Lord Chief Justice 5 page

noncommercial agreement

A *consumer-credit agreement or a *consumer-hire agreement that is made by a creditor or owner but not in the course of a business carried on by him. Such an agreement is outside certain of the provisions of the Consumer Credit Act 1974.

noncontentious business

Any business of a solicitor that is not *contentious business, i.e. it is business of a nonlitigious character.

nondisclosure

n.

1. (concealment) (in contract law) The failure by one party, during negotiations for a contract, to disclose to the other a fact known to him that would influence the other in deciding whether or not to enter into the contract. A full duty of disclosure exists only in the case of contracts *uberrimae fidei, which are usually contracts of insurance. If the person to be insured tells an untruth, the contract will (like any other) be voidable for *misrepresentation; if this person also suppresses a material fact, it will be voidable for nondisclosure. In the case of other contracts, there is no general duty to volunteer information and mere silence cannot constitute misrepresentation. There is, however, a very limited duty of disclosure. A person who does volunteer information must not tell only a partial truth and must correct any statement that subsequently becomes to his knowledge untrue; breach of this duty will render the contract voidable for misrepresentation.

2. (in court procedure) Failure of a party to include a document that should have been disclosed in his list of documents (See disclosure and inspection of documents). The other party may seek an order for specific disclosure of the document or an order requiring the party making disclosure to verify his list of documents by *affidavit.

nondiscrimination notice

Notice served by the Commission for Racial Equality or by the Equal Opportunities Commission requiring an offender who has practised illegal *racial discrimination or *sex discrimination not to commit such acts.

non est factum

(Latin, from non est factum suum, 'it is not his deed')

A plea that an agreement (originally a deed) mentioned in the statement of case was not the act of the defendant. It can be used as a defence to actions based on *mistakes in documents when the defendant was fundamentally mistaken as to the character or effect of the transaction embodied in the document.

nonfeasance

n.

Failure to perform an act required by law. Until 1961, a highway authority guilty of nonfeasance by failing to carry out repair and maintenance was not liable for injuries caused because of this. It was, however, liable for *misfeasance. The defence of nonfeasance was then abolished by statute, but an authority can plead instead the statutory defence that it took all reasonable care to secure that the highway was not dangerous.

nongovernmental organization

(NGO)

A private international organization that acts as a mechanism for cooperation among private national groups in both municipal and international affairs, particularly in economic, social, cultural, humanitarian, and technical fields. Under Article 71 of the United Nations Charter, the Economic and Social Council is empowered to make suitable arrangements for consultation with NGOs on matters within its competence.

nonjoinder

n.

A plea in *abatement alleging that the claimant had failed to join all necessary parties in the action. In modern practice this does not cause the action to abate but it can be rectified by *amendment.

nonjury list

A list of cases for trial by judge alone in the High Court.

See also lists.

nonmolestation order

A wide-ranging order under the Family Law Act 1996 restraining a person (the respondent) from attacking or going near someone associated with the respondent (such as a cohabitant, spouse, or parent) or from otherwise doing what the court orders him not to do.

See also battered spouse or cohabitant; molestation.

nonprovable debt

A debt that cannot be claimed in the course of *bankruptcy proceedings. Examples are *statute-barred debts and debts that cannot be fixed or estimated.

Compare probable debt.

nonresident parent

A parent who is not living with his or her child and who may be liable to pay *child support maintenance. Nonresident parents were formerly known as absent parents.

nonsuit

n.

1. The withdrawal by a judge of a case from a jury with a verdict being entered in favour of the accused.

2. Formerly, a claimant's withdrawal from a civil court action.

non-user

n.

The failure to exercise a right over land, which may be extinguished if the non-user continues for a sufficient period.

See limitation of actions.

Northern Ireland Assembly

A body established under the Northern Ireland Act 1998. It consists of 108 elected members and has limited primary legislative powers in such areas as agriculture, the environment, economic development, health, education, and social security.

See devolution.

notary (notary public)

n.

A legal practitioner, usually a solicitor, who attests or certifies deeds and other documents and notes or *protests dishonoured bills of exchange. Ecclesiastical notaries are usually diocesan registrars and the legal secretaries of bishops; general notaries may practise anywhere in England and Wales; and district notaries practise in a limited area. Diplomatic and consular officials may exercise notarial functions outside the UK.

not guilty

1. A denial of the charges by an accused person in court. If there is more than one charge, the accused may plead guilty to some and not guilty to others.

