D

Daily Cause List See CAUSE LIST.

damage n. Loss or harm. Not all forms of damage give rise to a right of action; for
example, an occupier of land must put up with a reasonable amount of noise from
his neighbours (see NUISANCE), and the law generally gives no compensation to
relatives of an accident victim for grief or sorrow, except in the limited statutory
form of damages for bereavement (see FATAL ACCIDENTS). Damage for which there is
no remedy in law is known as damnum sine injuria. Conversely, a legal wrong may
not cause actual damage (injuria sine damno). If the wrong is actionable without
proof of damage (such as trespass to land) and no damage has occurred, the claimant
is entitled to nominal damages. Most torts, however, are only actionable if damage
has been caused (see NEGLIGENCE). In *Iibel and some forms of *slander, damage to
reputation is presumed.

damages pl. n. A sum of money awarded by a court as compensation for a tort or
a breach of contract. Damages are usually a *Iump-sum award (see also PROVISIONAL
DAMAGES). The general principle is that the claimant is entitled to full compensation
(restitutio in integrum) for his losses. Substantial damages are given when actual
damage has been caused, but nominal damages may be given for breach of
contract and for some torts (such as trespass) in which no damage has been caused,
in order to vindicate the claimant's rights. Damages may be *aggravated by the
circumstances of the wrong. In exceptional cases in tort (but never in contract)
*exemplary damages may be given to punish the defendant's wrongdoing. Damages
may be classified as unliquidated or liquidated. Liquidated damages are a sum
fixed in advance by the parties to a contract as the amount to be paid in the event
of a breach. They are recoverable provided that the sum fixed was a fair preestimate
of the likely consequences of a breach, but not if they were imposed as a
*penalty. Unliquidated damages are damages the amount of which is fixed by the
court, Damages may also be classified as *general and special damages.
The purpose of damages in tort is to put the claimant in the position he would
have been in if the tort had not been committed. Recovery is limited by the rules of
*remoteness of damage. The claimant must take reasonable steps to mitigate his
losses and so may be expected to undergo medical treatment for his injuries or to
seek alternative employment if his injuries prevent him from doing his former job.
Damages may also be reduced for the claimant's *contributory negligence. The
purpose of damages in contract is to put the claimant in the position he would have
been in if the contract had been performed, but, as in the case of damages in tort,
recovery is limited by rules relating to remoteness of damage. Again as in the case
of torts, the claimant is also under a duty to take all reasonable steps to mitigate his
losses and cannot claim compensation for any loss caused by his failure to do this. If,
for example, a hotel reservation is cancelled, the hotelier must make all reasonable
attempts to relet the room for the period in question or as much of it as possible.
Damages obtained as a result of a cause of action provided by the *Human Rights
Act 1998will be provided on the basis of the principles of *just satisfaction
developed by the European Court of Human Rights.

dangerous animals Animals the keeping or use of which is regulated by statute
because of their propensity to cause damage. Under the Dangerous Wild Animals Act
1976, the keeping of apes, bears, crocodiles, tigers, venomous snakes, and other
potentially dangerous animals requires a local-authority licence. The Dangerous Dogs
Act 1991 made the breeding, sale, or possession of dogs belonging to a type bred for
fighting (e.g.pit bull terriers) an offence, enabled similar restrictions to be imposed
in relation to other dogs presenting a danger to the public, and made it an offence
to let a dog get dangerously out of control in a public place. The use of *guard dogs
is strictly controlled by the Guard Dogs Act 1975. See also CLASSIFICATION OF ANIMALS.

dangerous driving The offence of driving a motor vehicle in such a way as to
fall far below the standard that would be expected of a competent and careful driver,
or in a manner that would be considered obviously dangerous by a competent and
careful driver. This offence is defined by the Road Traffic Act 1991and has replaced
the old offence of reckless driving (defined in the Road Traffic Act 1988). The
maximum penalty is a *fine at level 5 on the standard scale or six months'
imprisonment; *disqualification is compulsory. See also CAUSING DEATH BY DANGEROUS
DRIVING.

dangerous machinery An employer is under a duty to safeguard employees
from dangerous machinery. By the Factories Act 1961, all dangerous parts of
machinery must be securely fenced, unless they are in such a position or of such
construction that they are as safe as if they were securely fenced. The Mines and
Quarries Act 1954deals with the safety of machinery in mines and quarries, and the
EU Machinery Directive also lays down rules in this field. The Health and Safety at
Work Act 1974contains general provisions on *safety at work. See also DEFECTIVE
EQUIPMENT.

dangerous things See RYLANDS v FLETCHER, RULE IN.

database n. An organized collection of information held on a computer. Databases
are usually protected by *copyright in the UKunder the Copyright Designs and
Patents Act 1988 and the EU directive 96j9 (implemented by the Copyright and
Rights in Databases Regulations 1997). Copyright protects the structure, order,
arrangement on the page or screen, and other features of the database in addition to
the information in the database itself.

data protection Safeguards relating to personal data, i.e. personal information
about individuals that is stored on a computer and on "relevant manual filing
systems". The principles of data protection, the responsibilities of data controllers
(formerly data users under the Data Protection Act 1984), and the rights of data
subjects are governed by the Data Protection Act 1998,which came into force on 1
March 2000.
The 1998Act extends the operation of protection beyond computer storage,
replaces the system of registration with one of notification, and demands that the
level of description by data controllers under the new Act is more general than the
detailed coding system required under the Data Protection Act 1984.Under the 1998
Act, the eight principles of data protection are:
(1) The information to be contained in personal data shall be obtained, and personal
data shall be processed, fairly and lawfully.
(2)Personal data shall be held only for specified and lawful purposes and shall not be
used or disclosed in any manner incompatible with those purposes.
(3)Personal data held for any purpose shall be relevant to that purpose and not
excessive in relation to the purpose(s) for which it is used.
(4)Personal data shall be accurate and, where necessary, kept up to date.
(5) Personal data held for any purpose shall not be kept longer than necessary for
that purpose.
(6) Personal data shall be processed in accordance with the rights of data subjects.
(7) Appropriate technical and organizational measures shall be taken against
unauthorized and unlawful processing of personal data and against accidental loss or
destruction of, or damage to, personal data.
(8) Personal data shall not be transferred to a country or territory outside the
European Community area unless that country or territory ensures an adequate
level of protection for the rights and freedoms of data subjects in relation to the
processing of personal data.
Data controllers must now notify their processing of data (unless they are exempt)
with the Information Commissioner via the telephone, by requesting, completing,
and returning a notification form, or by obtaining such a form from the website
(http://www.dpr.gov.uk/notify/1.html). Notification is renewable annually; a data
controller who fails to notify his processing of data, or any changes that have been
made since notification, commits a criminal offence.
The Information Commissioner can seek information (via an information notice)
and ultimately take enforcement action (via an enforcement notice) against data
controllers for noncompliance with their full obligations under the 1998 Act.
Appeals against decisions of the Information Commissioner may be made to the
Data Protection Tribunal, which comprises a chairperson and two deputies (who
are legally qualified) and lay members (representing the interests of the data
controllers and the data subjects). There are other strict liability criminal offences
under the 1998Act other than non-notification. They include (1) obtaining, disclosing
(or bringing about the disclosure), or selling (or advertising for sale) personal data,
without consent of the data controller; (2) obtaining unauthorized access to data;
(3)asking another person to obtain access to data; and (4) failing to respond to an
information andjor enforcement notice.
Data subjects have considerable rights conferred on them under the 1998Act.
They include: (1) the right to find out what information is held about them; (2) the
right to seek a court order to rectify, block, erase, and destroy personal details if
these are inaccurate, contain expressions of opinion, or are based on inaccurate data;
(3) the right to prevent processing where such processing would cause substantial
unwarranted damage or substantial distress to themselves or anyone else; (4)the
right to prevent the processing of data for direct marketing; (5) the right to
compensation from a data controller for damage or damage and distress caused by
any breach of the 1998Act; and (6) the right to prevent some decisions about data
being made solely by automated means, where those decisions are likely to
significantly affect them.

dawn raid 1. An offer by a person or persons (see CONCERT PARTY) to buy a
substantial quantity of shares in a public company at above the market value, the
offer remaining open for a very short period (usually hours). Because of the speed
required smaller shareholders may have little opportunity to avail themselves of
the offer. Rules restrict the speed at which such acquisitions can be made. See
SARS. 2. An unannounced visit by officials of the European Commission or the UK
Office of Fair Trading investigating cartels or other breaches of the competition rules
under *Articles 81 and 82 of the Treaty of Rome or under the Competition Act 1998.

days of grace The three days that were added to the time of payment fixed by a
*bill of exchange not payable on demand before the Banking and Financial Dealings
Act 1971 came into force. A bill drawn on or after 16 January 1972is payable in all
cases on the last day of the time of payment fixed by the bill or, if that is a
nonbusiness day, on the succeeding business day.

day-training centre A place that provides social education and intensive probation supervision.
A court may order a person subject to a *community rehabilitation order to attend such a centre.

death n. See REGISTRATION OF DEATH.

death duties Taxes formerly charged on a person's property on his death. These
have now been replaced by *inheritance tax.

death penalty See CAPITAL PUNISHMENT.

de bene esse [Latin: of well-being] Denoting a course of action that is the best
that can be done in the present circumstances or in anticipation of a future event.
An example is obtaining a *deposition from a witness when there is a likelihood
that he will be unable to attend the court hearing.

debenture n. A document that acknowledges and contains the terms of a loan
(usually to a company). The loan may be unsecured (a naked debenture). More
usually, however, the debenture will be subject to a *charge and will contain the
terms of the charge (e.g. the right to appoint a *receiver or a *crystallization event).
Debentures may be issued to a single creditor or in a series to several creditors in
order to raise finance for a company. In the case of the latter, a trust may be
created and contained within the debenture in favour of such creditors. This enables
the company to appoint a trustee for debenture holders to ensure that the financial
activities of the company are managed in the interests of the group of creditors.
Finance raised by the issue of debentures is known as *loan capital. This is
contrasted with share *capital, the holders of which are *company members.

de bonis asportatis [Latin: of goods carried away] One form of trespass to goods
(see TRESPASS), not distinguished in modern law from other direct interferences with
the possession of goods.

