Lord Chief Justice 8 page

Parole remains in force until the prisoner would have served three-quarters of his sentence had he not been released. The Home Secretary may recall him to prison at any time, either on the recommendation of the Parole Board or whenever he thinks it necessary to do so without consulting the Board (but the prisoner has the right to appeal to the Parole Board).

If a prisoner on parole commits an offence during the period of his original sentence, he may have to serve any part of the original sentence still outstanding. In such cases limitations are imposed on his right to be considered again for parole.

parol evidence

Evidence given orally, as opposed to *documentary evidence.

parol evidence rule

The rule that parol evidence (i.e., oral evidence) cannot be given to contradict, alter, or vary a written document (such as a judicial record or a contract) unless there are allegations of fraud or mistake. In civil cases there is no longer a strict adherence to this rule.

parol lease

A lease that is made either orally or in writing, but not by deed, and fulfils certain conditions. These are that it takes effect immediately it is made; it is for a period less than three years; and it is at the full market rent. Periodic tenancies (*periodic tenancy) usually fulfil these conditions. Parol leases are the exception to the general rule that leases are not legally enforceable unless they are made by deed.

Part 8 claim form

A form of originating *process used in cases in which the issues are likely to be ones of law or the interpretation of documents. It should not be used when disputed questions of fact are involved, for which proceedings begun by normal claim form are more appropriate. A Part 8 claim form must state that Part 8 of the Civil Procedure Rules applies and must set out the question the claimant wants the court to decide or the remedy that he seeks. Any evidence relied upon must be filed and served with the claim form. Part 8 claims are allocated as *multi-track proceedings.

Part 20 claim

A claim other than a claim by the claimant against the defendant. It includes (1) a *counterclaim by the defendant against the claimant; (2) a counterclaim by the defendant against a third party (i.e. a person who is not a party to the current proceedings), normally with the claimant; and (3) a claim by the defendant for an *indemnity or a *contribution from either a third party or from a party to the current proceedings. If the defendant to a claim alleges that a third party is liable to indemnify him or contribute to any judgment, or is someone that they seek to counterclaim against in addition to the claimant, he must bring that party into the proceedings by issuing a Part 20 claim form. Once done, the third party becomes known as the Part 20 defendant.

A defendant can issue a Part 20 claim form without requiring permission of the court if it is issued before or at the time of the filing of his defence. Directions in such a case will be dealt with as part of the normal system of *case management appropriate to the track to which the case has been allocated. If the time in which the defence must be filed has expired, permission is required from the court. This is normally sought by the use of an application notice filed at court and supported by evidence of reasons why the third party be introduced into the proceedings. If granted, the court will issue directions at that time. In any event, the court will consider further directions as to the future conduct of the proceedings when the time for filing the defence to the Part 20 claim by the third party or co-defendant has expired.

Part 36 offers and payments

Under the *Civil Procedure Rules, offers and payments made by parties in the pre-trial period in an attempt to encourage a settlement out of court. A Part 36 payment (formerly called payment into court) is made into the court; it can only be made once legal proceedings have started and only in respect of money claims. A Part 36 offer (formerly called a Calderbank letter or offer) can be made in the period before the start of proceedings or - in respect of nonmonetary claims - after proceedings have started. Both procedures place pressure on the other party to the litigation to settle.

In the case of a Part 36 payment, the other party is notified of the payment and that it may accept or reject the payment as a settlement. In the event of a rejection and the litigation proceeding to trial, the amount awarded is compared with the amount paid in. If the amount awarded is less than the sum previously paid into court, costs since the time of payment in will be awarded against the successful claimant. Part 36 offers have a similar purpose and effect in that the court will consider the contents of the offer when it considers the issue of costs, after finding liability and settling the amount of damages.

partial loss

(in marine insurance)

Any loss of the subject matter of an insurance policy other than an *actual total loss or a *constructive total loss. In the case of a partial loss there is a lesser measure of indemnity than in the case of a total loss.

See also average.

partibility

n.

(of chattels)

See partition of chattels.

participator

n.

See close company.

particular average

See average.

particular lien

See lien.

particulars

pl. n.

Details of an allegation of fact made in civil proceedings. Details of a claim (the particulars of claim) can be included in the *claim form or served separately on the defendant. When an allegation is ambiguous or pleaded in insufficient detail, the opposing party may make in writing (through the court) a request for further information (formerly called request for further and better particulars). The principal function of this procedure is to prevent *surprise.

parties

pl. n.

