Lord Chief Justice 7 page

orality

n.

The principle that evidence must be given orally and subject to *cross-examination unless *affidavit evidence is admissible.

order

n.

1. A direction or command of a court. In this sense it is often used synonymously with *judgment.

2. The document bearing the seal of the court recording its judgment in a case.

3. A subdivision of the *Rules of the Supreme Court and the County Court Rules.

order for account

An order in civil cases that the amount of money due from one party to another may be investigated. The order may be made before trial. Accounts are usually taken by a master or a referee and are most frequently ordered in partnership and trust matters.

order of discharge

A court order resulting in the *discharge of a bankrupt.

Orders in Council

Government orders of a legislative character made by the Crown and members of the Privy Council either under statutory powers conferred on Her Majesty in Council (See delegated legislation; statutory instrument) or in exercise of the *royal prerogative.

Compare orders of council.

Orders of Council

Orders of a legislative nature made by the Privy Council under statutory powers conferred on the Council alone. They relate mainly to the regulation of certain professions and professional bodies.

See delegated legislation.

Compare orders in council.

ordinance

n.

One of the forms taken by legislation under the *royal prerogative, normally legislation relating to UK dependencies.

ordinary resolution

A decision reached by a simple majority (i.e. of more than 50%) of company members voting in person or by proxy. It is appropriate where no other type of resolution is expressly required by the Companies Acts or the *articles of association.

Compare extraordinary resolution; special resolution.

ordinary share

See share.

original evidence

1. Evidence of a statement made by a person other than the testifying witness, which is offered to prove that the statement was actually made rather than to prove its truth. Thus, if in an action for slander a witness testifies that he heard the defendant defame the claimant, his testimony is original evidence and not *hearsay evidence.

2. See direct evidence.

originating summons

A form of originating *process in the High Court now rendered obsolete by the Civil Procedure Rules. Under the Rules, it has been replaced by the *Part 8 claim form.

origin system

A system for protecting products in which each is identified by means of an appellation of origin, which is similar to a trade mark but may only be used for a product from a particular region. The regulations, which cover many products, were agreed in March 1996. The scheme stops manufacturers, etc., from other regions from using local names, such as Stilton cheese, Newcastle Brown Ale, and Jersey Royal potatoes.

OSS

See Office for the Supervision Of Solicitors.

ouster

n.

The act of wrongfully dispossessing someone of any kind of *hereditament, such as freehold property.

See adverse possession.

ouster of jurisdiction

The exclusion of judicial proceedings in respect of any dispute. There is a presumption that statutes and other documents (e.g. contracts) do not oust the jurisdiction of the courts.

See interpretation of statutes.

outer Bar

(utter Bar)

Junior barristers, collectively, who sit outside the bar of the court, as opposed to *Queen's Counsel, who sit within it.

outraging public decency

See conspiracy.

outstanding term

See satisfied term.

outworker

n.

See teleworking.

overcrowding

n.

For statutory purposes a dwelling is overcrowded when two or more people of opposite sexes over the age of ten, and not married to one another or cohabiting, are obliged, because of lack of space, to sleep in the same room. There is also a test for overcrowding based on the number of people living in the dwelling compared with the number of rooms and the floor area of those rooms. Local authorities have a duty to prevent overcrowding and can take action against an owner-occupier, a landlord, or a tenant.

overreaching

n.

The process by which interests in land are converted on sale of the land into corresponding interests in the *capital money arising from the sale. Under the Settled Land Act 1925 the tenant for life always has the right to sell the settled land and overreach other interests, including interests in remainder and in reversion, with certain statutory exceptions (including the *principal mansion house).

Where land is held on a *trust of land, the law of Property Act 1925 provides that a purchaser of the land shall take free of the beneficiaries' interests, provided that the purchase money is paid to at least two trustees or a trust corporation. A mortgagee exercising his *power of sale is able to overreach the mortgagor's estate and *equity of redemption and convey the land free from the equitable right: the mortgagor's rights are transferred to the purchase money, the mortgagee being trustee of any such funds remaining after paying off the mortgage debt. Overreaching in general affects only equitable rights.

overriding interests

Certain rights and interests in registered land, listed in the Land Registration Act 1925, that cannot be protected by registration but, unless overreached, will bind the registered proprietor and any third party acquiring the land or any interest in it. The list includes legal *easements and profits à prendre (*profit à prendre), rights of persons in actual occupation, rights acquired under the Limitation Acts (See limitation of actions), and leases granted for terms of up to 21 years.

overrule

v.