de bonis non administratis [Latin: of unadministered goods] A grant of *letters
of administration of the estate of a deceased person when administration has
previously been granted to someone who has himself died before completing the
administration of the estate leaving no executor, so that the chain of executorship is
broken.

debt n. 1. A sum of money owed by one person or group to another. 2. The
obligation to pay a sum of money owed.

debt adjusting See ANCILLARY CREDIT BUSINESS.

debt collecting See ANCILLARY CREDIT BUSINESS.

debtor n. 1. One who owes a debt. See also JUDGMENT DEBTOR. 2. (under the
Consumer Credit Act 1974) The individual receiving credit under a *consumer-credit
agreement or the person to whom his rights and duties under the agreement have
passed by assignment or operation of law.

debtor-creditor agreement A *consumer-credit agreement regulated by the
Consumer Credit Act 1974.It may be (1) a *restricted-use credit agreement to finance
a transaction between the debtor and a supplier in which there are no arrangements
between the creditor and the supplier (e.g.when a loan is paid by the creditor direct
to a dealer who is to supply the debtor); (2)a restricted-use credit agreement to
refinance any existing indebtedness of the debtor's to the creditor or any other
person; or (3)an unrestricted-use credit agreement (e.g.a straight loan of money)
that is not made by the creditor under arrangements with a supplier in the
knowledge that the credit is to be used to finance a transaction between the debtor
and the supplier.

debtor-creditor-supplier agreement A *consumer-credit agreement regulated
by the Consumer Credit Act 1974. It may be (1) a *restricted-use credit agreement to
finance a transaction between the debtor and the creditor, which mayor may not
form part of that agreement (e.g.a purchase of goods on credit); (2)a restricted-use
credit agreement to finance a transaction between the debtor and a supplier, made
by the creditor and involving arrangements between himself and the supplier; or (3)
an unrestricted-use credit agreement that is made by the creditor under pre-existing
arrangements between himself and a supplier in the knowledge that the credit is to
be used to finance a transaction between the debtor and the supplier.

deceit n. A tort that is committed when someone knowingly or recklessly makes a
false statement of fact intending that it should be acted on by someone else and
that person does act on the false statement and thereby suffers damage. See FRAUD.

deception n. A false representation, by words or conduct, of a matter of fact
(including the existence of an intention) or law that is made deliberately or recklessly
to another person. Deception itself is not a crime, but there are six imprisonable
crimes in which deception is involved: (1) Obtaining property. (2)Obtaining an
overdraft, an insurance policy, an annuity contract, or the opportunity to earn
money (or more money) in a job or to win money by betting. These two offences are
punishable by up to ten years' imprisonment. (3)Obtaining any services (e.g. of a
driver or typist or the hiring of a car). (4)Securing the remission of all or part of an
existing liability to make payment (whether one's own or another's) with intent to
make permanent default in whole or in part. (5) Causing someone to wait for or
forego a debt owing to him. (6) Obtaining an exemption from or abatement of
liability to pay for something (e.g. obtaining free or cheap travel by falsely pretending
to be a senior citizen). It is not an offence, however, to deceive someone in any other
circumstances, provided there is no element of *forgery or *false accounting.

decisions of the EU See COMMUNITY LEGISLATION.

declaration n. 1. (in the law of evidence) An oral or written statement not made
on oath. The term is often applied to certain types of out-of-court statement that
are admissible as an exception to the rule against *hearsay evidence; for example,
*declaration against interest, *declaration concerning pedigree, *declaration
concerning public or general rights, and *declaration in course of duty. See also
STATUTORY DECLARATION. 2. A discretionary remedy involving a bare finding by the
High Court as to a person's legal status, rights, or obligations. A declaration cannot
be directly enforced, but is frequently sought both in private law (e.g. to answer a
question as to nationality or rights under a will) and in public law (e.g. to test a
claim that delegated legislation or the decision of some inferior court, tribunal, or
administrative authority is *ultra Vires). In both public and private law the applicant
must show standing, i.e. that the issue affects him directly. Compare QUASHING ORDER.
See also JUDICIAL REVIEW.

declaration against interest A *declaration by a person who has subsequently
died which he knew, when he made it, would be against his pecuniary or proprietary
interest. It may be tendered to the court as an exception to the rule against
*hearsay evidence.

declaration concerning pedigree A *declaration made by a person who has
subsequently died, or to be inferred from family conduct, concerning a disputed
pedigree of a blood relation or the spouse of a blood relation. The declaration must
have been made before the dispute in which it is tendered as evidence had arisen.

declaration concerning public or general rights A *declaration made by a
person who has subsequently died concerning the reputed existence of a public or
general right. Public rights affect everyone (e.g.a public *right of way) while
general rights affect a class of people (e.g. a right of *common).

declaration in course of duty A *declaration by a person who has subsequently
died made while pursuing a duty to record or report his acts.

declaration of incompatibility See HUMAN RIGHTS ACT.

declaration of intention See OFFER.

declaration of trust A statement indicating that property is to be held on trust.
No specific words are necessary, as long as the intention to declare a trust is made
clear. Once a declaration of trust is made, the person intended to be trustee still
holds the property but is not entitled to hold it for his own benefit. A declaration of
a trust where the trust property is land is subject to certain formalities, detailed in
the Law of Property Act 1925 (s.53).

declaratory judgment A judgment that merely states the court's opinion on a
question of law or declares the rights of the parties, without normally including any
provision for enforcement. A claim for declaration may, however, be combined with
one for some substantive relief, such as damages.

declaratory theory The proposition that a state has capacity (and personality) in
international law as soon as it exists in fact (that is, when it becomes competent in
municipal law). This capacity is generated spontaneously from the assertion by the
community that it is a judicial entity. When socially organized, the new state is
internally legally organized, and hence competent to act in such a way as to engage
itself in international responsibility. Thus, according to this theory, *recognition
does not create any state that did not already exist. See INTERNATIONAL LEGAL
PERSONALITY. Compare CONSTITUTIVE THEORY.

decompilation (reverse engineering) n. The process of taking computer
*software apart. Under EU directive 91/250, computer software is protected by
*copyright throughout the ED. However, a very limited right to decompilation is
given in that directive for the defined purpose of writing an interoperable program,
under certain very strict conditions. Any provision in a contract to exclude this
limited right will be void. In the UK this directive is implemented by the Copyright
(Computer Programs) Regulations 1992.

decree n. 1. A law. 2. A court order. See also DECREE ABSOLUTE; DECREE NISI.

decree absolute A decree of divorce, nullity, or presumption of death that brings
a marriage to a legal end, enabling the parties to remarry. It is usually issued six
weeks after the *decree nisi (unless there are exceptional reasons why it should be
given sooner). A list of decrees absolute is kept at the Divorce Registry and access to
it is open to the public.

decree nisi A conditional decree of divorce, nullity, or presumption of death. For
most purposes the parties to the marriage are still married until the decree is made
absolute. During the period between decree nisi and decree absolute the Queen's
Proctor or any member of the public may intervene to prevent the decree being
made absolute and the decree may be rescinded if obtained by fraud.

deductions pl. n. (in employment law) Sums deducted from an employee's wages.
The Employment Rights Act 1996 provides strict rules on what can be deducted
from wages. Permitted deductions include those for income tax, national insurance,
and pension contributions (for employees who have agreed to be part of an
employer's pension scheme). Deductions are also allowed when there has been an
overpayment of wages or expenses in the past, when there has been a strike and
wages are withheld, or when there is a court order, such as an order from the Child
Support Agency or a court attachment of earnings order. There are special rules for
those in retail employment. These provide, for example, that deductions of up to
10%may be made from gross wages for cash shortages or stock deficiencies.
deed n. A written document that must make it clear on its face that it is intended
to be a deed and validly executed as a deed. Before 31 July 1990, all deeds required a
seal in order to be validly executed, but this requirement was abolished by the Law
of Property (Miscellaneous Provisions) Act 1989. A deed executed since that date by
an individual requires only that it must be signed by its maker in the presence of a
witness, or at the maker's direction and in the presence of two witnesses, and
delivered. Deeds executed by companies require before delivery the signature of a
director and secretary, or two directors, of the company; alternatively, if the company
has a seal, the deed may be executed by affixing the company seal. If the deed is a
contractual document, it is referred to as a specialty.A promise contained in a deed
is called a covenant and is binding even if not supported by *consideration.
Covenants may be either express or implied. A deed normally takes effect on
delivery; actual delivery constitutes handing it to the other party; constructive
delivery involved (in strict theory) touching the seal with the finger, and saying
words such as "I deliver this as my act and deed". If a deed is delivered but is not to
become operative until a future date or until some condition has been fulfilled, it is
called an escrow. The recitals of a deed are those parts that merely declare facts
and do not effect any of the substance of the transaction. They are usually inserted
to explain the reason for the transaction. The operative part of a deed is the part
that actually effects the objects of the deed, as by transferring land. The testatum
(or witnessing part) constitutes the opening words of the operative part, i.e. "Now
this deed witnesseth as follows". The premises are the words in the operative part
that describe the parties and the transaction involved. The parcels are the words in
the premises that describe the property involved. The testimonium is the
concluding part, beginning "In witness whereof", and containing the signatures of
the parties and witnesses. The locus sigilli is the position indicated for placing the
seal. When a deed refers to itself as "these presents", "presents" means present
statements. The advantage of a deed over an ordinary contract is that the limitation
period is 12 rather than 6 years (see LIMITATION OF ACTIONS) and no *consideration is
required for the deed to be enforceable. See also DEED POLl..

deed of arrangement A written agreement between a debtor and his creditors,
when no *bankruptcy order has been made, arranging the debtor's affairs either for
the benefit of the creditors generally or, when the debtor is insolvent, for the
benefit of at least three of the creditors. A deed of arrangement is regulated by
statute and must be registered with the Department of Trade and Industry within
seven days. It may take a number of different forms: it may be a *composition, an
*assignment of the debtor's property to a trustee for the benefit of his creditors, or
an agreement to wind up the debtor's business in such a way as to pay his debts. The
debtor usually agrees to such an arrangement in order to avoid bankruptcy. A
similar arrangement can be agreed after a bankruptcy order is made, but this is
regulated in a different way (see VOLUNTARY ARRANGEMENT).

deed of covenant A *deed containing an undertaking to pay an agreed amount
over an agreed period. Certain tax advantages could be obtained through the use of
covenants, particularly in the case of four-year covenants in favour of charities. This
was superseded by *gift aid in April 2000.

