Lord Chief Justice 12 page

promise

n.

An undertaking given by one person (the promisor) to another (the promisee) to do or refrain from doing something. It is legally binding only if contained in a *contract or made by *deed.

promissory estoppel

See estoppel.

promissory note

An unconditional promise in writing, made by one person to another and signed by the maker, engaging to pay a specified sum of money to (or to the order of) a specified person or to the bearer, either on demand or at a fixed or determinable future time. Promissory notes are *negotiable instruments and many of the provisions in the Bills of Exchange Act 1882 apply with necessary modifications to promissory notes. Promissory notes are not presented for acceptance and the party primarily liable is the maker of a note. A bank note is a promissory note issued by a bank; the sum of money mentioned on the note is payable to the bearer on demand.

promoter

n.

1. A person engaged in the formation or *flotation of a company. A promoter stands in a *fiduciary relationship to the company; his functions may include drafting a *prospectus, negotiating preliminary agreements. instructing solicitors, and obtaining directors. Solicitors, bankers, and other professionals involved in the company, but acting merely in their professional role, are not regarded as promoters.

2. One who introduces a private *Bill.

proof

n.

1. The means by which the existence or nonexistence of a fact is established to the satisfaction of the court, including testimony, documentary evidence, presumptions. and judicial notice. Since most facts with which a court is concerned are not capable of being tested empirically, proof in the legal sense is quite different from proof in the context of mathematics or science. The uncorroborated evidence of one credible witness is sufficient proof for most purposes in the law.

See standard of proof.

2. (Informal) The written statement of a prospective witness obtained by a solicitor. A witness is said not to have come up to proof if he fails to testify in accordance with his proof.

proof beyond reasonable doubt

The *standard of proof required in criminal proceedings. If the jury has any reasonable (even if unlikely) doubts about the guilt of the accused, it may not convict him. It is often paraphrased by the judge instructing the jury that they must be "satisfied so that they are sure" of the guilt of the accused. It is disputed whether this standard is ever applicable in civil proceedings (e.g. when there is an allegation of fraud): it is generally held that it is not.

See also burden of proof.

proof of age

The age of a person may be proved by *direct evidence, such as the testimony of someone present at the person's birth, and in some cases from his appearance. It is usually proved by producing a birth certificate, under the exception to the hearsay rule relating to statements in *public documents, and evidence that the person in question is the one referred to in the birth certificate.

proof of birth

Birth is usually proved by the production of a birth certificate, which is admissible under the exception to the hearsay rule relating to statements in *public documents, coupled with evidence identifying the person in question with the person referred to in the birth certificate.

proof of handwriting

Handwriting may be proved by the testimony of the person whose handwriting it is or by that of someone who saw him execute the document in question. It may also be proved by the opinion of someone familiar with the handwriting of the alleged writer or by comparison with a proved example of the writer's handwriting. Expert testimony is also admissible.

proof of marriage

Legally valid evidence that a *marriage was celebrated. This will usually be shown by possession of a marriage certificate and proof of identity, but may also be shown by other forms of evidence.

proper law of a contract

The system of law that is applied in *private international law to a contract with foreign elements. Which system governs the contract will depend on the intention of the parties to the contract, to be determined in each case by considering the terms of the contract, and all the surrounding facts. If the parties have expressly agreed which law should govern the contract, that law will normally be applied by virtue of the Rome Convention (1980' in force from 1 April 1991). If, as is usual, they have not expressly agreed, the courts try to Infer their intention from all the circumstances; if it cannot be inferred, they will apply the system of law with which the contract has "its closest and most real connection'". In the UK the Rome Convention is implemented by the Contracts Applicable Law Act 1990.

property

n.

Anything that can be owned. A distinction is made between real property (land and incorporeal *hereditaments) and personal property (all other kinds of property) and between tangible property (that which has a physical existence, e.g. chattels and land) and intangible property (*choses in action, including intellectual property, and incorporeal hereditaments). For purposes of the law of *theft, property includes all real, personal, and intangible property, although land can only be stolen under certain specified conditions. For purposes of the law of *criminal damage, property does not include intangible property.