2. A *verdict finding that an accused person has not committed the offence with which he was charged. However, he may, at the same time, be found guilty of other offences.

See also acquittal; insanity.

notice

n.

1. Knowledge of a fact. A person is said to have *actual notice of anything that he actually knows; *constructive notice of anything that he ought reasonably to know (for example, any fact that he would have discovered if he had made any inquiry that a reasonable man would have made); and *imputed notice of anything of which any agent of his has actual or constructive notice.

2. (in employment law) Formal notification, given by either of the parties to a contract of employment, that the contract is to be terminated after a specified period. The period of notice to which each party is entitled is governed by the contract, subject to statutory minimum periods if the employee has been continuously employed in the business (See continuous employment) for more than four weeks. An employee who has been so employed for up to two years is entitled to a week's notice; one employed for a longer period is entitled to one week's notice for each year's continuous employment up to 12 years. Thus an employee who has been employed for 20 years must be given a statutory minimum of 12 weeks' notice, although his employment contract may entitle him to a longer period, which takes priority. An employee with four weeks' continuous employment must give at least one week's notice of his resignation. An employee whose conduct justifies immediate dismissal is treated as waiving his right to notice, as is an employer whose conduct amounts to *constructive dismissal. A fixed-term contract cannot be terminated by notice unless the contract expressly provides for this.

3. (in land law) An entry against a registered title that may be lodged by a person with a right or interest in the land comprised in the title. The rights and interests that may be protected by a notice are listed in the Land Registration Act 1925, and a notice must always specify the right or interest it seeks to protect. A notice differs from a *caution or an *inhibition in that dealings with the land affected may still take place, but they will have effect subject to the right or interest protected by the notice.

4. (in *Community legislation) A nonbinding document. Notices are often issued by the European Commission to explain further details of a competition regulation, for example in relation to exclusive distribution and purchasing agreements, cooperation agreements, subcontracting agreements, agency agreements, and the distinction between cooperative and concentrative *joint ventures. Notices are not binding on the Commission, whereas regulations are; however, in practice it would be very rare for the Commission to depart from policies set out in a notice.

notice of abandonment

See abandonment; constructive total loss.

notice of discontinuance

Notice served by a claimant (or by a defendant in respect of a *counterclaim) voluntarily giving up all or part of a claim. In general, a claimant may discontinue by filing a notice of discontinuance with the court and serving copies on all parties. Discontinuance does not require the permission of the court except in the following circumstances: (1) when an interim injunction has been granted; (2) when an undertaking to the court has been given; (3) when the claimant has received an interim payment; or (4) when there is more than one claimant.

notice of dishonour

A notice that must be given by the holder of a *bill of exchange to the drawer and to each endorser when the bill has been dishonoured; any drawer or endorser to whom notice is not given is discharged. The notice must identify the bill and state that it has been dishonoured by nonacceptance or nonpayment. The notice must be given within a reasonable time of the *dishonour (to which strict rules apply). Certain excuses are recognized for failure to give notice or delay.

notice of intended prosecution

A written notice issued to someone charged with any of certain specified driving offences stating that he or she will be prosecuted. These offences are: *speeding, *dangerous driving, *careless and inconsiderate driving, *ignoring traffic signals, and leaving a car in a dangerous position (See obstruction). If the offender was not warned when he committed the offence that he might be prosecuted for it, he cannot normally be subsequently prosecuted unless he is served with either a summons or a notice of intended prosecution within 14 days of committing the offence. If he is prosecuted nonetheless, he may appeal against his conviction. If the notice was posted by registered or recorded mail so that it would normally have arrived within the 14 days, the motorist cannot plead that he did not receive it within that time. It is not necessary to serve a notice of intended prosecution when:

(1) an accident happened at the time of the alleged offence owing to the presence on the road of the car involved in the alleged offence;

(2) it was not possible to find out the name and address of the accused (or registered owner) in time; or

(3) the motorist is charged with *causing death by dangerous or careless driving or *drunken driving.

notice to produce

Notice by one party to a civil action requiring another to produce documents in his possession at the trial. If he fails to do so, *secondary evidence of the documents may be given. If there has been *disclosure and inspection of documents, the person making disclosure is deemed to be on notice to produce the documents that he stated were in his possession, custody, or power.

notice to quit

The formal notification from a landlord to a tenant (or vice versa) terminating the tenancy on a specified date. The notice must be clear and unambiguous and it must terminate the tenancy in relation to the whole of the rented property: a notice to quit part of the property can be valid only if specifically allowed by the tenancy. When the tenant lives in the rented property, the notice to quit must be in a statutory form that tells the tenant his legal rights. Otherwise no particular form is required for a notice to quit.