deed of gift A *deed conveying property from one person (the donor) to another
(the donee) when the donee gives no *consideration in return. The donee can
enforce a deed of gift against the donor. Gifts made other than by deed are not
generally enforceable (but seePART PERFORMANCE).

deed poll A *deed to which there is only one party; for example, one declaring a
*change of name.

deemed adj. Supposed. In the construction of some documents (particularly
statutes) an artificial construction is given to a word or phrase that ordinarily would
not be so construed, in order to clarify any doubt or as a convenient form of
drafting shorthand.

de facto [Latin: in fact] Existing as a matter of fact rather than of right. The
government may, for example, recognize a foreign government de facto if it is
actually in control of a country even though it has no legal right to rule (see
RECOGNITION). Compare DE JURE.

defamation n. The *publication of a statement about a person that tends to lower
his reputation in the opinion of right-thinking members of the community or to
make them shun or avoid him. Defamation is usually in words, but pictures,
gestures, and other acts can be defamatory. In English law, a distinction is made
between defamation in permanent form (see LIBEL) and defamation not in permanent
form (see SLANDER). This distinction is not made in Scotland. The remedies in tort for
defamation are damages and injunction.
In English law, the basis of the tort is injury to reputation, so it must be proved
that the statement was communicated to someone other than the person defamed.
In Scottish law, defamation includes injury to the feelings of the person defamed as
well as injury to reputation, so an action can be brought when a statement is
communicated only to the person defamed. If the statement is not obviously
defamatory, the claimant must show that it would be understood in a defamatory
sense (see INNUENDO). It is not necessary to prove that the defendant intended to refer
to the claimant. The test is whether reasonable people would think the statement
referred to him, but the defendant may escape liability for unintentional
defamation by making an offer of amends (see APOLOGY). Other defences are
*justification, *fair comment, *absolute privilege, and *qualified privilege.
All those involved in the publication of a defamatory statement, such as printers,
publishers, and broadcasting companies, are liable and every repetition of a
defamatory statement is a fresh publication, giving rise to a new cause of action. A
mere distributor of a book, newspaper, etc., is not liable if he did not know and had
no reason to know of its defamatory contents. The Defamation Act 1996 put this
defence on a statutory footing and generally speeded up procedures for defamation
litigation, but it did not change the rule that the jury and not the judge decides on
the damages in defamation cases.

default n. Failure to do something required by law, usually failure to comply with
mandatory rules of procedure. If a defendant in civil proceedings is in default (e.g.
by failing to file a defence), the claimant may obtain judgment in default. If the
claimant is in default, the defendant may apply to the court to dismiss the action.
default notice A notice that must be served on a contract breaker before taking
action in consequence of his breach. Under the Consumer Credit Act 1974a default
notice must be served on a debtor or hirer in breach of a regulated agreement
before the creditor or owner is entitled to terminate the agreement; to demand
earlier payment of any sum; to recover possession of any goods or land; to treat any
right conferred on the debtor or hirer by the agreement as terminated, restricted,
or deferred; or to enforce any security. The notice must specify the nature of the
breach, what action (if any) is required to remedy it, and the date before which that
action is to be taken. If the breach is not capable of remedy, the notice must specify
the sum (if any) required in compensation and the date before which it is to be paid.

default summons Formerly, a summons used to initiate all proceedings in the
county courts when the only relief claimed was the payment of money. Under the
*Civil Procedure Rules, such claims are now made by *claim forms.

defect n. 1. A fault or failing in a thing. The defect may be obvious (a patent
defect) or it may not be apparent at first (a latent defect). In a sale of goods, the
buyer usually has a legal remedy against a professional seller if the goods have a
latent defect. If there is a patent defect he usually has no such remedy if he had an
opportunity to inspect the goods before purchase. See also SATISFACTORY QUALITY.
2. (defect in a product) A fault in a product as defined in the Consumer Protection
Act 1987. A defect exists in products under the Act when the safety of the products
is not what people generally are entitled to expect. In determining what people are
entitled to expect, reference should be made to the way in which the goods are
marked, any warnings issued with them, and the time of supply. The Act
implements EU directive 85/374 on *products liability.

defective equipment An employer's duty to provide his employees with a safe
system of work, so far as is reasonably practicable, includes the provision and
maintenance of safe tools and equipment (including materials) for the job. The
employer is liable to an employee injured by a defect in the equipment he provides,
even if the defect was due to the fault of some third party, such as the
manufacturer of the equipment. See also SAFETY AT WORK.

defective premises Liability for defects in the construction of buildings can
arise both at common law, in contract and tort, and by statute. In addition to any
liability they may incur for breach of contract, builders, architects, surveyors, etc.,
are liable in tort on ordinary principles for *negligence and may also be in breach of
statutory duties; for example, the duty imposed by the Defective Premises Act 1972,
in respect of work connected with the provision of a dwelling, to see that the
dwelling will be fit for habitation. A landlord who is responsible for repairs, or who
has reserved the right to enter and carry out repairs, may be liable for damage
caused by failure to repair not only to his tenants, but also to third parties who
could be expected to be affected by the defects. For the liability of occupiers of
premises, see OCCUPIER'S LIABILITY.

defective products See PRODUCTS LIABILITY.

defence n. 1. The response by a defendant to service of a claim. Once a claim form
or particulars of claim have been served on the defendant, he is under an obligation
to respond. If he does not file a defence, judgment in default will be entered against
him. Generally, a defence must be filed within 14 days of service of the claim. The
defendant may obtain an extension of a further 14 days by filing an
*acknowledgment of service. 2. In civil and criminal proceedings, an issue of law or
fact that, if determined in favour of the defendant, will relieve him of liability
wholly or in part. See also GENERAL DEFENCES.

defence statement A document setting out the accused's *defence in criminal
proceedings for initial hearings before trial. The Criminal Procedure and
Investigations Act 1996 provides that, from 1 April 1997, the accused need not make a
defence statement at all; however, an adverse inference may be drawn from a
failure to give a statement in the *Crown Court. The statement should set out the
nature of the defence in general terms (for example, mistaken identification, alibi),
indicate the matters on which the accused takes issue with the prosecution, and set
out in respect of each matter the reason why the accused takes issue. It must not
contain any inconsistent defences and should not be different from the defence to
be put forward at trial.

defendant n. A person against whom court proceedings are brought. Compare
CLAIMANT.

deferred debt In bankruptcy proceedings, a debt that by statute is not paid until
all other debts have been paid in full.

deferred sentence A *sentence imposed by a magistrates' court or the Crown
Court after a period of up to six months from conviction for the offence. The court
may postpone sentencing, if the convicted person agrees, if it wishes to assess any
change in the offender's conduct or circumstances during that time.

defrauding n. Any act that deprives someone of something that is his or to which
he might be entitled or that injures someone in relation to any proprietary right. It
is a crime (a form of *conspiracy at common law) to conspire to defraud someone.
See also CHEAT; DISHONESTY.

degrading treatment or punishment Treatment that arouses in the victim a
feeling or fear, anguish, and inferiority capable of humiliating and debasing the
victim and possibly breaking his physical or moral resistance. The prohibition on
degrading treatment or punishment as set out in Article 3 of the European
Convention on Human Rights is now part of UKlaw as a consequence of the
*Human Rights Act 1998. This right is an *absolute right; such treatment can never
be justified as being in the public interest, no matter how great that public interest
might be. Public authorities have a limited but positive duty to protect this right
from interference by third parties.

de jure [Latin] As a matter of legal right. See RECOGNITION. Compare DE FACTO.

del credere agent [Italian: of trust] See AGENT.

delegated legislation (subordinate legislation) Legislation made under powers
conferred by an Act of Parliament (an enabling statute, often called the parent Act).
The bulk of delegated legislation is governmental: it consists mainly of *Orders in
Council and instruments of various names (e.g. orders, regulations, rules, directions,
and schemes) made by ministers (see alsoGOVERNMENT CIRCULARS). Its primary use is to
supplement Acts of Parliament by prescribing the detailed and technical rules
required for their operation; unlike an Act, it has the advantage that it can be made
(and later amended if necessary) without taking up parliamentary time. Delegated
legislation is also made by a variety of bodies outside central government, examples
being *byelaws, the *Rules of the Supreme Court, and the codes of conduct of
certain professional bodies (see also ORDERS OF COUNCIL).
Most delegated legislation (byelaws are the main exception) is subject to some
degree of parliamentary control, which may take any of three principal forms: (1) a
simple requirement that it be laid before Parliament after being made (thus
ensuring that members become aware of its existence but affording them no special
method or opportunity of questioning its substance); (2)a provision that it be laid
and, for a specified period, liable to annulment by a resolution of either House
(negative resolution procedure); or (3)a provision that it be laid and either shall
not take effect until approved by resolutions of both Houses or shall cease to have
effect unless approved within a specified period (affirmative resolution procedure).
In the case of purely financial instruments, any provision for a negative or
affirmative resolution refers to the House of Commons alone. (See alsoSTATUTORY
INSTRUMENT; SPECIAL PROCEDURE ORDERS.)
All delegated legislation is subject to judicial control under the doctrine of *ultra
vires. Delegated legislation is interpreted in the light of the parent Act, so particular
words are presumed to be used in the same sense as in that Act. This rule apart, it is
governed by the same principles as those governing the *interpretation of statutes.
See also SUBDELEGATED LEGISLATION.

delegation n. 1. The grant of authority to a person to act on behalf of one or
more others, for agreed purposes. 2. See VICARIOUS LIABILITY.

delegatus non potest delegare [Latin] A person to whom something has been
delegated cannot delegate further, i.e. one to whom powers and duties have been
entrusted cannot entrust them to another. The rule applies particularly when the
delegate possesses some special skill in the performance of the duties delegated, or
when personal trust is involved. The rule does not apply if there is express or
implied authority to delegate. Trustees, for example, have always been entitled to
employ agents when this was necessary (for example, they can employ solicitors to
do legal work). Since 1925,a trustee may delegate any business of the trust to an
agent provided that he does so in good faith. Further, since 1971, any trustee may
delegate, for a period not exceeding one year, any trusts, powers, or discretions he
has; this delegation may be repeated.

de lege ferenda [Latin: of (or concerning) the law that is to come into force] A
phrase used to indicate that a proposition relates to what the law ought to be or
may in the future be.

