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Lord Chief Justice 11 page

primary facts

Facts found by the trial court to be established on the basis of the testimony of witnesses and the production of real or documentary evidence. Appellate courts are generally unwilling to change the trial court's findings concerning primary facts, but may reverse its decisions concerning the inferences to be drawn from them.

Prime Minister

The head of the UK government, who is appointed by the Crown to select and preside over the *Cabinet and bears ultimate responsibility for the policy and machinery of government. The Prime Minister also advises the Crown on such matters as the dissolution of Parliament, the creation of peerages, and the making of senior appointments (e.g. the Ombudsman). Like the Cabinet, the office derives from *constitutional convention, which requires that the person appointed is the leader of the party with the greatest number of Members of Parliament.

principal

1. (in criminal law) The person who actually carries out a crime. (Formerly, the actual perpetrator was known as the principal in the first degree and a person who aided and abetted was called principal in the second degree, but the former is now known as the principal and the latter as the secondary party.) A person can be a principal even if he does not carry out the act himself; for example, if he acts through an innocent agent, such as a child, or if he is legally responsible . for the acts of another (e.g. because of *vicarious liability).

See also accessory.

2. (in the law of agency) The person on whose behalf an *agent acts.

3. (in finance) The sum of money lent or invested, as distinguished from the interest.

principal mansion house

The main house (other than a farmhouse or a house Whose accompanying garden, park, and grounds occupy less than 25 acres) comprised in a settlement of land. Under the Settled Land Act 1925, if the terms of the settlement so provide, the tenant for life cannot sell the principal mansion house without the consent of the trustees or the court. Consent is necessary under a settlement made before 1926 unless its terms dispense With the requirement.

principle of legality

See nullum crimen sine lege.

priority

See priority of assignment; priority of mortgages; priority of time.

priority neighbourhood

An area declared such by a housing authority, being broadly similar to a *housing action area. A priority neighbourhood is declared when it is not practicable either to constitute the area itself a housing action area or a general improvement area or to include it in one. Priority neighbourhoods are typically areas surrounding or adjoining housing action areas or general improvement areas.

priority notice

1. A notice lodged at HM Land Registry that prevents, for 14 days, anyone other than the person lodging the notice from registering title to the land concerned or any dealing in it. Provided that he lodges his application for registration of his own title or dealing within the period of protection, he will not be bound by any other encumbrances lodged for registration before his own. In practice, dealings (i.e. transfers, mortgages, etc.) in land that is already registered are usually protected by the applicant's certificate of *official search rather than by separate registration of a priority notice.

2. In the case of unregistered land, a notice lodged at the Land Charges Department of the intended registration of a charge. The priority notice is lodged at least 15 days before the intended charge is to take effect, and the subsequent registration of the charge will be effective from the time the charge was created, provided the application for registration is presented within 30 days after the priority notice. Thus when A is about to convey land to B, who is to give a restrictive covenant in A's favour, A may lodge a priority notice before completing the transaction and register the covenant afterwards. This will ensure that the covenant will bind any purchaser or mortgagee from B whose interest may arise before A can register the covenant as a charge.

priority of assignment

The order in which two or more *assignments of a chose in action takes effect. This order is determined according to the date of receipt of the notice of assignment by the legal owner of the property assigned.

priority of mortgages

The order in which two or more mortgages of the same property take effect. If there are several mortgages of the same property, and its value is less than the amount due on the mortgages, the respective claims of the mortgagees must be determined. Before 1926, priority often depended on the date order in which the mortgages were created. Since 1925 the order of priority in the case of *registered land is according to the date order in which the respective mortgages are registered. A first mortgagee of *unregistered land usually retains the title deeds and has priority over others except prior mortgages that are registered as a land charge in the Land Charges Registry. Otherwise the order is governed by the order of registration. Priority of equitable interests is determined by the date at which notice is received by the trustees.