To set aside the decision of a court in an earlier case. Because of the doctrine of *precedent, a court can generally only overrule decisions of courts lower than itself. The setting aside of the judgment of a lower court on appeal is called a reversal.

oversea company

A *foreign company with an established place of business in Great Britain. Such companies are obliged to comply with certain formalities, such as filing their constitution or charter at the *Companies Registry and giving details of their directors and of who is authorized to accept service of legal proceedings and notices in the UK.

overseas divorce

A divorce, annulment, or legal separation obtained overseas. There are different rules for the recognition of overseas divorces in the UK, according to whether or not they are obtained through judicial proceedings. An overseas divorce obtained through proceedings is recognized if: it is effective under the law of the country in which it was obtained; and either party to the marriage was habitually resident in, domiciled in, or a national of the country where it was obtained. An overseas divorce obtained otherwise than through proceedings is recognized if: it is effective under the law of the country where it was obtained; both parties were domiciled in that country, or one party was domiciled in that country and the other party was domiciled in another country that recognizes the divorce as valid; and neither party was habitually resident in the UK in the year preceding the divorce.

See also extrajudicial divorce.

owner-occupier

n.

A person who has legal ownership of a dwelling in which he lives or in which he lived before letting it on an assured or regulated tenancy (*assured tenancy; *regulated tenancy). For statutory purposes, the term includes a tenant under a *long tenancy.

ownership

n.

The exclusive right to use, possess, and dispose of property, subject only to the rights of persons having a superior interest and to any restrictions on the owner's rights imposed by agreement with or by act of third parties or by operation of law. Ownership may be corporeal, i.e. of a material thing, which may itself be a *movable or an *immovable; or it may be incorporeal, i.e. of something intangible, such as of a copyright or patent. Ownership involves enjoyment of a number of rights over the property. The owner can alienate (i.e. sell or give away) some of these rights while still retaining others; for example, an owner of land may grant a right of way or a patent owner may grant a licence to manufacture the patented goods. Ownership may be held by different persons for different interests, for example when a freehold owner grants a lease or when land is settled on persons with interests in succession to one another (See settled land). More than one person can own the same property at the same time. They may be either joint owners with a single title to the property (See joint tenancy); or owners in common, each having a distinct title in the property that he can dispose of independently (See tenancy in common).

A person may be both the legal and beneficial owner, or the legal ownership of property may be separate from the beneficial (equitable) ownership (i.e. the right to enjoy the property), as when a trustee owns the legal estate in land for the benefit of another.

A legally valid transaction may confer specific rights to use, possess, or deal with property without conferring ownership of it; for example, a contract may appoint a person as the owner's agent for the sale of specified land.

See also estate.

P.

Abbreviation for President (of the *Family Division of the High Court).

PACE

Acronym for the Police and Criminal Evidence Act 1984.

pact

n.

See treaty.

pacta sunt servanda

(Latin)

Agreements are to be kept; treaties should be observed. Pacta sunt servanda is the bedrock of the customary international law of treaties and, according to some authorities, the very foundation of international law. . Without such an acceptance, treaties would become worthless.

pacta tertiis nec nocent nec prosunt

(Latin)

Treaties do not create either obligations or rights for third states without their consent.

paedophile

n.

A person who is sexually attracted to children (of either sex). Sexual activity with any children under the age of 16 is illegal.

See also child abuse; sexual offence.

paid-up capital

The amount actually paid to a company for shares allotted or issued to a shareholder. If a shareholder makes a full payment of the purchase price of the share, the amount received is referred to as fully paid-up capital. If the company permits the shareholder to make only partial payment of the total purchase price, such shares are referred to as partly paid-up shares, with the remaining balance recorded in the company's accounts as an amount that the company may *call upon in the future (uncalled capital).

pain and suffering

The psychological consequences of personal injuries, in terms of pain, shock, consciousness that one's life expectancy has been shortened, embarrassment caused by disfigurement, etc. Damages are assessed on the extent to which the claimant actually experiences these feelings.

palatine courts

Originally, courts of the counties palatine of Durham, Lancaster, and Chester. In modern times, only the Chancery courts of Durham and Lancaster survived, but their jurisdiction was transferred to the High Court by the Courts Act 1971.

See also vice chancellor.