de lege lata [Latin: of (or concerning) the law that is in force] A phrase used to
indicate that a proposition relates to the law as it is.

delivery n. The transfer of possession of property from one person to another.
Under the Sale of Goods Act 1979, a seller delivers goods to a buyer if he delivers
them physically, if he makes symbolic delivery by delivering the document of title
to them (e.g.a *bill of lading) or other means of control over them (e.g. the keys of a
warehouse in which they are stored), or if a third party who is holding them
acknowledges that he now holds them for the buyer. In constructive delivery, the
seller agrees that he holds the goods on behalf of the buyer or the buyer has
possession of the goods under a hire-purchase agreement and becomes owner on
making the final payment.

demanding with menaces See BLACKMAIL.

de minimis non curat lex [Latin] The law does not take account of trifles. It will
not, for example, award damages for a trifling nuisance. The de minimis rule applies
in a number of other areas, including EU *competition law.

demise (in land law) 1. vb. To grant a lease. 2. n. The lease itself.

demise of the Crown The death of the sovereign. The Crown, in fact, never dies:
the accession of the new sovereign takes place at the moment of the demise, and
there is no interregnum.

demonstrative legacy See LEGACY.

demurrage n. Liquidated *damages payable under a charterparty at a specified
daily rate for any days (demurrage days) required for completing the loading or
discharging of cargo after the *lay days have expired. The word is also commonly
used to denote the unliquidated damages to which the shipowner is entitled if,
when no lay days are specified, the ship is detained for loading or unloading beyond
a reasonable time.

departure n. The introduction of a new allegation of fact or the raising of a new
ground or claim inconsistent with the party's earlier claim. Departure is not
permitted by the Civil Procedure Rules, but it does not prevent the *amendment of
documents used in litigation provided that the amended documents do not contain
any departure. The principal effect of the rule is to prevent a claimant from setting
up in his *reply a new claim that is inconsistent with the cause of action alleged in
the particulars of claim.

dependant n. A person who relies on someone else for maintenance or financial
support. On the death of the latter, the courts now have wide discretionary powers
to award financial provision to dependants out of the estate of the deceased. The list
of dependants includes not only spouses, former spouses, children, and children of
the family, but anyone (e.g. a lover, housekeeper, or servant) who was being
maintained to some extent by the deceased immediately before his death. See also
REASONABLE FINANCIAL PROVISION.

dependent relative revocation The doctrine that if a testator revokes his will
in the mistaken belief that a particular result will ensue, or that a particular set of
facts exists when it does not, then the revoked will may still hold good. For example,
if a testator destroys his will, in the mistaken belief that thereby an earlier will
would be revived, the destroyed will will be held not to have been revoked.
Similarly, a testator may revoke his will, intending to make another; the revoked
will holds good if the testator subsequently makes no new will or an invalid one.

dependent state A member of the community of states with qualified or limited
status. Such states possess no separate statehood or sovereignty: it is the parent state
alone that possesses *internationallegal personality and has the capacity to exercise
international rights and duties.

dependent territory A territory (e.g.a colony) the government of which is to
some extent the legal responsibility of the government of another territory.

deportation n. The removal from a state of a person whose initial entry into that
state was illegal (compare EXPULSION). In the UK this is authorized by the Immigration
Act 1971 as amended by the Immigration and Asylum Act 1999in the case of any
person who does not have the right of abode there (see IMMIGRATION). He may be
ordered to leave the country in four circumstances: if he has overstayed or broken a
condition attached to his permission to stay; if another person to whose family he
belongs is deported; if (he being 17 or over) a court recommends deportation on his
conviction of an offence punishable with imprisonment; or if the Secretary of State
thinks his deportation to be for the public good. The Act enables appeals to be made
against deportation orders. Normally, they are either direct to the *Immigration
Appeal Tribunal or to that tribunal after a preliminary appeal to an adjudicator. The
Immigration Act 1988 restricts this right of appeal in the case of those who have
failed to observe a condition or limitation on their leave to enter the UK. The
Immigration and Asylum Act 1999gives additional powers to order those present in
the UKwithout permission to leave, either when they have overstayed or obtained
leave to remain by deception or when they were never granted leave to remain. It
also provides for the removal of asylum claimants under standing arrangements
with other EU member states.

depose vb. To make a *deposition or other written statement on oath.

deposit n. 1. A sum paid by one party to a contract to the other party as a
guarantee that the first party will carry out the terms of the contract. The first
party will forfeit the sum in question if he does not carry out the terms, even if the
sum is in excess of the other party's loss. If the contract is completed without
dispute the deposit becomes part payment. In land law a deposit is usually made by
a purchaser when exchanging contracts (see EXCHANGE OF CONTRACTS) for the purchase
of land. The contract stipulates whether the recipient (usually the vendor's solicitor
or estate agent) holds the deposit as agent for the vendor, in which case the vendor
can use the money pending *completion of the transaction, or as stakeholder, in
which case the funds must remain in the stakeholder's account until completion or
(in the case of a dispute) a court has decided who should have it. If the contract is
rescinded the purchaser is entitled to the return of his deposit. 2. The placing of
title deeds with a mortgagee of unregistered land as security for the debt. A
mortgagee not protected by deposit of title deeds (such as a second mortgagee of
unregistered land) registers his mortgage (see REGISTRATION OF ENCUMBRANCES) and is
then entitled to receive the title deeds from prior mortgagees after the redemption
of their security. All mortgages of registered land must be registered to be binding
on purchases of the land.

deposition n. A statement made on oath before a magistrate or court official by a
witness and usually recorded in writing. In criminal cases depositions are taken
during committal proceedings before the magistrates' court (see COMMITTAL FOR
TRIAL). The usual procedure is that the prosecution witnesses give their evidence on
oath and may be cross-examined by the accused or his legal advisers. The statement
is then written down by the magistrates' clerk, read out to the witness in the
presence of the accused, signed by the witness, and certified by the examining
magistrate. The accused must be present throughout and be allowed to crossexamine.
If these conditions are not fulfilled, both the committal proceedings and
the subsequent trial will be null and void. There are special arrangements for
depositions to be written down out of court if a witness is dangerously ill and
cannot come to court, and also for depositions by children. Depositions made in
committal proceedings are accepted as evidence at the trial if the witness is dead or
insane, unfit to travel because of illness, or is being kept out of the way by the
accused; they are also accepted to show a discrepancy between the deposition
evidence and evidence given later on orally at the trial.
In civil cases the court may order an examiner of the court to take depositions
from any witnesses who are (for example) ill or likely to be abroad at the time of
the hearing. At the taking of the deposition the witness is examined and crossexamined
in the usual way, and the examiner notes any objection to admissibility
that may be raised. The deposition is not admissible at the trial without the consent
of the party against whom it is given, unless the witness is still unavailable. See also
LETTER OF REQUEST.

deprave vb. To make morally bad. The term is used particularly in relation to the
effect of *obscene publications. A person is considered to have been depraved if his
mind is influenced in an immoral way, even though this does not necessarily result
in any act of depravity.

derecognition n. A process whereby notice is given to terminate union
recognition in an establishment or company. Employees continue to have the right
to belong to a trade union, but the employer no longer negotiates collectively: terms
and conditions previously the subject of *collective bargaining are negotiated
individually or with groups of employees unconnected with trade unions, resulting
in a personal contract. See also RECOGNITION PROCEDURE.

deregulation n. 1. The controls imposed by governments on the operation of
markets, such as is allowed for under the Deregulation and Contracting Out Act
1990. 2. A movement in the EU to reduce rules at Community level that could be
better set at national level (see SUBSIDIARITY).

derivative action Civil proceedings brought by a minority of company members
in their own names seeking a remedy for the company in respect of a wrong done
to it. Such proceedings are exceptional; usually an action should be brought by the
company (the injured party) in its own name. A derivative action will only be
permitted when a serious wrong to the company is involved, which cannot be
ratified by an ordinary resolution of company members (e.g. an *ultra vires or illegal
act or a case of *fraud on the minority) and the majority of members will not
sanction an action in the company's name. Compare REPRESENTATIVE ACTION.

derivative deed A deed that is supplemental to another, whose scope it alters,
confirms, or extends. An example is a deed admitting a new partner to a firm on
terms set out in a principal deed executed by the original partners.

derivative title A claim of sovereignty over a territory, that territory having
previously belonged to another sovereign state. Derivation of title to territory
involves the transfer (*cession) of title from one sovereign state to another.

derivative trust See SUB-TRUST.

derogation n. Lessening or restriction of the authority, strength, or power of a
law, right, or obligation. Specifically: 1. (in the European Convention on Human
Rights) A provision that enables a signatory state to avoid the obligations of some
but not all of the substantive provisions of the rest of the Convention. This
procedure is provided by Article 15 of the Convention and is available in time of
war or other public emergency threatening the life of the nation. Although Article
15 is not brought into domestic law by the *Human Rights Act 1998,the Act
exempts public authorities from compliance from any articles (or parts of articles)
where a derogation is in place. 2. (in EU law) An exemption clause that permits a
member state of the EU to avoid a certain directive or regulation. Sometimes
member states are allowed a longer than normal time to implement an EU
directive.

desertion n. 1. The failure by a husband or wife to cohabit with his or her spouse.
Desertion usually takes the form of physically leaving the home, but this is not
essential: there may be desertion although both parties live under the same roof, if
all elements of a shared life (e.g.sexual intercourse, eating meals together) have
ceased. Desertion must be a unilateral act carried out against the wishes of the other
spouse, with the intention of bringing married life to an end (animus deserendi). If it
is continuous for more than two years, it may be evidence that the marriage has
irretrievably broken down and entitle the deserted spouse to a decree of *divorce.
See also CONSTRUCTIVE DESERTION. 2. An offence against service law committed by a
member of the armed forces who leaves or fails to attend at his unit, ship, or place
of duty. He must either intend at the time to remain permanently absent from duty
without lawful authority or subsequently form that intention. One who absents
himself without leave to avoid service overseas or service before the enemy is also
guilty of desertion.