property adjustment order

An order made by the court in proceedings for divorce, separation, or nullity that affects rights of ownership of property belonging to either spouse. Such orders include the transfer of property from one spouse to another, settling property for the benefit of the other spouse or children, varying marriage settlements, or extinguishing rights under such settlements. The courts have exceptionally wide discretion in making property adjustment orders, and each case will depend on its own facts. The general aim of the discretion, and factors to be considered, are identical with those listed in relation to *financial provision orders; two other factors to be considered are the need to provide adequate housing for both spouses, and especially for minor children. and the need to allow each spouse a share in the capital value of the family assets, especially the *matrimonial home. The courts have power to order the sale of the matrimonial home or to make the home subject .to a deferred trust for sale, e.g. until the children grow up. As in the case of financial provision orders, the court must achieve a *clean break wherever possible. Property adjustment orders are often awarded in addition to financial provision orders and may only be made on or after the granting of the decree of divorce, separation, or nullity.

property in goods

A right of *ownership in chattels.

property register

See land registration.

proponent

n.

The party who bears the evidential, and in some cases the persuasive *burden of proof in relation to an issue in litigation. '

proportionality

n.

1. A principle of the European Union ensuring that a legislative measure is introduced at EU level only when it is appropriate to have a measure at that level, and that when local legislation is all that is needed, this will be encouraged.

See also subsidiarity.

2. A central provision of the *European Convention on Human Rights. It applies particularly to the *qualified rights and where the expression "necessary in a democratic society" is contained within the article. Whether or not such a right has been violated will depend on whether the interference with the right is proportionate to the legitimate aim pursued by that interference, Thus even if a policy that interferes with a Convention right might be aimed. at securing a legitimate purpose (e.g. the prevention of crime), this will not in itself justify the violation if the means adopted to secure the purpose are excessive m the circumstances.

propositus

n.

(Latin)

1. The person immediately concerned with an issue.

2. An ancestor through whom descent is traced.

3. A testator when making his will.

propounder

n.

A person in a *probate action who claims that a disputed will is valid.

proprietary estoppel

See estoppel.

proprietor

n.

One who owns land. In the case of registered land, the registered proprietor is the person entitled to the *legal estate and is recorded as such in the proprietorship register (See land registration). The owners of equitable interests are protected by registration of their *minor interests in the appropriate manner.

proprietorship register

See land registration.

prorogation

n.

See parliament.

proscribed organization

An organization or association declared to be forbidden by the Home Secretary under the Terrorism Act 2000, because It appears to be concerned with terrorist activities (See terrorism).

prosecution

n.

The pursuit of legal proceedings, particularly criminal proceedings. (The term is also used for the party instituting the proceedings.) Criminal prosecutions on indictment are m the name of the Crown and summary prosecutions are in the name of an individual, usually a police officer, although a private individual may bring a prosecution (most private prosecutions are for assault). The *Attorney General can intervene in a private prosecution and either take it over or abandon it. Many government departments and other authorities have power to prosecute; for example, the Inland Revenue, the Department for Work and Pensions, and local authorities. Under the Prosecution of Offenders Act 1985, the duty of conducting prosecutions falls principally upon the *Crown Prosecution Service, which exercises the functions previously vested in the Director of Public Prosecutions, its head. It also takes over the conduct of most proceedings instituted by the police. The Attorney General's consent is required before prosecution for some offences, e.g. in cases involving official secrets.

prosecutor

n.

The person who institutes criminal proceedings on behalf of the Crown.

See prosecution.

prospectus

n.

A document inviting the public to invest in shares or debentures of a public company (See flotation). The prospectus of a *listed company (called the listing particulars) must contain the information required by the Stock Exchange, the prospectus of an unlisted company must comply with the Financial Services Act 1986.

prostitution

n.

The offering of her body by a woman for sexual intercourse or other sexual activities in return for payment. Prostitution itself is not a crime, but various activities related to it are (See brothel; kerb crawling; living on immoral earnings' procurement; soliciting). Advertising details of prostitutes may amount to a *conspiracy at common law or an *obscene publication. Certain offences concerned with brothels and living on immoral earnings also apply to male prostitution.

protected child

A child whom someone wishes to adopt and over whom a . authority must exercise supervision. Under the 1976 Adoption Act, such supervision is only required when the child was not placed for adoption by an adoption agency, in agency cases, the agency itself will be responsible for supervision.