Panel on Takeovers and Mergers

See City Code on Takeovers and Mergers.

paperless trading

See electronic data interchange.

parallel import

A product bought in one state and imported into another by the purchaser, often to take advantage of price differences between states; such products are also known as grey market goods. Parallel importation usually takes place outside supplier-authorized official distribution networks. Within the EU measures taken to prevent parallel imports in the Single Market will infringe *Article 81 of the Treaty of Rome (See export bans). While it is permitted to restrict an exclusive distributor from soliciting sales outside his exclusive area, absolute territorial protection may not be given, either by contract terms or by conduct or oral arrangements.

paramount

adj.

(in land law)

Superior; having or denoting a better right or title.

paramount clause

See bill of lading.

parcels

pl. n.

1. Plots of land.

2. See deed.

pardon

n.

The withdrawal of a sentence or punishment by the sovereign under the *prerogative of mercy. Once a pardon is granted, the accused cannot be tried and if he has already been convicted, he cannot be punished. The responsibility is upon him, however, to plead the pardon as a bar to prosecution or punishment; if he does not do so as soon as possible, he may be held to have waived it. A person may also be granted a reprieve, i.e. the temporary suspension of a punishment (for example, if he becomes insane after sentence is passed).

parent

n.

The mother or father of a child. The term also includes adoptive parents (See adoption) but does not usually include *step-parents. At common law parents have parental rights over their children while they are minors, which include the right to physical control of the child, to control their education and determine their religion, to consent to medical treatment, to administer their property, to represent them in legal proceedings, and to discipline them reasonably. They also have parental duties, notably to maintain and educate their children, which can be legally enforced. Both parents exercise parental rights jointly, except in the case of illegitimate children, over whom the mother has exclusive parental rights unless the father has applied for *parental responsibility (he does, however, have a legal duty to maintain the child: See child support maintenance). Parental rights decline as the child grows older; in any dispute over their enforcement the *welfare of the child is the paramount consideration.

See also parents' liability; section 8 orders; section 30 order.

parental leave

Time off work given to parents. The statutory provisions are contained in the Maternity and Parental Leave Regulations 1999, which set down key elements regarding such time off, although employers and employees are free to agree an improved contractual scheme.

In order to exercise the right to parental leave the employee must have been employed for a minimum of one year, must have or expect to have responsibility for the child, and must take any leave for the purpose of caring for the child. Up to 13 weeks' parental leave is available in respect of any individual child; it must be taken before the child is five years old. Adoptive leave (for employees who adopt a child) is available on the same basis, with the proviso that the leave must be taken within five years of the placement of the child (or before the child's 18th birthday, whichever is earlier). In the case of a disabled child, leave may be taken any time up to the child's 18th birthday; there are proposals to extend the period of this leave from 13 to 18 weeks.

In the absence of any contractual agreement on the operation of parental leave, the statutory provisions lay down default provisions. These state that leave must be taken in blocks of a week or more and that the maximum annual leave allowance is four weeks in respect of any individual child.

In order to exercise this right employees must give employers a minimum of 21 days' notice. Employers may postpone the leave but only if their business would be unduly disrupted. Fathers and prospective adoptive parents who want to guarantee that they can be present at the birth or placement of their child may book time off work without postponement. No notice is required to be given by employees returning to work, and on return employees are entitled to work in their same job.

Currently parental leave is unpaid, but this (and parental leave in general) is currently under review. However, from March 2003 working fathers are to receive the right to two weeks' paid paternity leave at the same flat rate as statutory maternity pay (See maternity rights). Proposals are also underway to introduce paid adoptive leave as from 2003. In addition to the introduction of parental leave in 1999, provisions were introduced allowing for employees to take time off for domestic emergencies. Employees are entitled to a reasonable amount of unpaid time off in order to take action that is necessary in the following situations:

(1) To provide assistance on an occasion when a dependant falls ill, gives birth, or is injured or assaulted.

(2) To make arrangements for the provision of care for a dependant who is ill or injured, or in consequence of the death of a dependant.

(3) Because of the unexpected disruption or termination of arrangements for the care of a dependant.

