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Lord Chief Justice 1 page

(LCJ)

The chief judge of the *Queen's Bench Division of the High Court. He ranks second only to the Lord Chancellor in the judicial hierarchy. It was formerly the practice to appoint the Attorney General when a vacancy in the office occurred but this practice has now been abandoned and recent LCJs have been either Lords Justices of Appeal (*Lord Justice of Appeal) or *Lords of Appeal in Ordinary on appointment. The LCJ is ex officio a member of the Court of Appeal and is President of its Criminal Division.

Lord Justice of Appeal

(LJ)

An ordinary judge of the *Court of Appeal. The Lord (and Lady) Justices (LJJ) are normally appointed from those holding the post of a High Court judge or those possessing a ten-year High Court qualification under the Courts and Legal Services Act 1990. They become members of the Privy Council on appointment.

Lords, House of

See House of Lords.

Lords of Appeal in Ordinary

(Law Lords)

Up to 11 persons, holders of high judicial office or practising barristers of at least 15 years' standing, who are appointed to life peerages under the Appellate Jurisdiction Act 1876 to carry out the judicial functions of the *House of Lords.

loss leader

A product or service offered for sale by an organization at a loss in order to attract customers. The Competition Act 1998 prohibits *predatory pricing by dominant companies, as does Article 82 of the Treaty of Rome. Nondominant companies, however, are largely free to set their own resale pricing policy.

See also resale price maintenance.

loss of amenity

Loss or reduction of a claimant's mental or physical capacity to do the things he used to do, suffered as a result of personal injuries. In actions for personal injuries the claimant may recover damages for loss of the amenities of life, in addition to his financial losses and an award for *pain and suffering. Thus loss of the ability to play games or a musical instrument, if these were the claimant's hobbies, will be taken into account in fixing damages. The assessment is based on an objective view of the value of the loss of these amenities to the claimant.

loss of services

An action in tort (per quod servitium amisit) could formerly be brought against someone who had caused a parent to be deprived of the services of a child or a master to be deprived of the services of a menial servant. Both forms of action were abolished by the Administration of Justice Act 1982.

lost modern grant

A legal fiction by which a court will uphold a claim to an easement over another's land by presuming it to have been created by a formal *grant (i.e. a deed) that has been lost, if the claimant can show 20 years' uninterrupted exercise of the easement as of right (i.e. other than as a *licensee). The claim can be defeated only by proof that the grant could not have been made at any time during the period of use; for example, if the *servient tenement was at all relevant times owned by someone with no power to grant easements. The doctrine may only be pleaded if something prevents the plea of common law *prescription.



lottery

n.

A game of chance in which the participants buy numbered tickets and the prizes are distributed by drawing lots. Under the Lotteries and Amusements Act 1976, lotteries are usually illegal (See also gaming) unless they are: (1) on behalf of registered charities or sports, (2) restricted to members of a private club, (3) local lotteries; promoted in accordance with schemes approved by local authorities and registered with the Gaming Board, or (4) small lotteries that take place as part of an entertainment (e.g. in a bazaar or at a dance). The National Lottery was established by statute (the National Lottery Act 1993).

lump-sum award

The form in which damages are given by a court. The award covers both past losses (up to the time of judgment) and losses likely to be suffered in the future. The general rule is that only one award of damages may be made, unless the wrong is a continuing one (such as continuing trespass or nuisance). However, *interim payments can be ordered pending the final estimation of damages, and in actions for personal injuries in which the claimant may develop some serious disease or suffer some serious deterioration in his condition, *provisional damages may be given. This enables the claimant to come back for further damages at a future date if the disease or deterioration occurs. Settlements of personal injury cases out of court can include periodic payments as well as a lump sum as part of a *structured settlement.

Maastricht Treaty

The Treaty on European Union, which was signed at Maastricht (in the Netherlands) in February 1992 and came into force on 1 November 1993. The Treaty amended the founding treaties of the three *European Communities by establishing a *European Union based on these Communities. It required the defining and eventual implementation of a common foreign and security policy (CFSP), cooperation in justice and home affairs, and - under certain conditions - the introduction of a single currency (See European Monetary Union). It also introduced the principle of *subsidiarity and increased the powers of the *European Parliament. It has since been amended by the *Amsterdam Treaty.

machinery and plant

The machines, parts of machines, and all other apparatus used for carrying on a business, but excluding stock in trade. Capital expenditure on machinery and plant is eligible for *capital allowances.