See also consolidation of mortgages; tacking.

priority of time

When there are two or more competing equitable interests, the equitable maxim qui prior est tempore potior est jure (he who is earlier in time is stronger in law) applies. This means that the first in time prevails over the others. For example, where a property is subject to two mortgages, the one granted first has priority (See priority of mortgages). However, the priority can be affected by the existence of a purchaser for value without notice, fraud, estoppel, gross negligence, registration, and overreaching.

privacy

The right to be left alone. The right to a private life as set out in Article 8 of the European Convention on Human Rights is now part of UK law as a consequence of the *Human Rights Act 1998. The right includes privacy of communications (telephone calls, correspondence, etc); privacy of the home and office; environmental protection; the protection of physical integrity; and protection from unjustified prosecution and conviction of those engaged in consensual nonviolent sexual activities. 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. Public authorities have a limited but positive duty to protect privacy from interference by third parties.

private Act

See act of parliament.

private Bill

See bill.

private carrier

See carrier.

private company

A residuary type of *registered company defined under the Companies Act 1985 as any company that is not a *public company. This form of company is prohibited from offering its shares to the public at large. Although not a strict requirement under the Act, it is common to find such companies placing restrictions on the *transfer of shares and confining them to other (often family) members. Unlike a public company, a private company can consist of only one *company member (single-member company), and many of the other restrictions that apply to public companies (such as those relating to *financial assistance) may be relaxed provided that the company complies with a specified procedure under the Act.

private defence

Action taken in reasonable defence of one's person or property. It can be pleaded as a defence to an action in tort. The right of private defence includes the defence of one's family and, probably, of any other person from unlawful force.

private international law

(conflict of laws)

The part of the national law of a country that establishes rules for dealing with cases involving a foreign element (i.e. contact with some system of foreign law). For example, if a contract is made in England but is to be fulfilled abroad, it will be necessary to decide which law governs the validity of the contract. This is known as the question of choice of law. Generally, under the Rome Convention (1980; in force from 1 April 1991), the parties' choice of law in a written contract is respected; rules are set down in the Convention stating which laws apply if the parties to the contract have not made a choice. Sometimes the courts must also decide whether or not they have jurisdiction to hear the case and whether or not to recognize a *foreign judgment (such as a divorce obtained abroad). Private international law must not be confused with public *international law.

private law

The part of the law that deals with such aspects of relationships between individuals that are of no direct concern to the state. It includes the law of property and of trusts, family law, the law of contract, mercantile law, and the law of tort.

Compare public law.

private life

See privacy.

private member's Bill

See bill.

private nuisance

See nuisance.

privatization

A programme of denationalization - removing the provision of public utility services from the public sector into the private sector under the auspices of public companies with public shareholders. The shareholders mayor may not include the government, but increasingly do not.

See also marital privileges.

privileged communication

1. A confidential official communication that may be withheld from production in court proceedings because disclosure of its contents would be against the public interest.

2. A communication between parties in a confidential relationship, such as husband and wife or s solicitor and client, evidence of which may not be given without the consent of the party to whom the privilege belongs. Communications between patient and doctor are not privileged.

3. (in the tort of *defamation) A communication protected by absolute or qualified privilege. No action for defamation may be brought for a communication that is protected by *absolute privilege. A communication covered by *qualified privilege is protected unless it was made maliciously.

privileged will

A will that is valid even though it does not comply with the formal requirements of the Wills Act 1837(e.g. in being written but not witnessed or in being oral) or is made by a minor. The right to make a privileged will is conferred by the 1837 Act (as extended by the Wills (Soldiers and Sailors) Act 1918) on any soldier in actual military service (a soldier's will or military testament) and any mariner or seaman at sea (a mariner's will). It also applies to airmen on actual military service and, on normal principles of statutory interpretation, to females as well as to males (for example, a female secretary aboard an ocean liner has been held to be a mariner at sea). Actual military service has been very widely interpreted. It is not confined to service as a combatant during time of war, but extends to service in any other capacity (e.g. as an auxiliary or a trainee) and to service when war is merely imminent. Service with an occupying force after a war is also included, as is service in support of the civil power against terrorists (e.g. in Northern Ireland). At sea has received a similarly wide interpretation. A member of the naval forces is treated as being at sea if he is in an equivalent position to a soldier or airman on actual military service (e.g. if he is on shore leave during wartime).

privilege of witness

See privilege.

privity

The relationship that exists between people as a result of their participation in some transaction or event; for example, *privity of contract and *privity of estate.

privity of contract

The relationship that exists between the parties to a contract. The common law doctrine of privity of contract established that only the parties to the contract, i.e. those that provided *consideration, could sue or be sued under the contract. Third parties could not derive rights from, nor have obligations imposed on them by, someone else's contract. This position has now been modified by the Contracts (Rights of Third Parties) Act 1999. By the provisions of the Act, a person can enforce a term of a contract to which he is not a party provided that the term purports to confer a benefit on him or the contract expressly provides for such enforcement.