The period of notice varies according to the kind of tenancy and any agreement between the parties. In the case of periodic tenancies for which no period has been agreed the following periods apply: a yearly or longer tenancy - six months; a monthly tenancy - one month; a quarterly tenancy - one quarter; a weekly tenancy - one week. The notice must be given so that it expires at the end of one of the periods of the tenancy, for example in a yearly tenancy beginning on 1 January, the notice must expire on 31 December. If tenants have statutory protection this can affect the length of the notice to quit. Thus residential tenants must be given at least four weeks' notice, tenants of *agricultural holdings must be given a year's notice, and tenants of business tenancies (*business tenancy) are entitled to at least six months' notice. In these cases a tenant may be entitled to continue in occupation of the rented property even after the notice to quit has expired. If the landlord treats the tenancy as continuing after the notice to quit has expired, a new tenancy may be created.

notice to treat

A notice required to be given, under the Compulsory Purchase Act 1965, by an acquiring authority to all persons interested in or having power to sell and conveyor release land proposed to be compulsorily acquired (See compulsory purchase). The notice must give particulars of the land concerned, demand particulars of the recipient's estate and interest in the land and of his claim in respect of it, and state that the acquiring authority is willing to negotiate for the purchase of the land and regarding compensation payable for damage.

noting a bill

See protest.

not negotiable

Words marked on a crossed cheque indicating that a transferee for value of the cheque gets no better title to it than his transferor had. Since the Cheques Act 1992 most banks have printed cheques that are not negotiable. A bill of exchange so marked is not transferable.

not proven

A *verdict used in Scottish courts when the prosecution's case has not reached a sufficient standard of proof to establish the accused person's guilt, but there is some doubt about his innocence. The effect is the same as a not guilty verdict: the accused is released and cannot be tried again for the same offence.

novation

n.

The substitution of a new contract for one already existing. The new contract may be between the same parties or it may involve the introduction of a new party, as in the case of the substitution of debtors. If A owes B £100 and Bowes C £100, novation would occur if all three agreed that the existing debts were to be extinguished and that A is to pay C a new debt of £100. Novation should be distinguished from *assignment of a commercial agreement, in which no new agreement is needed and the benefit of a contract is transferred to the assignee.

novus actus interveniens

nova causa interveniens

(novus actus interveniens, nova causa interveniens)

(Latin: a new intervening act (or cause))

An act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings and therefore relieves the defendant from responsibility for these happenings.

See causation.

no win, no fee

See conditional fee agreement; maintenance and champerty.

nudum pactum

(Latin: naked agreement)

See consideration.

nuisance

n.

An activity or state of affairs that interferes with the use or enjoyment of land or rights over land (private nuisance) or with the health, safety, or comfort of the public at large (public nuisance). Private nuisance is a tort, protecting occupiers of land from damage to the land, buildings, or vegetation or from unreasonable interference with their comfort or convenience by excessive noise, dust, fumes, smells, etc. An action is only available to persons who have property rights (e.g. owners, lessees) or exclusive occupation. Thus, for example, lodgers and members of a property owner's family cannot sue in private nuisance.

Physical damage is actionable when the damage is of a type that is reasonably foreseeable and provided it does not arise solely because the claimant has put his land to a hypersensitive use. Interference with comfort is actionable when it is considered unreasonable as judged by a number of factors, the most important of which is the nature of the locality. The main remedies are damages and an injunction. Alternatively there is a limited right to abate (i.e. remove) the nuisance.

Public nuisance is a crime. At common law it includes such activities as *obstruction of the highway, carrying on an offensive trade, and selling food unfit for human consumption. The Attorney General or a local authority may bring a civil action for an injunction on behalf of the public but a private citizen may obtain damages in tort only if he can prove some special damage over and above that suffered by the public at large.

Statutory nuisances are created by provisions dealing with noise, public health, and the prevention of pollution and permit a local authority to control neighbourhood nuisances by the issue of an *abatement notice.