McKenzie friend

(from the case McKenzie v McKenzie (1971))

A person who sits beside an unrepresented *litigant in court and assists him by prompting, taking notes, and quietly giving advice.

McNaghten Rules

M'Naghten Rules

(McNaghten Rules, M'Naghten Rules)

See insanity.

magistrate

n.

A *justice of the peace sitting in a *magistrates' court. Most magistrates are lay persons and have no formal legal qualifications: they receive no payment for their services but give their time voluntarily. There are also, however, *district judges (magistrates' court) (formerly called stipendiary magistrates) in London and other major cities.

magistrates' court

A court consisting of between two and seven *magistrates or a single *district judge (magistrates' court) (formerly called stipendiary magistrate) exercising the jurisdiction conferred by the Magistrates' Courts Act 1980 and other statutes. The principal function of magistrates' courts is to provide the forum in which all criminal prosecutions are initiated. In the case of an *indictable offence or an *offence triable either way for which the defendant elects *trial on indictment, the court sits as *examining justices to consider whether or not there is sufficient evidence to justify committing the defendant to the *Crown Court. For a *summary offence or an offence triable either way in which the defendant elects *summary trial, the court sits as a court of summary jurisdiction, i.e. as a criminal court of trial without a jury in which justices, assisted by the *clerk to the justices, decide all questions of law and fact.

Magistrates' courts also have a limited jurisdiction in civil matters relating to debt and matrimonial proceedings. Each magistrates' court sits for a petty-sessions area and its jurisdiction is generally confined to that area, although it may in some cases extend beyond. A magistrates' court may sit on any day of the year, including (if the court thinks fit) Christmas Day, Good Friday, or any Sunday, but in practice it is unusual for magistrates' courts to sit on public holidays or at weekends.

Magna Carta

The Great Charter of Runnymede, acceded to by King John in 1215 after armed rebellion by his barons. It guaranteed the freedom of the church, restricted taxes and fines, and promised justice to all. Confirmed frequently by subsequent feudal kings, it has since been largely repealed as having only symbolic significance.

main purpose rule

See repugnancy.

main residence

For the purposes of enfranchisement of a tenancy (*enfranchisement of tenancy), a dwelling in which the tenant has lived for at least the last three years or for periods amounting to three years in the last ten years. Whether or not the dwelling has in fact been his main residence is also considered in each case. For the purposes of *capital gains tax there is an exemption for gains on the disposal of owner-occupied homes. If an individual has more than one residence he may Dominate the one that he wishes to qualify for exemption.

maintenance

n.

The provision of food, clothing, and other basic necessities of life. A husband or wife is obliged to maintain his or her spouse (See failure to maintain). Parents are bound at common law to maintain their minor children, and since the Family Law Reform Act 1987 and the Child Support Act 1991 both parents, whether married or not, have a legal responsibility to support their children financially if they can afford to do so (See child support maintenance). Neglect or refusal to provide this maintenance is a criminal offence.

Before 1881 it was common for settlements to include a power for the trustees to maintain and educate minors. Since then, a statutory power has existed enabling trustees to pay money for the maintenance, education, or benefit of a minor; this power is subject to arty contrary provision in the settlement.

The obligation after a divorce of one spouse to support another or of a parent to support a child of the family is often referred to as maintenance; this is more correctly known as financial provision or *financial relief.

maintenance agreement

An agreement between spouses concerning their financial obligations to one another. Maintenance agreements are governed by the provisions of the Matrimonial Causes Act 1973. Any clause that attempts to deny the right of either spouse to apply to a court for financial relief will be void, and the county courts and High Court (and, to a more limited extent, the magistrates' courts) have wide powers to vary the terms of maintenance agreements (See also marriage settlement). When one party has died the other spouse may apply to the court, under the special provisions for *dependants, to have the terms of the agreement altered, but only if it was in writing.

maintenance and champerty

The promotion or support of litigation by a third party who has no legitimate interest in the proceedings (maintenance) and the support of litigation by a third party in return for a share of the proceeds (champerty, an aggravated form of maintenance). The old crimes and torts of maintenance and champerty were abolished by statute in 1967 but a champertous agreement may still be treated as contrary to public policy and so unlawful. An agreement by a lawyer to receive payment in the form of a share of the client's damages (if successful) is regarded as champertous in England, but a modified form of "no win, no fee" agreement was legalized by the Courts and Legal Services Act 1990, although it is authorized only for certain categories of cases (See conditional fee agreement).

maintenance order

A court order providing for payment of sums for the maintenance of a spouse or a child of the family. Strictly speaking the term now applies only to *maintenance agreements incorporated into a court order; orders in the magistrates' courts or High Court on the ground of *failure to maintain and orders in the divorce courts for maintenance are now called *financial provision orders. Power to order payment by direct debit or standing order was introduced by the Maintenance Enforcement Act 1991.