design right Legal protection for the external appearance of an article, including
its shape, configuration, pattern, or ornament. A design right is distinct from a
*patent, which protects the internal workings of the article. The right entitles the
owner to prevent others making articles to the same design. Design rights in the UK
are either registered (see REGISTERED DESIGN) or unregistered. Registered designs must
have aesthetic appeal; they are protected under the Registered Designs Act 1949 as
amended and last for a maximum of 25 years provided renewal fees are paid.
Unregistered designs, which came into existence in 1989, are protected under the
Copyright, Designs and Patents Act 1988. Unregistered design protection is for only
15 years. Design protection is not available for parts of articles that simply provide a
fit or match to another article, such as a car-body panel.

de son tort See EXECUTOR DE SON TORT; TRUSTEE DE SON TORT.

detention n. Depriving a person of his liberty against his will following *arrest.
The Police and Criminal Evidence Act 1984 closely regulates police powers of
detention and detained persons' rights. Detention of adults without charge is
allowed only when it is necessary to secure or preserve evidence or to obtain it by
questioning; it should only continue beyond 24 hours (to 36 hours) in respect of
serious arrestable offences (e.g. rape, kidnapping, causing death by dangerous
driving) when a superintendant or more senior officer reasonably believes it to be
necessary. Magistrates' courts may then authorize a further extension without
charge for up to 36 hours, which can be extended for another 36 hours, but the
overall detention period cannot exceed 96 hours.
If the ground for detention ceases, or if further detention is not authorized, the
detainee must either be released or be charged and either released on *bail to
appear before a court or taken before the next available court. An arrested person
held in custody may have one person told of this as soon as practicable, though if a
serious arrestable offence is involved and a senior police officer reasonably believes
that this would interfere with the investigation, this can be delayed for up to 36
hours. The detainee has a broadly similar right of access to a solicitor. *Terrorism
suspects may be detained for up to seven days on a magistrate's authority.

detention centre See DETENTION IN A YOUNG OFFENDER INSTITUTION.

detention in a young offender institution A custodial sentence that may be
passed on a person aged 15 or over but under 21 (see JUVENILE OFFENDER). It combines
the former detention centre orders (against male offenders aged 14 to 20) and
youth custody sentences (for males and females aged 15 to 20). The offence must be
so serious, by itself or with another offence, that detention is the only justifiable
outcome; alternatively it must be a violent or sexual offence and detention in such
an institution is the only way of protecting the public from further injury or death.
The court may consider *mitigation and impose a noncustodial sentence.
The minimum detention period is 21 days and the maximum period is 24 months.
Other custodial sentences include custody for life and secure training orders.
determinable interest An interest that will automatically come to an end on
the occurrence of some specified event (which, however, may never happen). For
example, if A conveys land to B until he marries, Bhas a determinable interest that
would pass back to A upon his marriage. But if B dies a bachelor the *possibility of a
reverter to A is destroyed and B's heirs acquire an absolute interest. An interest that
must end at some future point (e.g. a *life interest) is not classified as a
determinable interest, but one that could end during a person's life (for example a
*protective trust) is so classified. A determinable legal estate in land prior to 1925
was known as a determinable fee, but under the Law of Property Act 1925 it can
now exist only as an equitable interest. It is exceptionally difficult to distinguish
between a determinable interest and a *conditional interest. Compare CONTINGENT
INTEREST.

deterrence n. See PUNISHMENT.

detinue n. An action to recover goods, based on a wrongful refusal by the
possessor of the goods to restore them to the owner. The old common law form of
action was abolished by the Judicature Acts 1873-75 and detinue was abolished
altogether by the Torts (Interference with Goods)Act 1977. Recovery of goods is now
governed by the provisions of the 1977Act.

devastavit n. [Latin: he has wasted] The failure of a personal representative to
administer a deceased person's estate promptly and in a proper manner. For
example, if he pays in full a legacy subject to the possibility of *abatement he is
personally liable for the loss suffered by other beneficiaries and caused by his
devastavit. He may also be liable if, for example, he disposes of an asset in the estate
at an undervalue, even if acting in good faith.

development n. (in *town and country planning) Generally, the carrying out of
any building or other operation affecting land and the making of any material
change in the use of any buildings or land. Development does not include alterations
to buildings not materially affecting their external appearance or changes of use
that fall within certain use classes prescribed by statutory instrument. For
example, office use is a use class and a mere change in the type of office business is
not development. All development requires planning permission, other than
"permitted development" under a general development order. The demolition of
houses to provide car parking and a landscaped area is not development.

development land (community land) Under the Community Land Act 1975, land
classified by a local authority as needed for commercial development and required
to be brought first into public ownership, thus effectively nationalizing its
development value. This Act was repealed by the Local Government, Planning and
Land Act 1980.

development land tax A tax charged on the development value of land when
the land was disposed of before 19 March 1985. It was abolished for all disposals after
that date by the Finance Act 1985.

development plan See TOWN AND COUNTRY PLANNING.

deviation n. (in marine insurance) The departure of a ship from an agreed course.
A ship must follow the course specified in a voyage or mixed insurance policy (see
TIME POLICY); if no course is specified, the ship must follow the usual course for the
voyage. Deviation discharges the underwriters from all liability for subsequent loss
(even though it may not increase the risk) unless it is caused by circumstances
beyond control or is justified on certain very limited grounds (e.g. to ensure the
safety of the ship or to save human life, but not merely to save property).
Unreasonable delay may also amount to deviation. Insurance cover does not revive
when the ship rejoins the original course. Between the parties to a voyage charter,
the possibility of deviation is normally the subject of an express deviation clause in
the *charterparty. For goods carried under a *bill of lading, permitted deviation is
dealt with by the Hague Rules.

devil 1. n. A junior member of the Bar who does work (usually settling statements
of case or writing opinions) for a more senior barrister under an informal
arrangement between them and without reference to the senior's instructing
solicitor. The Junior Counsel to the Treasury is sometimes referred to as the

Attorney General's devil. 2. vb. To act as a devil.
devise 1. n.A gift by will of *real property (compare BEQUEST; LEGACY); the
beneficiary is called the devisee.A devise may be specific (e.g. "my house, Blackacre,
to A"), general (e.g. "all my real property to B"), or residuary (e.g. after a specific
devise "...and the rest of my real property to C"). 2. vb. To dispose of real property by
will.

devolution n. 1. The delegation by the central government to a regional authority
of legislative or executive functions (or both) relating to domestic issues within the
region. The word is most commonly used in the context of such functions in Scotland,
Wales, and Northern Ireland. For example, the Scotland Act 1998 devolved power to
the *Scottish Parliament, enabling it to make certain Acts in some areas of policy
and to alter income tax. However, the UKparliament reserved power to make laws
for Scotland. The Government of Wales Act 1998 gave limited administrative powers
to the *Welsh Assembly with the UKparliament continuing to legislate for Wales.
The Northern Ireland Act 1998established an elected *Northern Ireland Assembly but
made devolution of power to the Assembly conditional on the decommissioning of
arms by paramilitary groups. The Northern Ireland Act 2000 enables power to revert
to the UK parliament upon failure to decommission arms, suspending the Northern
Ireland Assembly until the Secretary of State makes a restoration order. 2. The
passing of property from one owner to another, which may occur on death or sale,
as a gift, by operation of law, or in any other way.

dictum n. [Latin: a saying] An observation by a judge with respect to a point of law
arising in a case before him. See also OBITER DICTUM.

digital signature Data appended to a unit of data held on a computer, or a
cryptographic transformation of a data unit, that allows the recipient of the data
unit to prove its source and integrity and protects against forgery. The International
Standards Organization defined this means of identification and protection. An
*electronic signature, as defined by the Electronic Communications Act 2000, has a
similar effect in relation to a commercial agreement.

dilapidation n. A state of disrepair. The term is usually used in relation to repairs
required at the end of a lease or tenancy.

diminished responsibility An abnormal state of mind that does not constitute
*insanity but is a special defence to a charge of murder. The abnormality of mind
(which need not be a brain disease) must substantially impair the mental
responsibility of the accused for his acts, i.e. it must reduce his powers of control,
judgment, or reasoning to a condition that would be considered abnormal by the
ordinary man. It may be caused by disease, injury, or mental subnormality, and is
liberally interpreted to cover such conditions as depression or *irresistible impulse.
If the defendant proves the defence, he is convicted of *manslaughter. See also
BATTERED SPOUSE OR COHABITANT.

diplomatic agent One of a class of state officials who are entrusted with the
responsibility for representing their state and its interests and welfare and that of
its citizens or subjects in the jurisdiction of another state or in international
organizations. Diplomatic agents can be generally classified into two groups: (1) heads
of mission and (2) members of the staff of the mission having diplomatic rank. See
alsoDIPLOMATIC IMMUNITY; DIPLOMATIC MISSION.

diplomatic immunity The freedom from legal proceedings in the UK that is
granted to members of diplomatic missions of foreign states by the Diplomatic
Privileges Act 1964.This Act incorporates some of the provisions of the Vienna
Convention on Diplomatic Relations (1961), which governs diplomatic immunity in
international law. The extent of the immunity depends upon the status of the
member in question, as certified by the Secretary of State. If he is a member of the
mission's diplomatic staff, he is entitled to complete criminal immunity and to civil
immunity except for actions relating to certain private activities. A member of the
administrative or technical staff has full criminal immunity, but his civil immunity
relates only to acts performed in the course of his official duties. For domestic staff,
both criminal and civil immunity are restricted to official duties.
Similar immunities are granted to members of Commonwealth missions by the
Diplomatic and other Privileges Act 1971, and to members of certain international
bodies under the International Organisations Acts 1968and 1981. Under the
Diplomatic and Consular Premises Act 1987, the Secretary of State may remove
diplomatic status from diplomatic or consular premises that are being misused.

diplomatic mission A body composed of government officers representing the
interests and welfare of their state who have been posted abroad (by the sending
state) and operate within the jurisdisdiction of another state (the receiving state).
This mission will be accorded protection by the receiving state in accordance with
the rules of *diplomatic immunity. See also DIPLOMATIC AGENT.

direct effect (in EU law) See COMMUNITY LEGISLATION.

direct evidence (original evidence) 1. A statement made by a witness in court
offered as proof of the truth of any fact stated by him. Compare HEARSAY
EVIDENCE. 2. A statement of a witness that he perceived a fact in issue with one of
his five senses or that he was in a particular physical or mental state. Compare
CIRCUMSTANTIAL EVIDENCE.

direct examination See EXAMINATION-IN-CHIEF.

direction to jury The duty of a judge to instruct a jury on a point of law (e.g.the
definition of the crime charged or the nature and scope of possible defences).
Failure to carry out this instruction correctly may be grounds for an appeal if a
miscarriage of justice is likely to have occurred as a result of the misdirection.

directives of the EU See COMMUNITY LEGISLATION.