protected goods

(under the Consumer Credit Act 1974) Goods that are the subject matter of a regulated *hire purchase or *conditional sale agreement of which the debtor is in breach, but under which he has already paid to the creditor one-third or more of the total price of the goods, which remain in the ownership of the creditor. The creditor may not recover possession of the goods except on an order of the court, which may allow the debtor further time to pay. The restriction does not apply if the debtor has terminated the agreement.

protected occupancy

The right of an agricultural worker to occupy a *tied cottage with statutory protection similar to that of a *protected tenancy. Protected occupancies have been replaced by assured agricultural occupancies (*assured agricultural occupancy) by the Housing Act 1988, but protected occupancies already in existence continue to have the same protection as before.

protected person

A head of state (or a member of a corporate head of state), head of government, or minister for foreign affairs, or any member of his family accompanying him; or a representative or official of a state or of an intergovernmental international organization who is entitled under international law to special protection from personal injury or any member of his family who is also a member of his household. The Internationally Protected Persons Act 1978 incorporates into English law the provisions of the 1974 New York Convention on Crimes against Internationally Protected Persons. The Act gives jurisdiction to English courts to try those charged with committing certain serious acts against protected persons (e.g. rape, assault, causing actual bodily harm, wounding or inflicting grievous bodily harm, kidnapping, and certain attacks on premises), even if the alleged acts were committed outside the UK. It also creates offences of threatening to commit any of the above acts anywhere in the world, and extends jurisdiction to various types of attempts and assistance. It is no defence to any of these offences that the defendant did not know that the victim was a protected person.

protected shorthold tenancy

See assured shorthold tenancy.

protected site

A site for which planning permission has been granted for one or more mobile homes to be set up.

protected state

A state that, although nominally sovereign, is under the protection of another state. Usually the protected state allows the protector full control over its external affairs but retains control over its internal affairs. Examples are the Kingdom of Bhutan under the protection of India and the State of Brunei under British protection. A protected state is sometimes called a protectorate.

protected tenancy

A contractual residential tenancy in which the tenant has the right to a *fair rent and *security of tenure. Protected tenancies have been replaced by assured tenancies (*assured tenancy) under the Housing Act 1988, but protected tenancies already in existence continue to have the same protection as before. To qualify as a protected tenancy, the premises must be let as a separate dwelling that is within certain rateable value limits and must have been created before the Housing Act 1988 came into force (15 January 1989). There are some exceptions, including lettings to students, holiday lettings, local authority housing, and lettings in which the rent includes payment for board or attendance. If a landlord wishes to terminate a protected tenancy he must first terminate the contractual tenancy in the usual way (See notice to quit). A *statutory tenancy then comes into existence and the landlord can obtain possession only by a court order. To do this he must have suitable grounds, such as nonpayment of rent, provision of suitable alternative accommodation for the tenant, or if the landlord needs the property for himself or one of his family to live in.

There were formerly two kinds of protected tenancy: controlled and regulated. All controlled tenancies have now been converted into *regulated tenancies. (See converted tenancy.) Furnished tenancies have the same protection as unfurnished tenancies, but they are more likely to fall within one of the exceptions to protection.

See also assured shorthold tenancy; secure tenancy; restricted contract.

protection and indemnity club

protection and indemnity association

protection and indemnity association or club

An association of shipowners formed to meet, out of funds contributed by its members, liabilities that arise from maritime activities and are not covered by insurance.

protectionism

n.

The practice of protecting states or EU interests by ^lmP^0S 6 trade barriers and customs duties to prevent imports from abroad. Protectionism is the opposite of free trade. As a party to the *General Agreement on Tariffs and Trade and the *World Trade Organization, the EU seeks to ensure free trade not only between the members of the EU and the *European Economic Area but also with other countries, although not to the same extent as within the EU.

protective award

An award made by an employment tribunal ordering an employer to continue to pay wages for a "protection period" to employees who have been made redundant in breach of the consultation requirements laid down in the Trade Union and Labour Relations (Consolidation) Act 1992 (See redundancy). When an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, he must consult with appropriate representatives of the affected employees. Consultations must begin within good time, in any event 90 days before the first dismissal takes effect (If the employer is proposing to dismiss 100 or more employees within the 90 days) or at least 30 days beforehand (if the employer is proposing to dismiss between 20 and 99.employees). Failure to comply with these requirements gives a recognized trade union. an elected employee representative, or an affected employee a right to apply to an *employment tribunal. In the absence of special circumstances rendering it not reasonably practicable to comply with these requirements, the employment tribunal is empowered to make such a protective award. It has discretion regarding the duration of the protected period, subject to a maximum of 90 days. The Act gives the tribunal guidance that the protected period should be just and equitable in all the circumstances having regard to the seriousness of the employer s default. Each employee covered by the award is entitled to one week's pay for each week of the protected period. If the employer fails to make any or all of the payments due for this period, the individual employee may complain, within three months, to an employment tribunal, which may order payment.