1. Persons who are involved together in some transaction, e.g. the parties to a deed or a contract.

2. Persons who are involved together in litigation, either civil or criminal.

See also joinder of parties.

partition

n.

1. The division of a territory into two or more units, each under a different government.

2. The division of supreme power over a territory between different governments (e.g. federal and state).

3. The formal separation, effected by deed, of land held in common ownership into parts, so that each co-owner takes his part solely, beneficially, and free from any rights of the others. Partition of land cannot be enforced without the consent of all the co-owners.

4. The transfer to different companies of parts of a trade or undertaking (or two or more trades or undertakings) of a company. This is usually by means of a distribution agreement or a demerger under the Income and Corporation Taxes Act 1988.

Compare partition of chattels.

partition of chattels

The division between co-owners of chattels held in undivided shares, so that each takes his part of the goods solely and absolutely. If chattels are partible, (i.e. capable of being divided), the court may order partition under the Law of Property Act 1925 on the application of a co-owner.

partnership

n.

An association of two or more people formed for the purpose of carrying on a business with a view to profit. Partnerships are governed by the Partnership Act 1890. Unlike an incorporated *company, a partnership does not have a legal personality of its own and therefore partners are liable for the debts of the firm. On leaving the firm they remain liable for debts already incurred; they cease to be liable for future debts if proper notice of retirement has been published. A limited partnership is governed by the Limited Partnership Act 1907. It consists of general partners, who are fully liable for partnership debts, and limited partners, who are liable to the extent of their investment. Limited partners lose their limits of liability if they take part in management. A partnership at will is one for which no fixed duration has been agreed. Any partner may end the partnership at any time provided that he gives notice of his intention to do so to all the other partners, subject to any restriction in the partnership deed.

See also limited liability partnership.

part performance

A doctrine of equity that a contract required to be evidenced in writing will still be enforceable even if it is not so evidenced provided that one of the parties does certain acts by which the contract is partly performed. For an act to bring the doctrine into play (i.e. a sufficient act of part performance) that act must be performed by the person alleging the contract to exist and must relate unequivocally to the contract; an example would be taking possession of property alleged to have been sold (under a contract entered into before 21 September 1989) to the person who takes possession. It is unclear whether mere payment of money is a sufficient act of part performance.

This doctrine applied primarily to contracts for the sale of land. However, such contracts entered into on or after 21 September 1989 are required, under the Law of Property (Miscellaneous Provisions) Act 1989, to be in writing (not merely evidenced in writing) if they are to be valid. Acts of part performance will not, as such, validate an unwritten land contract, although they may, in particular circumstances, give rise to a proprietary *estoppel or a *constructive trust.

party wall

A wall or fence in premises that is shared with another owner or tenant in adjacent premises. The Party Wall Act 1996, which came into force on 1 July 1997, imposes obligations on owners carrying out works on party walls or fences. They must notify the adjoining owner or tenant in advance if they intend to repair a party wall or fence or build on a boundary; any damage that occurs as a result of the work must be repaired.

passing off

Conducting one's business in such away as to mislead the public into thinking that one's goods or services are those of another business. The commonest form of passing off is marketing goods with a design, packaging, or trade name that is very similar to that of someone else's goods. It is not necessary to prove an intention to deceive: innocent passing off is actionable.

passport

n.

A document, issued under the *royal prerogative by the Home Office through its executive agency the Passport Agency, that provides prima facie evidence of the holder's nationality. It is not required by law for leaving the UK, but it is required for entry into most other countries. Within the European Union, EU nationals are sent through quicker channels of entry although they are still subject to occasional passport checks, despite the Schengen Agreement reached by most EU states to abolish internal border checks, which came into force on 26 March 1995, and the creation of the *Single Market in the EU, which came into force on 1 January 1993. Concerns such as drug smuggling have made member states of the EU reluctant to abandon internal controls. Its issue is purely discretionary and the government may withdraw or revoke a passport at will. Under the Immigration Act 1988, a person seeking entry into the UK on the basis of his right of abode there must either produce an appropriate passport or a certificate showing such an entitlement, issued by or on behalf of the UK government. The British Visitor's Passport has been abolished and only a full British passport is adequate for foreign travel. Children need their own passports. However, children included on a parental passport before 5 October 1998 may continue to travel abroad on that passport either until reaching the age of 16 or until the passport is submitted for an amendment. The English courts have power to order the surrender of a foreign passport to protect the interest of children who might otherwise be removed unlawfully from the UK by a foreign parent. Similar powers to order surrender of a UK passport are contained in the Family Law Act 1986.

past consideration

See consideration.

pasture

n.