The Protection from Harassment Act 1997 enables individuals to be prevented from harassing their neighbours (See nuisance neighbours).

nuisance neighbours

People who disturb the lives of those living nearby by interfering with their *quiet enjoyment of their homes. The Protection from Harassment Act 1997 provides enhanced protection for those suffering *nuisance (including noise) from their neighbours. Restraining orders can be obtained, which require the offender to do what the court orders (e.g. not to communicate, go near, or harass their neighbours); in some circumstances *eviction may be ordered. Offenders threatening violence can be jailed for up to five years and/or be subjected to an unlimited fine; even if the harassment does not give rise to fear for safety, the offender faces up to six months in jail and/or a fine of up to £5000.

nulla poena sine lege

(Latin: no punishment without a law)

The principle that a person can only be punished for a crime if the *punishment is prescribed by law. The punishment may be specified by a statute as a term of imprisonment or fine or it may be based on common-law principles. With the exception of treason and murder, for which the punishment is fixed, all statutory punishments are expressed in terms of the maximum possible punishment; judges have discretion to impose a lesser punishment according to the circumstances. At common law punishment is said to be at large, i.e. the amount of the fine or length of the prison sentence is entirely at the judge's discretion. In many cases, however, there are now statutes specifying the maximum punishment for common-law offences. Magistrates' courts are subject to shorter maxima than Crown courts; they are also usually subject to a minimum sentence of five days in cases of imprisonment.

nullity of marriage

The invalidity of a marriage due to some defect existing at the time the marriage was celebrated (or, sometimes, arising afterwards). A marriage may be null in the sense that it is void, i.e. it was never in the eyes of the law a valid marriage (and the "spouses" are legally merely cohabitants). It may alternatively be voidable, i.e., valid until made void by a court decree of *annulment, which (since 1971) does not end the marriage retrospectively (so that, for example, the children of a marriage that is annulled will not be regarded as illegitimate). The form of decree, however, always states that the marriage "is and has been null and void". The main grounds for nullity are: close relationship, lack of age, lack of consent, and nonconsummation (See consummation of a marriage). When granting a decree of nullity the court has wide discretionary powers to make orders for *financial provision or *property adjustment.

See also legitimacy.

nullurn crimen sine lege

(Latin: no crime without a law)

The principle that conduct does not constitute crime unless it has previously been declared to be so by the law; it is sometimes known as the principle of legality. Some serious offences are well-defined common-law offences (although the details relating to their definition may often be unclear until ruled upon by the judges); many regulatory offences (e.g. those involving road traffic and the manufacture of products) are constantly being created by statute. The principle is violated by the power occasionally attributed to judges to create new offences in order to punish morally harmful conduct (such as *conspiracy to outrage public decency).

nunc pro tunc

(Latin: now instead of then)

A phrase used of a judgment that is entered in such away as to have legal effect from an earlier date.

nuncupative will

An oral statement directing how property is to be distributed after death, Except in the case of *privileged wills and *donatio mortis causa, such statements have no effect in English law.

oath

n.

A pronouncement swearing the truth of a statement or promise, usually by an appeal to God to witness its truth. An oath is required by law for various purposes, in particular for *affidavits and giving evidence in court. The usual witness's oath is: "I swear by Almighty God that the evidence which I shall give shall be the truth, the whole truth and nothing but the truth". Those who object to swearing an oath, on the grounds that to do so is contrary to their religious beliefs or that they have no religious beliefs, may instead *affirm.

oath of allegiance

An oath to be faithful and bear true allegiance to the Crown. It is taken by members of both Houses at the opening of every new Parliament, by certain officers of the Crown on their appointment, and by those who become British citizens, British Dependent Territories citizens, British Overseas citizens or British subjects by registration, or British citizens or British Dependent Territories citizens by naturalization.

obiter dictum

(Latin: a remark in passing)

Something said by a judge while giving judgment that was not essential to the decision in the case. It does not form part of the *ratio decidendi of the case, and therefore creates no binding precedent, but may be cited as *persuasive authority in later cases.

objection in point of law

A form of pleading by a defendant in his defence that raises an issue of law. When such an objection is raised the court may order the issue to be tried as a *preliminary point of law.

objection to indictment

A procedure in which the accused in a *trial on indictment attempts to prove some objection to the indictment on legal grounds (e.g. that it contravenes, or fails to comply with, an enactment). The objection is raised by application to quash the indictment.

objects clause

See memorandum of association; ultra vires.

objects of a power

Persons in whose favour a *power of appointment may be exercised, i.e. potential appointees.

obligation

n.

1. A legal duty.

2. A *bond by deed.

obliteration

n.

