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Lord Chief Justice 10 page

The interest of a person who has conveyed land to another until the occurrence of some specified event (which may never happen). The *determinable interest thus created will end automatically should this future event occur, and the legal estate will revert to the grantor. Thus, when A conveys land to B until he marries, A has a possibility of reverter when B marries (although if B dies unmarried, the possibility of reverter is lost).

See settled land.

postnuptial settlement

See marriage settlement.

power

A legal discretion (as opposed to a *duty) to carry out or refrain from carrying out any act. When powers affect the rights of others (e.g. the powers of *trustees and *administrative powers), their exercise can be challenged in the courts. An act that goes beyond the scope of a power as specified in the instrument creating it (e.g. a trust deed or statute) is invalid; so, too, is any act carried out in abuse of a power (e.g. when it is exercised after taking irrelevant considerations into account, for improper motives, or capriciously).

See also ultra vires.

power in the nature of a trust

See trust power.

power of appointment

A right given to someone to dispose of property that is not his, within bounds established by the owner of the property (it is sometimes called a mere or bare power; Compare trust power). The owner of the property (the donor of the power) gives a power to another (the donee of the power, or appointor) to appoint (give) the property to a person (the appointee) chosen by the appointor. The power may be general (under which an appointment may be made to anyone, including the donee or the appointor himself), special (an appointment may be made only within a class chosen by the donor), or hybrid (an appointment may be made to virtually anyone except a small class). The appointees have very limited rights - much more limited than those of beneficiaries under a trust. An appointment is void if it is made to someone not within the class chosen or if it is a *fraud on a power.

power of arrest

(in cases of domestic violence) A power attached to, for example, a *nonmolestation order or an *occupation order, which enables a police constable to arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of the order to which it is attached, even though that person might not be committing a criminal offence.

power of attorney

(letter of attorney)

A formal instrument by which one person empowers another to act on his behalf, either generally or in specific circumstances. A power to execute a *deed must itself be given by a deed.

power of sale

1. The right of a mortgagee to sell mortgaged property if the mortgagor has not repaid his loan by the contractual date of redemption. This power arises when the contractual date (stated in the mortgage document and usually very early in the period of the mortgage) has passed, but may only be exercised if interest due under the mortgage is two months in arrears, if there has been a breach of certain terms in the mortgage by the mortgagor, or if notice has been served on the mortgagor to repay the loan and the loan (or part of it) has not been repaid within three months of the notice. If the mortgagee sells the property under the power of sale, he owes a duty to the mortgagor to act with reasonable care and hold on trust any money surplus to that needed to pay his mortgage debt for the mortgagor's benefit. Certain types of mortgagee (such as building societies and local authorities) have a statutory duty to take care to obtain the best price that can reasonably be obtained through the exercise of the power of sale.

2. The right of a *tenant for life under the Settled Land Act 1925 to sell the settled land for the best price in money that can be obtained. Such a sale *overreaches the interests of the subsequent beneficiaries.

power of search

The legal right to search people or property. Private people have no powers of search, but various statutes, notably the Police and Criminal Evidence Act 1984, confer such powers on police or other officials, often on the authority of a search warrant issued by a magistrate or a High Court judge. The 1984 Act empowers the police to stop and search any person or vehicle found in a *public place for stolen or prohibited articles and to detain a person or vehicle for such a search. (An article is "prohibited" if it is either an *offensive weapon or made or adapted for use in connection with *burglary, *theft, taking a *conveyance, or obtaining property by *deception.) Before such a search the police officer must state his station and object. If out of uniform, he must produce evidence of his status. He must always give his grounds for the search if asked and must record details of it. A magistrate may issue a search warrant to an officer if he is satisfied that there are reasonable grounds for believing that a serious arrestable offence (See detention) has been committed and material evidence is to be found on the premises. Under the Theft Act 1968, for example, police may obtain a warrant to search for stolen goods when there are reasonable grounds for believing that they are in someone's possession or on his premises. Under certain circumstances the police are given powers of search without requiring either a warrant or any superior authorization; for example, under the Misuse of Drugs Act 1971 (See controlled drugs) and the Terrorism Act 2000 (See terrorism). The police also have a general power, when arresting someone for an *arrestable offence, to enter and search any place in which the suspect is believed to be. Statutes sometimes give powers of search to public officials, e.g. customs officers, Department of Trade and Industry officials, or Inland Revenue officers.