Direct Labour Organization A local government division, staffed by local
government employees, that submits bids for services in competition with privatesector
companies when these services are put out to compulsory *competitive
tendering.

directly applicable law Any provision of the law of the European Community
that forms part of the national law of a member state. See COMMUNITY LAW;
COMMUNITY LEGISLATION.

directly effective law See COMMUNITY LAW; COMMUNITY LEGISLATION.

director n. An officer of a company appointed by or under the provisions of the
*articles of association. Directors may have a contract of employment with the
company (service directors and *managing directors) or merely attend board
meetings (nonexecutive directors). (See also SHADOW DIRECTOR.) Contracts of
employment can be inspected by company members; long-term contracts may
require approval by ordinary resolution. Usually, general management powers are
vested in the directors acting collectively, although they may delegate some or all of
these powers to the managing director. Directors act as agents of their company, to
which they owe *fiduciary duties (in the performance of which they must consider
the interests of both company members and employees) and a *duty of care.
Transactions involving a conflict between their duty and their personal interests are
regulated by the Companies Acts. Directors can be dismissed by *ordinary resolution
despite the terms of the articles or any contract of employment, but dismissal in
these circumstances is subject to the payment of damages for breach of contract.
Under the Company Directors Disqualification Act 1986,directors may be
disqualified for *fraudulent trading or *wrongful trading and conduct that makes
them unfit to be concerned in the management of companies.
Remuneration of directors for their services may be due under a contract of
employment or determined by the general meeting. Particulars appear in the
*accounts.

Director General of Fair Trading The head of the Office of Fair Trading, who is
appointed for a five-year term by the Secretary of State for Trade and Industry. He
is responsible for reviewing the carrying on of commercial activities in the UK
relating to the supply of goods or services supplied to consumers in the UKand for
identifying situations relating to *monopolies and *anticompetitive practices.

Director of Public Prosecutions (DPP) The head of the *Crown Prosecution
Service (CPS), who must be a lawyer of at least ten years' general qualification. The
DPPis appointed by the *Attorney General and discharges his functions under the
superintendence of the Attorney General. The DPP,through the CPS, is responsible
for the conduct of all criminal prosecutions instituted by the police and he may
intervene in any criminal proceedings when it appears to him to be appropriate.
Some statutes require the consent of the DPPto prosecution.

disability discrimination See DISABLED PERSON.

disability living allowance A tax-free benefit payable to those under 65 who
have had a disability requiring help for at least three months and are likely to need
such help for at least a further six months. It has two components; a care
component, payable at three rates to those needing help with personal care; and a
mobility component, payable at two rates to those aged five or over who need help
with walking. The rates depend on the level of help required.

disabled person Under the Disability Discrimination Act 1995, a person who has a
physical or mental impairment that has a substantial and long-term effect on his
abilities to carry out day-to-dayactivities. The Act makes it an offence to discriminate
unjustifiably against anyone who is disabled. Discrimination occurs when a disabled
employee (or interviewee) is treated less favourably by an employer (or potential
employer) than someone without a disability, unless the employer can show that the
difference in treatment is justified. Thus it is illegal for employers to refuse to
employ someone qualified to do a job, simply because that person has, or has had, a
physical or mental disability. In addition, employers have a duty to make alterations
to premises to aid disabled employees. However, the law does not apply to employers
with fewer than 15 employees (i.e. after all staff at all branches are aggregated).
On 5 March 2001 the government announced plans for significant changes to the
Disability Discrimination Act. These include removal in 2004 of the small employers'
exemption. The shape of any future proposal will be influenced by the need of the
British government to comply with the recently issued ECFramework Directive
2000/78, which seeks to implement the extended role of the European Union with
respect to the elimination of discrimination.

disabled person's tax credit An income-related benefit that, under the Tax
Credits Act 1999, replaced disability working allowance in October 1999.
Administered by the Inland Revenue rather than the Benefits Agency, it is payable
to those aged 16 or over who are working 16 or more hours a week, who have a
disability that puts them at a disadvantage in obtaining employment, and whose
income does not exceed an amount prescribed under statute.

disablement benefit See INDUSTRIAL INJURIES DISABLEMENT BENEFIT.

disabling statute A statute that disqualifies a person or persons of a specified
class from exercising a legal right or freedom that he or they would otherwise
enjoy.

disbar vb. To expel a barrister from his Inn of Court. The sentence of disbarment
is pronounced by the *Benchers of the barrister's Inn, subject to a right of appeal to
the judges who act as visitors of all the Inns of Court.

discharge n. Release from an obligation, debt, or liability, particularly the
following. 1. *Discharge of contract. 2. The release of a debtor from all *provable
debts (with minor exceptions) at the end of *bankruptcy proceedings. In certain
circumstances discharge is automatic. In other cases, the debtor or the official
receiver may apply to the court for an order of discharge. This may be subject to
conditions, such as further payments by the debtor to his creditors out of his future
income, or it may be suspended until the creditors receive a higher proportion of
the amount due to them. After discharge the debtor is freed from most of the
disabilities to which he was subject as an *undischarged bankrupt. 3. The release of
a convicted defendant without imposing a punishment on him. A discharge may be
absolute or conditional. In an absolute discharge the defendant is not punished for
the offence. His conviction may, however, be accompanied by a *compensation order
or by *endorsement of his driving licence or *disqualification from driving. A
conditional discharge also releases the defendant without punishment, provided
that he is not convicted of any other offence within a specified period (usually three
years). If he is convicted within that time, the court may sentence him for the
original offence as well. Three conditions are required for the court to order a
discharge: (1) that a community rehabilitation order is not appropriate; (2) that the
punishment for the offence must not be fixed by law; and (3) that the court thinks
it inadvisable to punish the defendant in the circumstances.
discharge of contract The termination of a contractual obligation. Discharge
may take place by: (1) *performance of contract; (2)express agreement, which may
involve either *bilateral discharge or unilateral discharge (see ACCORD AND
SATISFACTION); (3) *breach of contract; or (4) *frustration of contract.
disclaimer n. The refusal or renunciation of a right, claim, or property. A
beneficiary under a will that leaves him both a burdensome and a beneficial gift
(e.g.a racehorse that never wins and .50) may disclaim the former and take the
latter. A company's liquidator may disclaim the company's lease, to avoid liability for
the rent and other "onerous" contracts. A trustee may disclaim a trust if he has not
yet accepted it; once he has accepted his trusteeship he may no longer disclaim it
but he may resign (see RETIREMENT OF TRUSTEES). Trusts and powers are normally
disclaimed by deed.

disclosure n. 1. (in contract law) See NONDISCLOSURE; UBERRIMAE FIDEI. 2. (in company
law) a. A method of protecting investors that relies on the company disclosing and
publishing information, which is then evaluated by the investors, their advisers, and
the press. See also STOCK EXCHANGE. b. A method of regulating the conduct of
directors and promoters by requiring them, on *fiduciary principles or by statutory
provisions, to disclose to the company any relevant information, e.g. an interest in a
contract with the company.

disclosure and inspection of documents (in court proceedings) Disclosure by
a party to civil litigation of the *documents in his possession, custody, or power
relating to matters in question in the action and their subsequent inspection by the
opposing party; before the introduction of the *Civil Procedure Rules in 1999, this
procedure was called discovery and inspection of documents. For the purposes of
disclosure, documents extend beyond paper to include anything upon which
information is capable of being recorded and retrieved (e.g. tapes, computer disks). In
*small claims track proceedings, the initial disclosure is by a list of documents that
the party intends to rely upon. In *fast track and *multi-track proceedings, the lists
must include all documents, both those that support the party making the list and
those adversely affecting that party, which they would prefer not to disclose.
Directions for disclosure generally take place at the *allocation stage or the *case
management conference and, unless the court directs or the parties agree otherwise,
there will normally be a direction for standard disclosure. This involves a
reasonable search by the parties to disclose documents on which that party intends
to rely, documents that may be adverse to their own case or another party's case,
documents that support another party's case, and documents that are required to be
disclosed by any relevant *Practice Direction. Some documents, although they must
be disclosed in the list, may be privileged and thus exempted from the subsequent
requirement to produce them for inspection (see PRIVILEGE). Once a party has served a
list of documents, the other party, together with any co-defendants, must be allowed
to inspect the (nonprivileged) documents referred to in the list within seven days of
serving on the first party a written notice requesting inspection. If copies are
needed, a further written notice must be served, with an undertaking to meet
reasonable copying charges. In the absence of disclosure and/or inspection, the court
has power to direct that general or specific disclosure and/or inspection be made.
See also FAILURE TO MAKE DISCLOSURE; NONDISCLOSURE.

disclosure of information 1. (in employment law) The communication by an
employer to employees and their trade-union representatives of information
relevant to *collective bargaining, proposed *redundancies, and the preservation of
employees' health and *safety at work. Under the Trade Union and Labour Relations
(Consolidation) Act 1992,employers must disclose the following information to the
representatives of a recognized *independent trade union. (1) Information that is
essential for the maintenance of good industrial relations or for the formulation of
wage and related demands. The duty to disclose this information only arises if the
union requests the information. When disclosure would damage national security or
harm the business (apart from its effect on collective bargaining), or the
information is sub judiceor relevant only to particular individuals, disclosure need
not be given. Guidelines on disclosure are published by *ACAS (see also CODE OF
PRACTICE). When an employer refuses to disclose essential information, the *Central
Arbitration Committee is empowered on the application of the trade union to make
awards of wages and conditions that are ultimately enforceable in the courts. (2)
Details of any redundancies proposed by the employer. He must give the union 90
days' notice when 100 or more employees are to be made redundant over a period of
90 days or less, and 30 days' notice when between 20 and 99 redundancy dismissals
are proposed within a 90-day period. The employer's notice must specify the reason
for his proposals, the numbers and job descriptions of employees involved, the way
in which employees have been selected for redundancy, and the procedures for their
dismissal. He must consider any representations made by the union, but need not
comply with its demands. If the employer fails to give the required notice, the
union can apply to an employment tribunal, which may make a *protective award
to the redundant employees. Under the Health and Safety at Work Act 1974,an
employer must give his employees at large such information, instruction, and
supervision as will ensure their health and safety so far as is reasonably practicable.
He must also give copies of any relevant documents to safety representatives
appointed by a recognized trade union. 2. (in criminal proceedings) For criminal
proceedings issued after 1 April 1997, the Criminal Procedure and Investigations Act
1996 sets out detailed rules on disclosures that the prosecution must make to the
defence. It must disclose anything that might undermine its case and anything that
might assist the defence, but the judgment of what undermines the prosecution or
assists the defence remains with the prosecutor. Thus the Act enables the
prosecution to decide what information they believe should be disclosed to the
defence and, in particular, whether to disclose information about any weakness in
their own investigation. 3. See BREACH OF CONFIDENCE.