protective trust

(alimentary trust)

A trust for a period no longer than the beneficiary's life, the period ending if certain events (commonly including the bankruptcy of the beneficiary) take place. At the occurrence of such an event, the income of the property is applied at the absolute discretion of the trustees or the beneficiary or his family, the beneficiary no longer having any right to receive the income himself.

protector of settlement

The first person entitled, under a *strict settlement of land, to a life interest preceding the *entailed interest or (If there is no prior interest) the settlor. Under the Fines and Recoveries Act 1833, a person entitled in *remainder to an entailed interest can only bar the entail completely, so as to create a fee simple in remainder, if the protector's consent is given by deed on or before execution of the disentailing deed. Without the protector's consent only the tenant in tail and his issue are barred; when they die out the land passes to the person next entitled in remainder or in reversion (in pre-1926 terminology, a base fee).

protest

n.

1. An express indication that an act is not to carry an implication that might otherwise attach to it. For example, when a payment is made under protest, the payer does not agree that he is liable for the payment.

2. A procedure by which a *notary provides formal evidence of the *dishonour of a bill of exchange. When a *foreign bill has been dishonoured by nonacceptance or nonpayment it is handed to the notary, who usually presents it again. If it is still dishonoured, the notary attaches a slip showing the answer received and other particulars - a process called noting. The protest, in the form of a formal document, may then be drawn up at a later time.

protocol

n.

1. The original draft of a document.

2. An international agreement of a less formal nature than a *treaty. It is often used to amend treaties. It may also be an instrument subsidiary or ancillary to a *convention, in which case it may deal with points of interpretation and reservations.

3. A code of procedure.

4. Minutes of a meeting setting out matters of agreement.

provable debt

A debt in respect of which a creditor can claim a share of a bankrupt's assets. A provable debt must either be incurred by the bankrupt before a *bankruptcy order is made against him or arise after the order is made as a result of an obligation that existed beforehand.

Compare nonprovable debt.

proving a will

Obtaining *probate of a will or *letters of administration cum testamento annexo.

provisional damages

Damages given in personal injury cases when the injuries sustained may cause in the future some serious disease or other serious deterioration in the claimant's physical or mental condition. The court has the power to make an immediate award of damages on the basis of the claimant's present condition and order that he can come back within a specified time for a further award if the disease or condition develops.

provisional liquidator

A person appointed by the court to conduct the *compulsory winding-up of a company pending the appointment of a *liquidator. Either the *official receiver or a qualified *insolvency practitioner may be appointed.

provisional orders

Orders made by government ministers but requiring confirmation by Act of Parliament (a Provisional Order Confirmation Act) before becoming law. They do not, therefore, constitute *delegated legislation. Provisional orders were formerly used extensively, primarily to confer powers on local authorities, but have been largely superseded by *special procedure orders.

proviso

n.

A clause in a statute, deed, or other legal document introducing a qualification or condition to some other provision, frequently the one immediately preceding the proviso itself.

In criminal appellate procedure, applying the proviso occurs when the Court of Appeal uses the power conferred by the proviso to section 2 of the Criminal Appeal Act 1968. This empowers the court to dismiss an appeal if it considers that no miscarriage of justice has occurred, even though it believes that the point raised in the appeal might be decided in favour of the appellant.

provocation

n.

Conduct or words causing someone to lose his self-control. Provocation is not recognized as a *general defence to a criminal charge in English law, though what otherwise would have been murder may be reduced to manslaughter if provocation is shown (it is not, however, a defence to a charge of attempted murder).

The test for provocation is whether the acts or words involved did in fact make the defendant lose his self-control and if so, whether they would also have made a reasonable man in the defendant's position do the same. This is a question of fact for the jury to decide in each case. A reasonable man for these purposes must be a person of the same sex and age as the defendant and sharing any characteristics of the defendant that might affect the seriousness of the provocation. For example, a sexually impotent defendant might be more easily provoked by taunts about his impotence than an ordinary man. The jury would therefore have to consider how a reasonable impotent man would have reacted. However, such characteristics as intoxication from alcohol or drugs cannot be attributed to the reasonable man.