A *profit à prendre or *common conferring rights of grazing over another's land or on common land, which may be limited to particular types of animal, to fixed numbers of animals, or (in the case of a common) to as many animals as the land will support.

patent

n.

The grant of an exclusive right to exploit an invention. In the UK patents are granted by the Crown through the Patent Office, which is an executive agency of the Department of Trade and Industry. An applicant for a patent (usually the inventor or his employer) must show that the invention is new, is not obvious, and is capable of industrial application. An expert known as a patent agent often prepares the application, which must describe the invention in considerable detail. The Patent Office publishes these details if it grants a patent. A patent remains valid for 20 years from the date of application (the priority date) provided that the person to whom it has been granted (the patentee) continues to pay the appropriate fees. During this time, the patentee may assign his patent or grant licences to use it. Such transactions are registered in a public register at the Patent Office. If anyone infringes his monopoly, the patentee may sue for an *injunction and *damages or an *account of profits. However, a patent from the Patent Office gives exclusive rights in the UK only: the inventor must obtain a patent from the European Patent Office in Munich and patents in other foreign countries if he wishes to protect the invention elsewhere.

patent agent

See patent.

patent ambiguity

See ambiguity.

patent defect

See defect.

patentee

n.

A person who has been granted a *patent.

Patents County Court

A *county court designated by the Lord Chancellor under the Copyright, Design and Patents Act 1988 to exercise a special jurisdiction in cases relating to patents and designs. The Patents County Court provides a cheaper and quicker forum for patent and design cases than the *Patents Court of the High Court. Patents agents and solicitors, as well as barristers, have *rights of audience there.

Patents Court

Collectively, the *Patents County Court and the Patents Court of the High Court. The latter forms part of the *Chancery Division of the High Court, having jurisdiction over matters arising under the Patents Acts 1949-77, the Registered Designs Acts 1949-61, and the Defence Contracts Act 1958, as well as the inherent jurisdiction of the High Court. Two *puisne judges of the Chancery Division with special experience of patent law are assigned to hear cases, but they will be assisted by special scientific advisers.

paternity leave

See parental leave.

patrial

n.

See immigration.

pawn

(pledge)

n.

An item of goods transferred by the owner (the pawnor) to another (the pawnee) as security for a debt. (The word is also used for the transfer itself.) A pawn involves a *bailment and the pawnor remains owner of the goods; the pawnee is liable for failure to take reasonable care of them. If the pawnor fails to repay the loan at the agreed time, the pawnee has the right at common law to sell the pawn; he must account to the pawnor for any surplus after discharging his debt. Pawnbrokers are dealers licensed to lend money at a specified rate of interest on the security of a pawn. Pawnbroking is regulated by provisions of the Consumer Credit Act 1974 (replacing the Pawnbrokers Acts 1872 and 1960) with regard to such matters as pawn receipts, rates of interest, redemption period and procedure, consequences of failure to redeem, and realization of the pawn. Under the Act, a pawn can be redeemed at any time within six months, or longer if agreed by both parties. At the end of the redemption period ownership of the pawn passes to the pawnbroker if the redemption period is six months and the value of the debt is £25 or less. If it is more than £25 the pawnbroker may sell the pawn after giving the pawnor notice, but the pawnor may still redeem the pawn at any time until it is sold. The pawnbroker must account to the pawnor for any surplus from the proceeds of sale after discharging his debt but he may claim any balance of the debt if the proceeds are insufficient.

Pay As You Earn

(PAYE)

A system for collecting *income tax in which the employer deducts tax direct from the employee's pay. The Inland Revenue gives every employee a code number, which the employer uses, together with tax tables, to work out how much tax to deduct (See PAYE week number). The employer is then responsible for paying the tax to the Inland Revenue by the 19th day of each month.

PAYE

See Pay As You Earn.