Police powers of stop and search were extended under the Criminal Justice and Public Order Act 1994. Where a senior police officer reasonably believes that an incident involving serious violence may take place in his area he may issue an authorization (valid for 24 hours, extendable for up to 6 hours) for persons and vehicles (which can include caravans, ships, aircraft, and hovercraft and their passengers) to be stopped and searched if he thinks it expedient to do so to prevent violence. A constable in uniform may stop and search any person for the purpose of seeing whether that person is carrying an offensive weapon or an instrument that has a blade or a sharp point. Failure to stop is a *summary offence punishable by one month's imprisonment and/or a *fine on level 3. Failure to cooperate might amount to *obstructing a police officer in the execution of his duty. Similar powers are available to senior police officers to authorize searches for periods of 28 days to prevent acts of *terrorism connected with the affairs of Northern Ireland or international terrorism. Both failure to stop and wilful obstruction of a constable are *summary offences for the purpose of this power and are punishable by six months' imprisonment and/or a *fine on level 5.

practice

1. The mode of proceeding to enforce a legal right. It is virtually synonymous with *procedure, but is sometimes used to denote informal rules of procedure as distinct from those derived from rules of court.

2. A book on practice and procedure, such as the *Civil Procedure Rules.

Practice Directions

Published statements, usually issued by the head of the court or division to which they relate, indicating the procedure to be followed in particular matters or the court's intended policy in certain cases. Unlike *rules of court, they have no statutory authority. They are normally published in the law reports. Masters' Practice Directions, issued by the Queen's Bench Masters, concern the administration of the *Queen's Bench Division.

practice master

See central office.

practising certificate

An annual certificate issued by the *Law Society to a solicitor entitling him to practise. The fee chargeable includes the premium of an insurance policy indemnifying the solicitor against the consequences of professional negligence. Barristers obtain a practising certificate from the *Bar Council after they have successfully completed a twelve-month pupillage and have attended further education courses required by the Bar Council

praecipe

(Latin: command)

1. A court document on which a party writes the particulars of a document that he wishes to have prepared or issued. In county court procedure, this document is now called a request.

2. Formerly, a writ requiring the sheriff to command the defendant either to do a certain thing or to show cause why he had not done it.

pre-action protocols

Protocols introduced as a result of the recommendations of Lord Woolf's Access to Justice (Final Report) 1996 to speed up the early parts of the litigation process. Pre-action protocols encourage greater contact between the parties at the earliest possible opportunity in order to encourage better and earlier exchange of information with a view to fair and early settlement of claims. Two protocols only have been drawn up, one in clinical negligence actions and the other in personal injury actions. Pre-action protocols can be enforced by the court and are seen as an aspect of the courts' new responsibility of *case management under the *Civil Procedure Rules.

preamble

The part of a statute that sets out its purposes and effects. It follows immediately after the long title and date of royal assent. Preambles are now virtually confined to statutes originating in private Bills.

precarious possession

Possession of property at the will of another person.

precatory trust

See precatory words.

precatory words

Words that accompany a gift of property in a document, hoping, desiring, or requesting that the donee will dispose of the property in a particular way. It is often difficult to decide whether there is sufficient certainty of intention to create a trust (precatory trust) or whether the property is an absolute gift to the recipient. The courts have tended to construe gifts so as not to create a trust, unless there is no doubt that a trust was intended, although some recent cases have indicated a reversal of this trend, especially where the settlor has not taken legal advice.

precedent

A judgment or decision of a court, normally recorded in a *law report, used as an authority for reaching the same decision in subsequent cases. In English law, judgments and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is that part of the judgment that represents the legal reasoning (or *ratio decidendi) of a case that is binding, but only if the legal reasoning is from a superior court and, in general, from the same court in an earlier case. Accordingly, ratio decidendis of the *House of Lords are binding upon the *Court of Appeal and all lower courts and are normally followed by the House of Lords itself. The ratio decidendis of the Court of Appeal are binding on all lower courts and, subject to some exceptions, on the Court of Appeal itself. Ratio decidendis of the High Court are binding on inferior courts, but not on itself. The ratio decidendis of inferior courts do not create any binding precedent.

precept

A lawful demand or direction, particularly a demand from a rating authority to another authority to levy rates for the benefit of the former. For example, a district council's rates include an amount that it collects as a result of a precept from its county council.

predatory pricing

The practice, undertaken largely by dominant businesses, of pricing goods or services at such a low level that competitors are forced to leave the market. While small companies are entitled to price as they wish, provided this is not in collusion with other companies, dominant businesses must comply with *Article 82 of the Treaty of Rome and the Competition Act 1998; predatory pricing may be an *abuse of a dominant position contrary to these provisions. Companies can be fined for engaging in predatory pricing.