See also battered spouse or cohabitant.

proxy

n.

A person (not necessarily a company member) appointed by a company member to attend and vote instead of him at a company meeting. Directors often offer themselves as proxies by sending out proxy forms with the notice of the meeting. When this is done at company expense, forms must be sent to all company members alike. In the case of a *listed company, the form must enable members to direct the proxy whether to vote for or against the resolution; in other cases, it may specify that the proxy is to use his discretion. Usually a proxy can vote only upon a poll (See voting). In private companies the proxy can speak at the meeting.

psychopathic disorder

For the purposes of the Mental Health Act 1983, a form of *mental disorder consisting of a persistent disorder or disability of mind (which mayor may not include significant impairment of intelligence) that results in abnormally aggressive or seriously irresponsible conduct and requires, or is susceptible to, medical treatment.

Public Accounts Committee

A nondepartmental select committee of the House of Commons, established in 1861 to examine government expenditure and report on any irregularity or other matter to which it considers that attention should be drawn. It has 15 members and its chairman is customarily a member of the Opposition.

public Act

See act of parliament.

publication

n.

1. (in the law of *defamation) The communication of defamatory words to a person or persons other than the one defamed. In the English law of tort, publication to at least one other person must be proved. Communication between husband and wife does not amount to publication, but communication by the defendant to the spouse of the claimant is sufficient. Dictation of a defamatory statement to a secretary or typist is publication. Publication to persons other than the one defamed is not required in Scottish law or in criminal libel.

2. (in copyright law) The issuing of reproductions of a work or edition to the public. Protection under the Copyright, Designs and Patents Act 1988 may depend on whether the work has been published

3. For the purposes of the Obscene Publications Acts, See obscene publications.

public Bill

See bill.

public body

Any body, corporate or otherwise, that performs its duties and exercises its powers for the public benefit, as opposed to private gain. Under the local Government Act 1972, public bodies include local authorities, trustees, commissioners; and those who have duties to provide cemetaries and markets and act for the improvement of any place, or who have powers to issue or levy *precepts.

public company

A type of registered company that can offer its shares to the public (Compare private company). Its memorandum of association must state that it is a public Company, that. its name ends with the words "public limited company" (or plc), and that its "authorized capital is at least the authorized minimum (£50,000). It cannot do business until It has allotted shares with a nominal value corresponding With the authorized minimum. It cannot allot shares except upon payment of one-quarter of their nominal value plus any *share premium. £12,500 is therefore its minimum capital. It thus may not have much wealth or substance, although many assume the contrary. Under the Companies Act 1985 an undertaking to do work or perform services is not an acceptable *consideration for shares in a public company, and other non-cash considerations are subject to independent valuation and must be transferred to the company within five years of *allotment.

See also flotation; stock exchange.

public corporation

A corporation established to perform a public function, frequently commercial but not necessarily so (it may be social advisory, or of any other character). Thus bodies established to manage nationalized industries are public corporations, as are such bodies as English Nature. A public corporation is normally a Statutory corporation, i.e. established by Act of Parliament; exceptions include the British Broadcasting Corporation, which was established by royal charter. The privatization programme that has been in operation in the UK since the 1980s has reduced the number of public corporations as their functions have been taken over by public companies and the government has divested itself, either wholly or substantially, of the statutory and financial commitment to the provision of public utilities (such as telecommunications, water, electricity, and gas). As these corporations have been privatized, regulatory agencies (*regulatory agency) have been established as watchdog bodies.

public document

A document concerned with a public matter, made under a public duty to inquire into all the circumstances recorded and meant for public inspection. Statements in public documents are admissible as an exception to the rule against *hearsay evidence.

public duties

Certain public officers, including magistrates, councillors, school and college governors, and members of health authorities, are entitled under the Employment Rights Act 1996 to time off work to fulfil their official duties. An employee entitled to time off work for public duties does not have a statutory right to be paid his periods of absence. No specific right to time off for jury service is given, but failure to attend jury service is contempt of court, therefore an implied right to tune off probably exists.

Date: 2015-01-29; view: 655