PAYE week number

One of a series of consecutive numbers given to successive seven-day periods within the tax year, used by employers in the calculation of tax due under *Pay As You Earn. Thus, Week 1 is the period 6-12 April inclusive, Week 2 is 13-19 April, and so on. The employer uses the week number in conjunction with the employee's tax code to determine his tax-free pay for the current tax year to date. This in turn is used to calculate the tax due. The week number relates to the period in which the pay day occurs, not necessarily the period in which the pay was earned.

payment by post

The payment of a debt by the posting of notes, a cheque, or some other negotiable instrument. If the letter is lost in the post, the debt is not discharged unless the creditor has expressly or by implication requested payment by post and the debtor has sent a properly addressed letter.

payment in due course

Payment made at or after the *maturity of a *bill of exchange to the holder of the bill by a payer in good faith and without notice that the holder's title to the bill is defective. A bill is discharged by payment in due course by or on behalf of the drawee or acceptor. When a bill is paid by the drawer or endorser it is not discharged and the party paying may have rights on it.

payment into court

The payment by a defendant, into an account maintained by the court, of a sum in satisfaction of any or all of the claims made against him. Under the *Civil Procedure Rules, this is now referred to as Part 36 payment.

See part 36 offers and payments.

payroll giving scheme

A scheme for employees to give donations to charities by direct deduction from their pay. The employees receive tax relief on donations, and the government adds a further 10%to such gifts for three years from April 2000. The employer deducts the donation direct from the employee's wages or salary and pays it to the charity of the employee's choice through an agency.

pay statement

See itemized pay statement.

PC

See privy council.

PCT

See primary care trust.

peaceful assembly

See freedom of association.

peaceful enjoyment of possessions

A right set out in Article 1 of the First Protocol to the European Convention on Human Rights and now part of UK law as a consequence of the *Human Rights Act 1998. This right is a *qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate. Therefore the state may deprive individuals of their possessions and control to the use of property providing that this is prescribed by law, in the public interest, and proportionate.

pecuniary legacy

See legacy.

penal notice

See contempt of court.

penal statute

A statute that creates a criminal offence or provides for any penalty (e.g. a forfeiture) enforceable in civil proceedings. It is subject to strict construction (See interpretation of statutes).

penalty

n.

1. A *punishment for a crime. A penalty must be clearly stated before it can be enforced. When statute creates an offence and specifies a penalty without saying how the offence is to be tried, there may be an implication that it is to be imposed by a magistrates' court. Article 7 of the European Convention on Human Rights forbids the use of retrospective criminal penalties, and this prohibition is now part of UK law as a consequence of the *Human Rights Act 1998.

2. A sum specified in a contract as payable on its breach but not constituting a genuine estimate of the likely loss.

See damages.

penalty points

See totting up.

pendente lite

(Latin)

Until trial. When a will or the right to administer an estate is being disputed, the court may if necessary appoint an administrator pendente lite to deal with the estate until the proceedings have been resolved.

pending action

Proceedings in court that relate to land or to some interest in it. The claimant should register the pending action as a land charge (See registration of encumbrances) as soon as the proceedings begin. If he fails to do this a purchaser acquiring the land without knowing of the action will not be bound by the outcome.

pension

n.

Income paid to a person who has reached the state *retirement age (retirement pension) or who has retired from employment and benefits from a company or personal pension scheme. From April 2001 the state retirement pension was £75.50 per week for a single person and £115.90 for a married couple. The *State Earnings Related Pension Scheme (SERPS) can boost state pensions for employees with sufficient national insurance contributions. Those moving abroad receive only a frozen state pension. Contributions to a company pension scheme are made net of tax within Inland Revenue limits but only (for newer pensions) on income up to an earnings cap of £91,800 (in 2000-01). Employees may, up to that limit, pay up to 15% of their salary into a company pension scheme (including any *additional voluntary contributions) and may take a maximum pension of two-thirds their final salary on retirement. Maximum contributions for the self-employed and others in personal pension schemes are subject to the earnings cap for company pensions but vary according to age, ranging from 17.5% of net relevant earnings for those aged 35 or less at the beginning of the tax year to 40% for those aged 61 and over. Pensions paid are taxable in the hands of the recipient, although a proportion of the fund accumulated can be taken as a tax-free lump sum on retirement. The balance is used to purchase a compulsory *annuity.

See also stakeholder pension.

pension earmarking

A provision for financial relief on granting a divorce or judicial separation that, when the pension of one spouse (the main earner) becomes payable, part of its benefits will be paid to the other spouse. Thus on the death of the main earner, all payments will cease.

See also pension sharing order.

pension sharing order

An order that may be made by the court on granting a divorce, whereby the spouse with little or no pension either becomes a member of the main earner's pension scheme in her or his own right or, alternatively, receives a transfer of a designated percentage of this scheme into her or his own pension arrangement. Unlike *pension earmarking, pension sharing does not apply to *judicial separation.