Spouses may try to evade their financial obligations to each other or their children by emigrating. In such cases the Domestic Proceedings and Magistrates' Courts Act 1978 and the Maintenance Orders (Reciprocal Enforcement) Act 1972 grant powers to obtain maintenance from emigrant spouses in certain designated ("convention") countries. For these purposes maintenance orders include any order providing for periodical payments to a person whom the payer is liable to maintain, including children of unmarried parents. The Child Support Act 1991 has greatly curtailed the power of the court to make, vary, or revise maintenance orders; application solely for *child support maintenance must now usually be made to the Child Support Agency rather than the court.

maintenance pending suit

A court order for temporary periodical payments during the hearing of a petition for divorce, nullity, or judicial separation.

majority (full age)

n.

The age of 18 years. The state of being below that age is a state of minority (See infant). The age of majority was originally 21 years, but was reduced to 18 by the Family Law Reform Act 1969. This majority applies for the purposes of any relevant legal rule and for the interpretation of any relevant statute, whenever it was made. It does not apply, however, to deeds, wills, and other private documents made before 1969, in which reference is made to majority or minority.

majority rule

The principle by which the majority of company members has the power to control the company through voting at a company meeting. There are various ways to safeguard the minority (See minority protection). The rule does not apply when the actions taken by those in control of the company (e.g. *directors) require more than a simple majority vote to authorize them; for example, altering the *articles of association, which requires approval by 75% of shareholders who attend a *general meeting and who are entitled to vote (See ordinary resolution; special resolution).

See also fraud on the minority.

majority verdict

The verdict of a *jury reached by a majority. The verdict need not be unanimous if there are no fewer than 11 jurors and 10 of them agree on the verdict or if there are 10 jurors and 9 of them agree on the verdict. The jury must be given at least two hours in which to reach a unanimous verdict and the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the majority verdict. Majority verdicts can be taken in both criminal and civil cases.

making off without payment

Leaving without paying for goods or services received and with the intention of avoiding payment, when payment on the spot is expected. This is now an offence punishable by up to two years' imprisonment, but it must be proved that the person who made off knew that payment on the spot was expected. It will usually cover such behaviour as walking out of a restaurant after having had a meal, without paying (even if there was originally no intention not to pay for the meal, and therefore no theft, and no *deception when the meal was ordered); taking a taxi and disappearing without paying; and collecting any items from a shop that has repaired or cleaned them, without paying.

See also shoplifting.

male issue

Direct descendants through the male line, e.g. sons and sons of sons (but not sons of daughters).

malfeasance

n.

An unlawful act.

Compare misfeasance; nonfeasance.

malice

n.

1. (in criminal law) A state of mind (See mens rea) usually taken to be equivalent to *intention or *recklessness: it does not require any hostile attitude. Malice is said to be transferred when someone intends to commit a crime against one person but in fact commits the same crime against someone else (for example, if he intends to shoot X but misses, and instead kills Y). Malice is universal (or general) when the accused has no particular victim in mind (for example, if he shoots into a crowd intending to kill anyone). In both cases this constitutes mens rea.

2. (in tort) A constituent element of certain torts. In the English law of tort, the general rule is that a malicious motive cannot make conduct unlawful if it would otherwise be lawful. For example, a right to take water from under one's own land can lawfully be exercised solely in order to cause damage to a neighbour. However, in some cases malice can be relevant. An action for *malicious prosecution requires proof that the prosecution was instigated maliciously, i.e. without reasonable and probable cause. In *defamation, a malicious motive invalidates the defences of fair comment and qualified privilege. Malice is also relevant to liability for *conspiracy to injure someone.

malice aforethought

The *mens rea (state of mind) required for a person to be guilty of murder. It is unnecessary for there to be any element of hostility (See malice) or for the intention to kill to be "forethought" (i.e. premeditated). The term covers (1) intention to kill (direct express malice aforethought), (2) intention to cause *grievous bodily harm (direct implied malice aforethought), (3) realizing while doing a particular act that death would almost certainly or very probably result (indirect express malice), and (4) realizing that grievous bodily harm would very probably result from the act, e.g. shooting at someone without intending to kill him, but realizing that he may at least suffer a serious injury (indirect implied malice). The prosecution must prove one of these four types of malice aforethought to secure a conviction of murder.