privity of estate

The relationship between landlord and tenant under the same lease; as long as the relationship subsists, the landlord and tenant may enforce their respective obligations against one another even though they were not original parties to the lease. Thus when A grants a lease to B who subsequently assigns his interest to C, while A conveys his reversion to D, D may enforce against C the tenant's covenants given by A although there is no contract between D and C. There is no privity between different leasehold estates. For example if A grants a lease to B who sublets to C, A cannot sue C to enforce positive obligations in either the lease or the sublease, although he may be able to enforce *restrictive covenants contained in the headlease, against C.

Privy Council

(PC)

A body, headed by the President of the Council, that formerly advised the Crown on government policy but has been superseded in that role by the *Cabinet. Its functions are now mainly formal (e.g. a few members are summoned to make *Orders in Council), but it has limited statutory powers of legislation (See Orders of Council) and it also advises the sovereign, through committees, on certain judicial matters (See Judicial Committee of the Privy Council) and other matters of a nonpolitical nature (e.g. the grant of university charters). There are about 350 Privy Counsellors, who include members of the royal family, all Cabinet ministers, the Speaker and other holders of high nonpolitical office, and persons honoured for public services. A Privy Counsellor is addressed as "Right Honourable".

prize court

A municipal court that, in accordance with international law, deals with questions relating to prize, i.e. ships, aircraft, or goods captured during . wartime at sea or in port by the naval or air forces of a belligerent power. Prize law entitles the belligerent state to expropriate not only enemy vessels and goods but also neutral property suspected of carrying *contraband or running a *blockade. The Supreme Court of Judicature (Consolidation) Act 1925 constituted the High Court a prize court; jurisdiction in prize was vested m the Probate, Divorce and Admiralty Division until its transfer in 1970 to the Admiralty Court (part of theQueen's Bench Division). Prize appeals go to the Judicial Committee of the Privy Council.

probate

A certificate issued by the Family Division of the High Court, on the application of *executors appointed by a will, to the effect that the will is valid and that the executors are authorized to administer the deceased's estate. When there is no apparent doubt about the will's validity, probate is granted in common form on the executors filing an *affidavit. Probate granted in common form can be revoked by the court at any time on the application of an interested party who. proves that the will is invalid. When the will is disputed, probate in solemn form is granted, but only if the court decides that the will is valid after hearing the evidence on the disputed issues in a *probate action. All parties who knew of the probate action and of their interest in the estate are bound by the court's order, whether or not they were parties to the action.

probate action

Proceedings in court to determine, for example, whether or not a disputed will is valid or to seek revocation of a previous grant of probate. Contentious probate business is dealt with by the Chancery Division of the High Court. A will may be challenged on the grounds that it was not properly executed (See execution of will), that the testator lacked testamentary capacity, or that it has been revoked.

Probate, Divorce, and Admiralty Division

A division of the *High Court of Justice created by the Judicature Acts 1873-75 to take over the jurisdiction formerly exercised by the Court of Probate. the Court for Divorce and Matrimonial Causes, and the High Court of Admiralty. The Division was renamed the * Family Division by the Administration of Justice Act 1970:the Admiralty jurisdiction was transferred to the *Queen's Bench Division and the contentious probate jurisdiction to the *Chancery Division.

probation hostel

Premises for the accommodation of persons who may be required to reside there by *community rehabilitation orders.

probation officer

An officer whose duties include supervising persons bound by (for example) *community rehabilitation orders, *supervision orders, or *community punishment orders. A probation officer advises, assists, and befriends these and others (e.g. persons who have been released from prison or are on bail) and inquires into the circumstances of offenders in order to assist the court to determine how best to deal with them.

probation order

See community rehabilitation order.

procedure

(in court proceedings)

The formal manner in which legal proceedings are conducted.

See also adjective law; practice; rules of court.

process

1. (in court procedure) A document issued by a court to require the attendance of the parties or the performance of some initial step in the proceedings by a defendant. When it is used to initiate the proceedings it may be called the originating process. Most of the confusing process procedures have now been abolished and replaced under the *Civil Procedure Rules; proceedings are now usually initiated by the issue of a *claim form.