disclosure of interest The duty of local authority members to disclose (at the
time or by prior notice to the authority) any pecuniary interest they or their
spouses have in any matter discussed at a local authority meeting. They must also
abstain from speaking and voting on it. Breach of the duty is a criminal offence.

discontinuance of action See NOTICE OF DISCONTINUANCE.

discovery n. (in international law) A method of acquiring territory in which good
title can be gained by claiming previously unclaimed land (terra nullius). In the early
days of European exploration it was held that the discovery of a previously
unknown land conferred absolute title to it upon the state by whose agents the
discovery was made. However, it has now long been established that the bare fact of
discovery is an insufficient ground of proprietary right.

discovery and inspection of documents See DISCLOSURE AND INSPECTION OF
DOCUMENTS.

discretion n. See JUDICIAL DISCRETION.

discretionary area of judgment A concept used in some cases in the domestic
courts when reviewing decisions of public authorities under the *European
Convention on Human Rights. The concept allows the courts to defer on democratic
grounds to the decisions of elected bodies. It follows from the fact that the concept
of the *margin of appreciation is not applicable in the domestic courts.

discretionary trust A trust under which the trustees are given discretion as to
who, within a class chosen by the settlor, should receive trust property and how
much each should receive. A settlor must give some indication as to the limits of the
class of people he intends to benefit, but the trustees do not need to have an
exhaustive list. A beneficiary under a discretionary trust has no enforceable right to
any part of the property or its income, although the trustees must consider his
claims together with those of the other beneficiaries. Such trusts are often very
difficult to distinguish from *trust powers and *powers of appointment held by
*trustees. Discretionary trusts have been invaluable in planning to mitigate liability
to tax, but recent fiscal legislation has reduced their advantages.

discrimination n. Treating one or more members of a specified group unfairly as
compared with other people. Discrimination may be illegal on the ground of sex,
sexual orientation, race, religion, disability, or nationality. See also DISABLED PERSON;
HUMAN RIGHTS ACT, POSITIVE DISCRIMINATION; RACIAL DISCRIMINATION; SEX DISCRIMINATION.

disentailing deed A deed used to bar (convert into a *fee simple) an *entailed
interest.

disentailment n. The barring of an *entailed interest.

dishonesty n. An element of liability in *theft, *abstracting electricity, *deception,
*handling stolen goods, and some related offences. To convict of such offences the
magistrates or jury must be satisfied that what was done was dishonest by the
standards of ordinary decent people and that the defendant realized this at the time.

dishonour n. (in commercial law) Failure to honour a bill of exchange. This may be
by nonacceptance, when a bill of exchange is presented for *acceptance and this is
refused or cannot be obtained (or when *presentment for acceptance is excused and
the bill is not accepted); or by nonpayment, when the bill is presented for payment
and payment is refused or cannot be obtained (or when presentment is excused and
the bill is overdue and unpaid). In both cases the holder has an immediate right of
recourse against the drawer and endorsers, but *foreign bills that have been
dishonoured must first be protested (see PROTEST). See alsoNOTICE OF DISHONOUR.

dismissal n. (in employment law) The termination of an employee's contract of
employment by the employer. An employer usually dismisses the employee by
giving him the required period of *notice, but dismissal without notice may be
justified in certain circumstances (e.g.for gross misconduct). An employer's failure
to renew a fixed-term employment contract also counts as dismissal. An employee
having the required length of service in the business (see CONTINUOUS EMPLOYMENT)
can apply to an employment tribunal if he is unfairly dismissed (see UNFAIR
DISMISSAL); the tribunal can order his *reinstatement or *re-engagement or can
award him *compensation. An employee dismissed for *redundancy after two years'
continuous employment in the business is entitled to a *redundancy payment under
the Employment Rights Act 1996.An employee dismissed without due notice or
before his fixed-term contract expires can also claim damages in the courts for
"wrongful dismissal. See alsoSTATEMENT OF REASONS FOR DISMISSAL.

dismissal of action The termination of a civil action in favour of the defendant.
An order for dismissal of action may be made at the conclusion of the trial, but is
usually made during the *interim (interlocutory) proceedings; for example, for
breach of some rule of procedure. Dismissal for want of prosecution occurs if the
claimant has been guilty of inordinate and inexcusable delay in circumstances in
which there is a risk that a fair trial is no longer possible or in which there has been
prejudice to the defendant. This type of dismissal is now rare under the heavily casemanaged
procedure prescribed by the Civil Procedure Rules.

dismissal procedures agreement A collective agreement containing provisions
relating to the dismissal of employees and intended to replace the statutory
provisions concerning *unfair dismissal. See also COLLECTIVE BARGAINING.

dismissal statement See STATEMENT OF REASONS FOR DISMISSAL.

disorderly house A *brothel or a place staging performances or exhibitions that
tend to corrupt or deprave and outrage common decency. It is a misdemeanour at
common law to keep a disorderly house.

disparagement of goods See SLANDER OF GOODS.

disposal of uncollected goods The sale by a bailee of goods in his possession or
under his control when the bailor is in breach of an obligation to collect them (see
BAILMENT). When the original contract does not require the bailor to collect the
goods, the bailee may, by giving notice, impose such an obligation. The relevant
statutory provisions in the Torts (Interference with Goods) Act 1977lay down
conditions relating to the giving of notice of the bailee's intention to sell, allowing
the bailor a reasonable opportunity to collect. The bailee should adopt the best
method of sale available and must account to the bailor for the proceeds of sale less
any sum due before he gave notice of intention to sell. There is provision for a
bailee to have a sale authorized by a court.

disposition n. 1. (in land law) The transfer of property by some act of its owner,
e.g. by sale, gift, will, or exchange. 2. (in the law of evidence) The tendency of a
party (especially the accused) to act or think in a particular way. Evidence of the
accused's disposition may generally not be given unless it is based upon admissible
evidence of character or admissible *similar-fact evidence. Evidence of *previous
convictions, other than those admitted as similar-fact evidence or under the
Criminal Evidence Acts, may tend to suggest to the *trier of fact that the accused
has a particular disposition, but is technically admissible only on the question of his
credibility. See also CHARACTER.

disqualification n. Depriving someone of a right because he has committed a
criminal offence or failed to comply with specified conditions. Disqualification is
usually imposed in relation to activities requiring a licence, and in particular for
traffic offences. In the case of many traffic offences, the court has discretion to
disqualify drivers for a stated period. There are also a number of traffic offences for
which disqualification for at least 12 months is compulsory (unless the offender can
show special reasons relating to the circumstances of the offence, not to his
personal circumstances). These offences are: (1) manslaughter; (2) *causing death by
dangerous driving (the minimum disqualification period here is two years); (3)
*causing death by careless driving; (4) *dangerous driving; (5) driving or attempting
to drive while unfit; (6)driving or attempting to drive with excess alcohol in the
breath, blood, or urine (see DRUNKEN DRIVlNG); (7) failure (in certain cases) to provide a
*specimen of breath, blood, or urine; (8) racing or speed trials on the highway.
If a person is convicted for a second time within ten years of a driving offence
involving drink or drugs, he must be disqualified for at least three years. The courts
may also disqualify anyone who commits an indictable offence of any kind involving
the use of a car. There is also a *totting-up system of endorsements, which can
result in disqualification. When someone is disqualified from driving, his licence will
usually also be endorsed with details of the offence (but not with any penalty points
for the purpose of totting up). The court may also make a *driving-test order. A
person who has been disqualified from driving may apply to have the
disqualification removed after two years or half the period of disqualification
(whichever is longer) or, when he has been disqualified for ten years or more, after
five years. See alsoDRIVING WHILE DISQUALIFIED.

dissolution n. 1. The legal termination of a marriage; for example, by a decree of
divorce, nullity, or presumption of death. 2. The dissolving of a *registered
company. This can be achieved by *winding-up or by the Registrar of Companies
striking it off the companies register as "defunct", because he has reasonable cause
to believe that the company is no longer carrying on business or has failed to file
accounts. The company can be restored to register subsequently on application by
petition and payment of the relevant fee. 3. See PARLIAMENT.

distance selling The sale of goods or services to a consumer in which the parties
do not meet, such as sale by mail order, telephone, digital TV, email, or the Internet.
The EU distance selling directive 976/7, implemented from October 2000 in the UK
by the Consumer Protection (Distance Selling) Regulations 2000, contains the
relevant law. In particular, consumers have rights to certain information about the
contract to be entered into and, in many cases, the right to cancel the contract
within a certain period, often seven working days from the day after receipt of the
goods. The right applies whether the goods are defective or not, but it does not
apply in certain important categories (such as auctions, betting, goods specifically
made for a consumer, and food that will deteriorate).

distinguishing a case The process of providing reasons for deciding a case under
consideration differently from a similar case referred to as a *precedent.

distortion of competition See ARTICLE 81.

distrain vb. To seize goods by way of *distress.

distress n. The seizure of goods as security for the performance of an obligation.
The two principal situations covered by the remedy of distress are (1) between
landlord and tenant when the rent is in arrears (see DISTRESS FOR RENT); and (2)when
goods are unlawfully on an occupier's land and have done or are doing damage (see
also DISTRESS DAMAGE FEASANT). In the latter case the occupier may detain the chattel
until compensation is paid for the damage.

distress damage feasant A right to detain animals found doing damage on
one's land as security for compensation. This right was abolished in England by the
Animals Act 1971and replaced by a statutory power to detain and ultimately to sell
the animals. The statutory power is subject to detailed requirements of giving
notice of detention and taking care of the animals.

