search any place he suspects is harbouring a person who may be arrested for an arrestable offence. There are also special offences of *impeding apprehension or prosecution of persons guilty of an arrestable offence or concealing (for gain) information relating to such offences.

arrested development


Date: 2015-01-29; view: 192


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