See abuse of process.

procès-verbal

(French)

An informal record or memorandum of international understandings arrived at in negotiations. It is frequently a preliminary step in concluding a *treaty.

procurator fiscal

In Scotland, an officer of the sheriff court (roughly equivalent to the English county court). Appointed by the *Lord Advocate, he must be a qualified advocate or solicitor. His duties include initiating preliminary investigations into criminal cases in his district, taking written statements (precognitions) from witnesses, conducting the prosecution, and conducting inquiries into sudden or suspicious deaths.

Procurator General

See treasury solicitor.

procurement

Persuading or inviting a woman to have sexual intercourse. The following are offences of procurement; the sexual intercourse sought may be marital intercourse. (1) Procuring a woman to have sexual intercourse with oneself or anyone else, anywhere in the world, by means of threats or false pretences. (2) Procuring a girl under the age of 21 to have sexual intercourse with a third person anywhere in the world. (3) Procuring a severely mentally retarded woman (who is incapable of guarding herself against exploitation) to have sexual intercourse anywhere in the world. These three offences are committed only if sexual intercourse takes place. (4) Procuring a woman to become a prostitute or to leave the UK with the intention that she should join or frequent a brothel. All these offences are punishable by up to two years' imprisonment.

procuring breach of contract

inducing breach of contract

(procuring breach of contract, inducing breach of contract)

The tort of intentionally persuading or inducing someone to break a contract made by him with a third party. It is actionable by the party who suffers loss from the breach. Thus a theatre manager may sue the person who induces a singer to break her contract to perform at his theatre. In some circumstances a defence of *justification is available. The tort also covers indirect procurement of breach of contract (i.e. by inducing persons not parties to the contract to procure the breach) and interference with the performance of a subsisting contract without actually causing a breach. These forms of the tort, however, are only actionable if unlawful means are used to procure the breach or interference. The operation of the tort in *trade disputes is limited by statute.

See also interfering with trade or business.

procuring disclosure of personal data

An offence committed by someone who obtains personal information about an individual that is stored on a computer when he knows or believes that he is not a person to whom the data user is registered to disclose this data (See data protection). Other offences are committed when the data procured in this way is offered for sale or sold. In each case the offences were created by the Criminal Justice and Public Order Act 1994.

production of documents

The act of a party in making available documents in his possession, custody. or power either for inspection by the other party (See disclosure and inspection of documents) or for use as evidence at trial in accordance with a *notice to produce.

products liability

The liability of manufacturers and other persons for defective products. Under the Consumer Protection Act 1987, passed to conform with the requirements of European Community law, the producer of a defective product that causes death or personal injury or damage to property is strictly liable for the damage. A claim may only be made for damage to property if the property was for private use or consumption and the value of the damage caused exceeds £275. A product is defective if its safety is not. such as persons generally are entitled to expect. The persons liable for a defective product are:

(1) the producer (i.e. the manufacturer, including producers of component parts and raw materials),

(2) a person who holds himself out to be producer by putting his name or trade mark on the product,

(3) a person who imports the product into the European Community, and

(4) a supplier who fails, when reasonably requested to do so by the person injured, to identify the producer or importer of the product '.

There are several defences to liability under the Act, e.g. Contributory negligence, that the defendant did not supply the product or did not supply It m the course of business; that the defect did not exist at the relevant time; and that the state of scientific and technical knowledge at the relevant time was not such that a producer of such products could be expected to have discovered the defect Actions must be started within three years from the date when the claimant first had a cause of action or (if later) first knew or should have known the material facts, but not later than ten years from when the product was put into circulation. Liability under the Act may not be excluded by any contract or notice.

Compensation for defective products can also be obtained under the general principles of contract and tort. The purchaser of a defective product may sue the seller for *breach of contract in failing to supply a product that conforms to the contract (including its *implied conditions). An action in .tort can be brought by anyone whose person or property is damaged by a defective product against the person whose *negligence caused the damage; this person may be the manufacturer or someone else, such as a distributor or a repairer.

profit-and-loss account

A document presenting in summary form a true and fair view of the company's profit or loss as at the end of its financial year. It must show the items listed in one of the four formats set out in the Companies Act 1985. Its function is to show as profit or loss the difference between revenue generated and the expenditure incurred in the period covered by the account.