(4) To deal with an incident that involves a child of the employee and occurs unexpectedly in a period during which an educational establishment the child attends is responsible for him.

parental order

See section 30 order.

parental responsibility

All the rights, duties, powers, and responsibilities that by law a parent of a child has in relation to the child and his or her property. The concept was introduced by the Children Act 1989, replacing *custody. Parental responsibility is automatically conferred on both parents if married, and on the mother alone if not. An unmarried father can acquire parental responsibility either by agreement with the mother or by applying to court for a *parental responsibility order. In determining whether to grant such an order the court must treat the child's welfare as its paramount consideration. Both parents retain parental responsibility on divorce. Other persons may acquire parental responsibility by virtue of being granted other orders. For example, anyone in whose favour a residence order (See section 8 orders) is made acquires parental responsibility for the duration of that order, and a *care order or an *emergency protection order confer parental responsibility on the relevant local authority. In all these cases, parental responsibility is shared with the parents.

See also step-parent.

parental responsibility agreement

A formal agreement between the mother and unmarried father of a child conferring *parental responsibility on the father. The agreement must be made on a set form, be signed and witnessed, and be registered in the Principal Registry of the Family Division in London. Once made, the agreement cannot be revoked by either party. Only a court may bring a parental responsibility agreement to an end - on the application of either party with parental responsibility or by the child himself if he has been given permission by the court to apply.

parental responsibility order

An order made by a court conferring *parental responsibility on an unmarried father. In determining whether or not to make such an order, the court must treat the child's welfare as its paramount consideration. Courts will usually grant a parental responsibility order to a father who is able to demonstrate some degree of commitment and attachment to his child. A parental responsibility order may be revoked by a court.

parent company

See subsidiary company.

parenting order

An order, introduced by the Crime and Disorder Act 1998, that requires the parent or guardian of a child under the age of 16 to comply, for a period not exceeding 12 months, with such requirements as the court considers necessary for preventing offences being committed by this child. Parents whose children have been made the subject of a *child safety order may be required to attend courses that will assist them with their parenting skills. The rationale behind the introduction of such orders was that inadequate parental supervision is thought to be strongly associated with youth offending.

parents' liability

Parents are not liable for their children's torts, but they may be liable for their own negligence in failing to supervise or train young children, where the absence of supervision or training has led a child to cause damage to others. In the case of older children, a parent can be vicariously liable for the torts of a child employed as a servant or agent on ordinary principles of *vicarious liability. There is no fixed age determining a child's liability for its own torts. A child may, however, be too young to form the intention necessary for a particular tort. In cases in which the negligence or contributory negligence of a child is in question, the test applied is whether the child's conduct measured up to the standard of care to be expected from an average child of that age. Parents are not legally responsible for their children's crimes, although they may have to pay their *fines.

parent with care

See child support maintenance.

parish

n.

A *local government area in England (outside Greater London) consisting of a division of a *district (though not all districts are so divided). All parishes have meetings and many have an elected parish council, which is a *local authority with a number of minor local governmental functions (e.g. the provision of allotments, bus shelters, and recreation grounds). A parish council may by resolution call its area a town, itself a town council, and its chairman the town mayor. The Local Government and Rating Act 1997 (effective from 19 May 1997) gives extra powers to parish councils in relation to rights of transport and crime prevention.

Paris Treaty

The treaty, signed in Paris on 18 April 1951, that formed the *European Coal and Steel Community. Many of its provisions are similar to those of the later *Treaty of Rome, establishing the EEC, for example in the fields of *competition law and *state aid.

parking offences

Offences relating to parking a motor vehicle. These include parking a vehicle within the limits of a pedestrian crossing or wherever signs or kerb markings indicate that parking is prohibited or restricted and failing to comply with the regulations associated with the use of parking meters. If the accused can show that road markings or signs indicating parking restrictions were absent or deficient, he may be acquitted. Parking offences are punishable by fine only; they are not subject to endorsement.

See also obstruction.

parlementaire

n.

(from French: parlementer, to discuss terms; parley)

An agent employed by a commander of a belligerent force in the field whose function is to go in person within the enemy lines for the purpose of communicating or negotiating openly and directly with the enemy commander.

Parliament

n.

The legislature of the UK, consisting of the sovereign, the House of Lords, and the House of Commons. Under the Parliament Act 1911, the maximum duration of any particular Parliament is five years, after which its functions expire. In practice, a Parliament's life always ends by its earlier dissolution by the sovereign under the *royal prerogative; this proclamation also summons its successor. The date of dissolution is chosen by the Prime Minister. The life of a Parliament is divided into sessions, normally of one year each, which are ended when Parliament is prorogued (also under the prerogative) by a royal commission. Each House divides a session into sittings, normally of a day's duration, which end when a motion for adjournment is passed. The functions of Parliament are the enactment of legislation (See act of parliament), the sanctioning of taxation and public expenditure, and the scrutiny and criticism of government policy and administration.