malicious damage

Formerly (before 1971), *criminal damage.

malicious falsehood

(injurious falsehood)

A false statement, made maliciously, that causes damage to another. The oldest forms of this tort are *slander of title and *slander of goods, but other false and malicious statements (e.g. that a businessman has ceased to trade) can also give rise to an action in tort. Usually actual damage must be proved. Malicious falsehood can overlap with *defamation, but mainly protects property and business interests.

malicious prosecution

The malicious institution of legal proceedings against a person. Malicious prosecution is only actionable in tort if the proceedings were initiated both maliciously and without reasonable and probable cause and they were unsuccessful. No one who has been convicted of a criminal charge can sue for malicious prosecution. Making unjustified threats of infringement of trade mark or other *intellectual property rights is also a statutory offence; the person accused of this can apply to the court for a *declaration that they do not infringe these rights.

malicious wounding

See wounding.

management order

A court order to appoint a manager for which certain tenants of flats have the right to apply if the court is satisfied that mismanagement has taken place. There are proposals for this right to be extended to tenants even where there is no mismanagement if at least two-thirds of the tenants in a block of flats wish to create a private limited company (an RTM company) to manage the block instead of the landlord.

managing director

A *director to whom management powers have been delegated, either absolutely or subject to supervision, by the other directors of the company under the terms of the articles of association. Managing directors are agents of the company and have wide authority to act on its behalf.

managing trustee

See custodian trustee.

mandate

n.

1. (in private law) An authority given by one person (the mandator) to another to take some course of action. A mandate is commonly revocable until acted upon and is terminated by the death of the mandator. A cheque is a mandate from the customer to his bank to pay the sum in question and to debit his account.

2. (in international law) The system by which dependent territories (such as the former German colonies in Africa) were placed under the supervision (but not the sovereignty) of mandatory powers by the League of Nations after World War

1. After World War II, all remaining mandated territories became trust territories (*trust territory) under the United Nations with the exception of South-West Africa (now Namibia) and a strategic trust area consisting of a number of Pacific Islands north of the equator, which were administered by the USA. The mandate over Namibia was terminated by the General Assembly of the UN in 1966, which placed the territory under the direct responsibility of the United Nations; it became an independent state in 1990. The Pacific Islands territories are also now independent states.

mandatory injunction

See injunction.

mandatory order

A *prerogative order from the High Court instructing an inferior tribunal, public official, corporation, etc., to perform a specified public duty relating to its responsibilities (See also judicial review); for example, an instruction to a statutory tribunal to hear a particular dispute. Formerly called mandamus (from Latin: we command), it was renamed in 1999 under Part 54.1 of the Civil Procedure Rules.

Manor of Northstead

See chiltern hundreds, stewardship of the.

mansion house

See principal mansion house.

manslaughter

n.

Homicide that does not amount to the crime of murder but is nevertheless neither lawful nor accidental. Manslaughter may be committed in several ways. It may arise if the accused is charged with murder and had the mens rea required for murder (See malice aforethought), but mitigating circumstances (*diminished responsibility, a *suicide pact, or *provocation) reduce the offence to manslaughter; this is known as voluntary manslaughter. It may also be committed when there was no mens rea for murder in one of two situations: (1) if the accused committed an act of *gross negligence or (2) if the act, although not negligent, was criminally illegal and also involved an element of danger to the victim. For example, it would be manslaughter to knock some bricks off a bridge into the path of a train (*criminal damage), killing the driver, even if one had no idea that there was a train in the area. Such cases are known as involuntary manslaughter. There are generally four types of involuntary manslaughter, although the distinction between them remains unclear: negligent manslaughter, constructive manslaughter, reckless manslaughter, and corporate manslaughter. The maximum punishment for manslaughter is life imprisonment, although this is rarely imposed; however, the Crime (Sentences) Act 1997 provides for a mandatory life sentence for those convicted of manslaughter for a second time (See repeat offender). Most cases of *causing death by dangerous driving and *causing death by careless driving are usually not charged as manslaughter but as special statutory offences under the Road Traffic Act 1991. However, in certain circumstances causing death by dangerous driving may amount to reckless manslaughter.

mansuetae naturae

See classification of animals.