The deletion of words in a will. An obliteration is valid only if the words deleted are indecipherable or if the alteration is properly signed and witnessed.

obscene publications

Material that tends to deprave or corrupt. Under the Obscene Publications Acts 1959 and 1964 it is an offence to publish an obscene article or to have an obscene article for publication for gain. For the purposes of the Acts, obscenity is not limited to pornographic or sexually corrupting material: a book advocating drug taking or violence, for instance, may be obscene. Whether or not particular material is obscene is a question of fact in each case, to be decided by the jury, and expert evidence is not usually permitted. Material that merely tends to shock or disgust is not obscene. The intention or motive of the author in writing or depicting the material is irrelevant.

"Publishing" an obscene article includes distributing, circulating, giving, hiring, or lending the article, offering it for sale or hire (the latter does not include displaying such material in a shop, which is merely an invitation to treat and not an offer), or transmitting it through the telephone system by means of a modem. An "article" may be material that is to be looked at or played over, rather than read, and can also include, for instance, a negative of a film or any article used to reproduce material to be read or looked at. This offence is one of *strict liability, but there is a defence of lack of knowledge, if the defendant can show he had not examined the article and had no reason to suspect that publishing it would constitute an offence. There is also a special defence of public good, which applies when the defendant shows that publication of the article was justified as being in the interests of science, literature, art, or learning. The offence of possessing an obscene article in the expectation that it will be published for financial gain is also subject to the defences of lack of knowledge and public good. If a magistrate suspects that obscene articles are kept in any premises for this purpose, he may issue a warrant authorizing the police to search for and seize the articles. If they prove to be obscene, the magistrate may order them to be forfeited.

The Acts do not apply to material published by means of television or broadcasting, but they do apply to cinema screening and theatre performances, subject to the rule that prosecutions in such cases require the consent of the Director of Public Prosecutions or the Attorney General, respectively. These offences, too, are subject to the public good defence.

There are also various special offences relating to obscenity, e.g. publishing obscene advertisements, sending unasked for material describing sexual techniques, or sending through the post any "indecent or obscene article" (the latter offence is limited to sexual obscenity, but also includes material that is merely indecent). It is an offence to take, make, distribute, or possess indecent photographs or pseudo-photographs of a child; a "pseudo-photograph" is an image, created by computer graphics or any other means, that resembles a photograph and can include electronically stored data that can be converted into such images. These offences are *arrestable offences, which may be tried either summarily or on *indictment and attract a sentence of up to six months' imprisonment and/or a fine on level 5.

obscene telephone calls

It is a *summary offence to make an obscene, offensive, or annoying telephone call. The maximum punishment is three months' imprisonment and/or a *fine on level 5.

obstructing a police officer

The offence of hindering a police officer who is in the course of doing his duty. "Obstruction" includes any intentional interference, e.g. by physical force, threats, telling lies or giving misleading information, refusing to cooperate in removing an obstruction, or warning a person who has committed a crime so that he can escape detection (e.g. warning a speeding driver that there is a police trap ahead). It is not, however, an offence merely not to answer, or to advise someone not to answer, police questions that he does not have to answer. A police officer is acting in the course of his duty if he is preventing or detecting crime (in particular, breaches of the peace) or obeying the orders of his superiors. However, he is not acting in the course of his duty when he is merely assisting the public in some way unconnected with crime. When the obstruction amounts to an *assault, the offence is punishable by imprisonment and/or a fine. One may be guilty of this offence even if the police officer was in plain clothes. There is no power of arrest unless accompanied by a breach of the peace.

obstruction

n.

The offence of causing or allowing a motor vehicle, trailer, or other object to stand on a road in such a way that it is likely to impede other road users or to use a vehicle on the road in a similar way (e.g. by driving unreasonably slowly). It is unnecessary to show that any other vehicle or person has in fact been obstructed. This offence is punishable by a fine. It is also an offence to leave a motor vehicle on a road in such a position or in such circumstances that it is likely to cause danger to other road users. This offence requires a "notice of intended prosecution and is punishable by a. fine, *endorsement (which carries 3 penalty points under the totting-up system (*totting up)), and discretionary * disqualification.

obstruction of recovery of premises

See recovery of premises.

occupation

n.

1. (in land law) The physical possession and control of land. Under the Land Registration Act 1925 the proprietary rights of a person in actual occupation may be an *overriding interest binding a purchaser of registered land, unless inquiry is made of that person and the rights are not disclosed. Under the Family Law Act 1996, spouses have rights of occupation in the *matrimonial home by virtue of marriage, which may be capable of protection as *land charges.

Date: 2015-01-29; view: 759