See also sovereignty of parliament.

Parliamentary Commissioner for Administration

(Parliamentary Ombudsman)

An independent official appointed under the Parliamentary Commissioner Act 1967 (as amended by the Parliamentary and Health Service Commissioners Act 1987) to investigate complaints by individuals or corporate bodies of injustice arising from maladministration by a government department or by certain nondepartmental public bodies, such as the Arts Council of England and the *Housing Corporation. Appointment of the Commissioner is by the Crown on the Prime Minister's advice. The Commissioner may investigate complaints only if they are submitted to him in writing through a Member of Parliament; investigation is entirely at his discretion. If he upholds a complaint and it is not remedied, he reports this to Parliament. Complaints of maladministration by devolved bodies in Wales and Scotland are investigated by the Welsh Administration Ombudsman and the Scottish Parliamentary Commissioner for Administration, respectively.

See also health service commissioners.

parliamentary committees

See Committee of the Whole House; Grand Committees, Scottish and Welsh; Joint Committee on Statutory Instruments; standing committee; select committee.

parliamentary counsel

Civil servants (barristers or solicitors) who draft government Bills, government amendments to Bills, and any procedural motions required in connection with the passing of Bills. In 1996 proposals to contract out this activity to private practice lawyers were considered.

Parliamentary Ombudsman

See Parliamentary Commissioner for Administration.

parliamentary papers

Papers published on the authority of either House of Parliament. They include Bills, the Official Reports of Parliamentary Debates (See Hansard), and reports of parliamentary committees.

parliamentary privilege

Special rights and immunities enjoyed by the Houses of Parliament and their members to enable them to carry out their functions effectively and without external interference. They are conferred mainly by the common law but partly by statute; they can be extended by statute but not by the resolution of either House.

The Commons have five main privileges.

(1) The right of collective access to the sovereign through the Speaker.

(2) The right of individual members to be free from civil (but not criminal) arrest. Since the abolition of imprisonment for debt, this privilege has been of only minor significance, but it would still shield a member against (for example) imprisonment for disobeying a court order in civil proceedings.

(3) The individual right to freedom of speech. This substantial privilege means that a member cannot be made liable either civilly (e.g. for defamation) or criminally (e.g., for breach of the Official Secrets Acts) for anything said by him in the course of debates or other parliamentary proceedings. Under the Parliamentary Papers Act 1840 members are also not liable for statements repeated in reports published on the authority of the House.

(4) The collective right to exclusive control of its own proceedings, so that it can (for example) exclude the public, prohibit reporting, and expel any member whom it may consider unfit to sit.

(5) The collective right to punish for any breach of privilege or other contempt. Examples of breaches of privilege are initiating defamation proceedings in respect of privileged words and the reporting of secret proceedings. Other contempts include any conduct prejudicial to the proper functioning or dignity of the House, e.g. by refusing to give evidence to a committee, bribing members, or insulting the House. Members may be punished for contempt by expulsion, suspension, or imprisonment; others by reprimand or imprisonment. Imprisonment is terminated by prorogation. Whether or not particular conduct amounts to a contempt, and if so what punishment (if any) is appropriate, is considered by the Committee of Privileges, whose report the House is free to accept or reject after debate.

The privileges of the Lords are similar, except that members have an individual right of access to the sovereign and the House can fine for contempt and imprison for a fixed term, which is not affected by prorogation.

parole

(release on licence)

n.

The conditional *release of a prisoner from prison. Under the Criminal Justice Act 1991, anyone sentenced to imprisonment for between 12 months and 4 years must be released on licence after serving one-half of the sentence; those imprisoned for 4 years or more must be paroled after serving two-thirds of their sentence and may be considered for parole after serving half of the sentence. Local review committees in each area consider all cases and advise the Home Secretary, who may either release the prisoner himself or refer his case to the Parole Board. This Board includes a past or present judge, a psychiatrist, a person experienced in caring for discharged prisoners, and a person trained in the treatment of offenders. The Board considers reports and evidence relating to the prisoner (whom it may interview) and defines the conditions under which he may be released. Under the Crime (Sentences) Act 1997, the Parole Board (rather than the Home Secretary) has responsibility for the release of juveniles convicted of murder.

Date: 2015-01-29; view: 595