Mareva injunction

See freezing injunction.

margin of appreciation

A concept created by the European Court of Human Rights to allow a certain amount of freedom for each signatory state to regulate its own activities and its application of the *European Convention on Human Rights without being subject to review by the Court. This freedom is not available to national courts when considering Convention issues arising within their own countries. However, in some cases the domestic courts, when reviewing decisions of public authorities under the Convention, may defer on democratic grounds to those elected bodies (See discretionary area of judgment).

marine insurance

A form of *insurance in which the insurer undertakes to indemnify the insured against loss of the ship (hull insurance), the cargo, any sums paid in freight (freight insurance), or any liability to a third party occurring during a sea voyage. A marine insurance contract may be extended to losses on inland waters or to risks on land that may be incidental to a sea voyage. The risks listed in marine insurance policies include *perils of the seas, fire, war perils, pirates, seizures, restraints, jettisons, and *barratry, and the cover may be for a particular voyage, or for a specified time, or both (See time policy). In marine insurance a distinction is made between an *actual total loss and a *constructive total loss; partial loss is subject to *average. The law relating to marine insurance is codified by the Marine Insurance Act 1906. Under this Act marine insurance contracts that are by way of being wagering or *gaming contracts are void; these include contracts in which the insured has no insurable interest as defined in the Act.

mariner's will

See privileged will.

marital breakdown

The deterioration of a marriage to such an extent that the court will grant a *divorce. The breakdown must be irretrievable. Under the Matrimonial Causes Act 1973 this can be evidenced only by *adultery, *desertion, *living apart, or *unreasonable behaviour.

marital privileges

Privileges protecting information given by one spouse to the other from disclosure in court. In general, the privilege has now been abolished in both civil and criminal proceedings. However, in civil proceedings a person may still not be compelled to disclose a statement made by his (or her) spouse with a view to effecting a reconciliation between them. Nor may someone be compelled to give evidence that could incriminate his (or her) spouse, subject to some exceptions.

maritime lien

See lien.

market

n.

A facility for the sale and purchase of goods. The concept of an available market is important in deciding the amount of damages for breach of contracts of sale of goods: it assumes that goods of the contract description can be sold at a market price fixed by supply and demand. The disappointed buyer or seller will usually, upon breach, make a substitute purchase or sale on the market and his damages will be the difference between the contract price and the market price.

See also market overt.

market maker

See stock exchange.

market overt

An open, public, and legally constituted market or fair. When goods were sold in market overt according to the usage of the market, the buyer acquired a good title to the goods, provided he bought them in good faith and without notice of any defect in the seller's title. This was one of the exceptions to the general principle of *nemo dat quod non habet, but it was abolished from 3 January 1995 by the Sale of Goods (Amendment) Act 1994.

market testing

Testing a particular service to see which supplier - in-house or external - offers the best combination of value for money and quality of service for the user. Launched in 1991, it affects all public services, including the health-care, magistrates', and prison services. Under the Local Government Act 1999, certain authorities are designated as *best value authorities, including the police and fire authorities. Under the Act, these authorities must have regard to economy, efficiency, and effectiveness when exercising their functions.

marriage

n.

1. The relationship between husband and wife.

2. A ceremony, civil or religious, that creates the legal status of husband and wife and the legal obligations arising from that status (See marriage ceremony). All marriages must be registered by an authorized marriage registrar. The minimum age for marriage is 16 with parental consent (18 without), and capacity to marry in general is governed by the law of *domicile of both parties before the marriage. Relationships within which marriage is prohibited are specified in the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986 (See prohibited degrees of relationships). Parties to a marriage must be respectively male and female as determined at birth (sex-change operations have no legal effect), must not be already married to someone else (See bigamy; polygamy), and must enter into the marriage freely.

See also marriage by certificate.

marriage articles

The clauses setting out the terms of a *marriage settlement.

marriage brokage contract

A contract in which one person undertakes, for financial gain, to arrange a marriage for another. Such contracts are void because they contravene *public policy.

marriage by certificate

Marriage authorized by a certificate issued by the Superintendent Registrar of Births, Deaths, and Marriages. All marriages other than those solemnized in the Church of England must be authorized by a certificate (or certificate and licence - See marriage by certificate and licence); marriages solemnized in the Church of England may be authorized either by a certificate or by a religious procedure (e.g. *banns, common licence. or special licence - See marriage by religious licence). Notice must be given of the intended marriage to the Superintendent Registrar of the district(s) in which the parties have lived for seven days previously, together with a declaration that there are no lawful obstacles to the marriage and that all necessary consents have been obtained. This notice is made public for 21 days, to give members of the public the opportunity to point out the existence of a lawful obstacle, after which the Registrar must issue a certificate. The marriage must take place within three months from the day the notice was entered in the notice book.


Date: 2015-01-29; view: 472


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