predecessor

(in land law)

A person through whom an owner's title to land is traced. Examples are a previous owner who sold, bequeathed, or settled the land and a mortgagee who exercised his power of sale.

pre-emption

The right of first refusal to purchase land in the event that the grantor of the right should decide to sell. For example, if A makes a covenant that for five years he will not sell his land other than to Bat £5000, A cannot be forced to sell (Compare option to purchase) but B's right of pre-emption prevents him from selling other than on the stated terms for five years. A right of pre-emption is valid only if it is sufficiently precise. There is some confusion with respect to registration of such a right: if it is capable of registration it will bind third parties only if registered (See registration of encumbrances).

pre-emptive right

1. The right of some shareholders under the Companies Act 1985 to be offered a proportion of certain classes of newly issued securities before they are offered to anyone else and upon terms at least as favourable. (See also rights issue).

2. The right conferred by the articles of association upon shareholders in some private companies to be offered, on specified terms, first refusal of the shares of any shareholder wishing to transfer his holding.

preference

1. The favouring by an insolvent debtor of a particular creditor (for example by paying one creditor in full when there is no prospect of paying the others). If the debtor subsequently becomes bankrupt (in the case of an individual) or goes into insolvent liquidation (in the case of a company), and was motivated by a desire to improve the position of the creditor, the court can order that the position be restored to what it would have been had that creditor not been given preference. The court can also make orders when the debtor has given property away or sold it at an undervalue.

2. A floating *charge created within one year before the commencement of *winding-up in favour of an existing creditor. It is invalid if the company was insolvent at the time it was created unless the creditor provided some fresh benefit to the company at that time, e.g. by way of loan or goods supplied. If the charge was created in favour of a person connected with the company, the period is two years and it is not necessary to show that the company was insolvent at the time of its creation.

preference share

See share.

preferential debts

The debts of a company on *winding-up or of an individual on bankruptcy that have priority over unsecured debts and those secured only by floating *charge. They are defined in the Insolvency Act 1986 and include various debts to government departments and to employees.

preferment

1. The submission of a statement or information.

2. The act of bringing a *bill of indictment before an appropriate court.

pregnancy

(in employment law)

See dismissal; maternity rights.

pregnancy per alium

(Latin: by another)

Pregnancy of a woman at the time of her marriage by someone other than her husband. If the husband was unaware of the true facts of the pregnancy, the marriage is voidable.

prehearing assessment

See employment tribunal.

pre-incorporation contract

A contract purporting to be made by a person acting as agent for a company not yet formed. Under the Companies Act 1985, that person is personally liable on the contract.

prejudice

Preconceived judgment.

See unfair prejudice; without prejudice.

preliminary inquiries

A set of inquiries presented by an intending purchaser of land or property to the intending vendor at an early stage in the transaction. Sometimes known as precontract inquiries, they relate to the state and condition of the property rather than to the title. Printed standard forms of inquiries are available. A vendor who gives false or misleading replies can be liable for misrepresentation, but a vendor's replies may be (and often are) noncommittal and evasive. Alternatively, a vendor may be required to complete a Seller's Property Information Form (See conveyancing).

preliminary investigation

(preliminary inquiry)

The procedure in a magistrates' court to decide whether or not there is a sufficient case to commit an accused person for trial by the Crown Court.

See committal for trial.

preliminary point of law

A question of law ordered to be tried before the facts of the case are determined. Orders of this kind are normally made if the point of law will be decisive in the litigation or will result in a substantial saving of *costs.

premises

pl. n.

1. Land or buildings; a parcel of land.

2. See deed.

premium

1. The sum payable (usually annually) by the insured to the insurer under a contract of *insurance. Since October 1994 household and motor insurance premiums have been subject to a duty known as insurance premium tax (5% in 2001).

2. A lump sum that is sometimes paid by a tenant at the time of the grant, assignment, or renewal of his lease or tenancy. It was illegal to demand a premium in respect of a *protected tenancy but this does not apply to *assured tenancies.

3. See capital.

prenuptial agreement

An agreement entered into before marriage, usually to limit the claims one spouse can make on divorce from the other. Prenuptial agreements are common in the United States but are of dubious validity in the UK.

preparatory hearing

A hearing before a judge of the Crown Court, before the jury are sworn, in a case of serious or complex fraud for the purpose of identifying issues likely to arise in the case and assisting in their comprehension and management.