PEP

See personal equity plan.

peppercorn rent

An insignificant rent reserved for the purpose of showing that a lease or tenancy is granted for valuable *consideration.

per autre vie

See estate pur autre vie.

per capita

(Latin: by heads)

For each person. Distribution of an estate or fund per capita is an equal distribution in the specified shares among all those entitled to it.

Compare per stirpes.

per curiam

per cur

(per curiam, per cur)

(Latin)

By the court. A proposition per curiam is one made by the judge (or, if there is more than one judge, assented to by all).

peremptory challenge

See challenge to jury.

peremptory norm

See jus cogens.

peremptory pleas

See pleas in bar.

perfect and imperfect rights

Legally recognized rights. Perfect rights are enforceable through court action but imperfect rights are not.

perfect trust

See executed trust.

performance bond

See bond.

performance of contract

The carrying out of obligations under a contract. Performance by both parties discharges the contract completely; performance by one party discharges him alone. The rules relating to performance distinguish between a divisible contract and an indivisible (or entire) contract In a divisible contract the obligations of the parties are independent of each other, so that one party can demand performance by the other without rendering performance himself. Thus a landlord, though liable to be sued by his tenant for not carrying out a repairing covenant, is not prevented by his own default from enforcing the tenant's covenant to pay rent. Most contracts, however, are indivisible, i.e. the obligations of the parties are interdependent. Neither party can demand performance unless he himself either has performed or is ready and willing to do so. At common law, complete and precise performance was originally required, so that a party who rendered anything short of this (for example, a builder who carried out the contract work, but defectively in some respects) could recover nothing for his efforts. This extreme position was subsequently modified by the doctrine of substantial performance. A party who has substantially performed his obligations can now recover the contract price, reduced by damages awarded to the other party in respect of the defects.

A tender of performance is the equivalent of performance, so that a seller who tenders the correct goods is discharged from the contract (and entitled to damages for breach) if the buyer rejects them. Vicarious performance (e.g. by a subcontractor) is good performance, except when personal performance is demanded by the contract.

See also part performance; specific performance.

performers' rights

The rights of performers, such as musicians, in the live performance of their works, to prevent others recording their performances. The rights are also infringed if anyone broadcasts a qualifying performance under the Copyright, Designs and Patents Act 1988 without consent or imports a recording of such a performance knowing that it was an illicit recording. The right is owned by the performer, although in commercial practice many performers enter into exclusive recording contracts in relation to their works, which give recording rights to a record company; in this case the company obtains *copyright in the sound recording and the performer loses his rights for the duration of the contract. The Copyright Term Directive 93/98 harmonized EU law in this area. Performers' rights must be protected under national law; the right must exist for 50 years from the end of the calendar year in which the performance takes place.

perils of the seas

One of the heads of risk included in a marine insurance policy. It covers the insured against loss caused by fortuitous accidents or casualties of the seas, e.g. such events as unusual violence of wind or waves, striking submerged rocks, and collisions with other ships. The ordinary action of wind and waves in causing wear and tear is not, however, regarded as a peril of the seas.

per incuriam

(Latin)

Through lack of care. A decision of a court is made per incuriam if it fails to apply a relevant statutory provision or ignores a binding precedent. In criminal cases a decision made per incuriam will usually result in the conviction being quashed.

periodic tenancy

A tenancy in which rent is payable at fixed intervals, usually weekly, monthly, quarterly, or yearly. The tenancy continues automatically from one period to another until terminated by *notice to quit. Periodic tenancies can be created by express agreement, orally or in writing. Alternatively they can be created by implication when rent is accepted by the owner of the land from the person who occupies it. This may arise, for example, when a tenant under a fixed-term tenancy (*fixed term) remains in possession at the end of his tenancy and the landlord continues to accept rent from him. The length of notice required to terminate the tenancy is usually the same as one of the periods of the tenancy.

perished goods

Under the Sale of Goods Act 1979, goods under a contract of sale that have been either totally destroyed or so damaged that they no longer fit the contract description. The Act provides that a contract is void if it relates to specific goods that, unknown to the seller, have perished before it is made. If the goods perish after the contract is made, this event will make the contract void unless the risk has by then passed to the buyer (See transfer of risk). These two propositions give statutory recognition to common-law rules relating to *mistake and *frustration of contract, respectively.

Date: 2015-01-29; view: 616