distress for rent The seizing of a tenant's goods by the landlord to secure
payment of rent arrears. If the tenant fails to pay the rent arrears after distress has
been levied, the landlord may sell the goods and keep the amount due. In the case of
an *assured, *protected, or *statutory tenancy the landlord must obtain a court's
permission before levying distress. In 1986 the *Law Commission recommended
abolition of distress.

distressing letters See SENDING DISTRESSING LETTERS.

distribution n. 1. The process of handing over to the beneficiaries their
entitlements under a deceased person's will or on his intestacy. 2. Any payment
made by a company to a shareholder out of its distributable profits in cash or kind.
It does not include payments made in the course of a winding-up or repayments of
the capital originally subscribed or subsequently received by the company. See also
QUALIFYING DISTRIBUTION.

district n. A *Iocal government area in England (outside Greater London) consisting
of a division of a *county. The Local Government Act 1972 divided the 6
metropolitan and 39 nonmetropolitan counties in England into 36 metropolitan and
296 nonmetropolitan districts, respectively, and the 8 counties in Wales into 37
districts. The 6 metropolitan counties were abolished by the Local Government Act
1985and their functions transferred generally to the metropolitan district councils,
which became single-tier authorities. A district may be styled a borough by royal
charter granted on the petition of the *district council. The Welsh counties and
districts were abolished by the Local Government (Wales) Act 1994, being replaced on
1 April 1996 by 22 *unitary authorities (11 counties and 11 county boroughs). Unitary
authorities have been phased in in certain nonmetropolitan areas of England. See also
LOCAL GOVERNMENT COMMISSION FOR ENGLAND.

district auditors Civil servants who audited the accounts of all local authorities
except those who chose audit by approved commercial accountants. Originally
established under the Local Government Finance Act 1982and now consolidated
under the Audit Commission Act 1998, the Audit Commission was established to
take responsibility for local authority audits. District auditors are now officials of
the Audit Commission, but modern practice is to appoint independent approved
auditors from private firms of accountants. If any transaction involved unlawful
expenditure, they may obtain a court order for repayment by the persons responsible.
district council A *local authority whose area is a *district. A district council has
certain exclusive responsibilities (e.g.housing and local planning) and shares others
(e.g. recreation, town and country planning) with the council of the county to which
the district belongs. Some responsibilities (e.g. education and the personal social
services) belong to the district council if the district is metropolitan, but to the
county council if it is not. If a district has the style of borough, its council is called a
borough council and its chairman the mayor. The *Local Government Commission
for England began work in 1992 on a review of local authorities with a view to
establishing *unitary (single-tier) authorities. This has led to wider powers for
district councils and to some amalgamations and boundary revision.

District Health Authorities See NATIONAL HEALTH SERVICE.

district judge In the county courts, a judicial officer appointed by the Lord
Chancellor from solicitors of not less than seven years' standing. The district judge
supervises interim (interlocutory) and post-judgment stages of the case, but can also
try cases within a financial limit defined by statute. District judges were formerly
known as district registrars.

district judge (magistrates' court) A barrister or solicitor of not less than
seven years' standing, appointed by the Lord Chancellor to sit in a magistrates' court
on a full-time salaried basis: formerly (before August 2000) called a stipendiary
magistrate. Metropolitan district judges (magistrates' court) sit in magistrates'
courts for Inner London; other magistrates sit in large provincial centres. They have
power to perform any act and to exercise alone any jurisdiction that can be
performed or exercised by two justices of the peace, except the grant or transfer of
any licence. In other respects their powers are the same as other justices.

district registry An office of the High Court outside London, corresponding in
function to the *Central Office; however, only a limited number of district
registries exercise full powers in relation to proceedings in the *Chancery Division.
There are district registries in all major towns and cities in England and Wales.
distringas n. [Latin: that you distrain] A writ, now obsolete, commanding the
sheriff to distrain on a person for a certain purpose. In modern practice it has been
replaced by a *stop notice, sometimes called a notice in lieu of distringas, which
prevents dealings in securities that are subject to a *charging order.

disturbance n. 1. The infringement of a right, e.g. the obstruction of a right of
way. 2. The removal of a person's rights under a statutory power. For example,
compensation for disturbance may be payable to a landowner if his land is
compulsorily acquired by a local authority.

dividend n. A payment declared either by the directors of a company (interim
diVidend) or at the *annual general meeting (final dividend) as being payable to
shareholders from profits available for distribution. The payment is determined by
reference to the terms of the *share contract; it is an agreed fixed rate for
preference shares but will vary with the fortunes of the company for the holders of
ordinary shares.

divisible contract See PERFORMANCE OF CONTRACT.

division n. The taking of a vote on any matter in either House of Parliament.

Divisional Court A court consisting of not less than two judges of one of the
Divisions of the High Court. There are Divisional Courts of each of the Divisions.
Their function is to hear appeals in various matters prescribed by statute; they also
exercise the supervisory jurisdiction of the High Court over inferior courts. Most of
this jurisdiction is exercised by the Queen's Bench Division, which also hears
applications for *judicial review and appeals by *case stated from magistrates'
courts. The Chancery Division hears appeals in *bankruptcy matters and the Family
Division hears appeals from magistrates' courts in matters of family law.

Divisions of the High Court See CHANCERY DMSION; FAMILY DMSION; QUEEN'S BENCH
DIVISION.

divorce n. The legal termination of a marriage and the obligations created by
marriage, other than by a decree of nullity or presumption of death. The present
law on divorce dates from 1969.Before this, the law required proof of a
*matrimonial offence (adultery, cruelty, or desertion of three years). The current
law is contained in the Matrimonial Causes Act 1973,which provides that there is
only one ground for divorce, namely that the marriage has irretrievably broken
down. Proceedings are initiated by either spouse filing a petition for divorce,
stating the facts that have led to the marital breakdown and accompanied by a
*statement of arrangement for children, (Divorce proceedings may not be started
within the first year of a marriage.) Irretrievable breakdown of a marriage may only
be evidenced by one of the following five facts: (1) that the respondent has
committed *adultery and the petitioner finds it intolerable to live with the
respondent; (2) that the respondent has behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent (see UNREASONABLE
BEHAVIOUR); (3) that the respondent has deserted the petitioner for at least two years
(see DESERTION); (4) that the parties have lived apart for at least two years and the
respondent consents to a divorce; or (5) that the parties have lived apart for at least
five years. A respondent in a two-year separation case can apply for a postponement
of the divorce until the court is satisfied that the petitioner has made fair and
reasonable financial provision for the respondent. In a five-year separation case the
court has the power to bar divorce if it believes that grave financial or other
hardship would result from the dissolution and that it would be wrong to dissolve
the marriage; however, this power is rarely exercised.
Divorce is a two-stage process. The first stage is the granting of a *decree nisi; six
weeks later the petitioner may apply for a *decree absolute. The marriage is not
terminated until the decree absolute has been granted. Uncontested divorce cases are
heard under the *special procedure; the majority of cases are now dealt with in this
way. Divorce courts have wide powers under the Matrimonial Causes Act 1973 to
make orders in respect of children and to adjust financial and property rights. See
also CHILD PROTECTION IN DIVORCE; FINANCIAL PROVISION ORDER; MAINTENANCE AGREEMENT;
PROPERTY ADJUSTMENT ORDER.

Divorce Registry The section of the Family Division of the High Court with
jurisdiction over divorce proceedings.

DNA fingerprinting (genetic fingerprinting) A scientific technique in which an
individual's genetic material (DNA) is extracted from cells in a sample of tissue and
analysed to produce a graphic chart that is unique to that person. The technique
may be used as *evidence of identity in a criminal or civil case and has been notably
successful in both paternity and rape cases. DNA samples (e.g. of hair) may be taken
from suspects in accordance with the Police and Criminal Evidence Act 1984 and
after conviction for any offence punishable by imprisonment.

dock brief The obsolete procedure by which a defendant to a criminal charge
could, on indictment, select any barrister in the court who was not otherwise
engaged to represent him, on payment of a nominal fee.

doctrine of incorporation The doctrine that rules of international law
automatically form part of municipal law. It is opposed to the doctrine of
transformation, which states that international law only forms a part of municipal
law if accepted as such by statute or judicial decisions. It is not altogether clear
which view English law takes with respect to rules of customary *internationallaw.
As far as international treaties are concerned, the sovereign has the power to make
or ratify treaties so as to bind England under international law, but these treaties
have no effect in municipal law (with the exception of treaties governing the conduct
of war) until enacted by Parliament. However, judges will sometimes consider
provisions of international treaties (e.g. those relating to *human rights)in applying
municipal law. It has been said that directives of the European Commumty have the
force of law in member states, but practice varies widely (see COMMUNITY LEGISLATION).

document n. Something that records or transmits information, typically in
writing on paper. For the purposes of providing evidence to a court, documents
include books, maps, plans, drawings, photographs, graphs, discs, tapes, soundtracks,
and films (see also COMPUTER DOCUMENTS). Some legal documents are only valid if they
meet certain requirements (see DEED; WILL). Documents that are to be used in court
proceedings must be disclosed to the other party in a procedure known as
*disclosure and inspection of documents. In court, the original of a document must
be produced in most cases. In the case of a public document a particular kind of
copy must be produced; for example, a copy of a statute must be a government
printer's copy, and a copy of a byelaw must be certified by the clerk to the local
authority concerned. The authenticity of private documents must be proved by the
evidence of a witness. In practice this procedure is often avoided or simplified by
each party admitting the authenticity of particular documents prior to the court
hearing. See also PAROL EVIDENCE RULE; PRODUCTION OF DOCUMENTS.

documentary evidence Evidence in written rather than oral form. The
admissibility of a document depends upon (1) proof of the authenticity of the
document and (2) the purpose for which it is being offered in evidence. If it is being
offered to prove the truth of some matter stated in the document itself it will be
necessary to consider the application of the rule against hearsay (see HEARSAY
EVIDENCE) and its many exceptions.

document of title to goods A document, such as a *bill of lading, that
embodies the undertaking of the person holding the goods (the bailee) to hold the
goods for whoever is the current holder of the document and to deliver the goods to
that person in exchange for the document.

dogs pl. n. See CLASSIFICATION OF ANIMALS; DANGEROUS ANIMALS; GUARD DOG.
doli capax [Latin] Capable of wrong. A child under the age of 10 is deemed
incapable of committing any crime. Above the age of 10 children are doli capax and
are treated as adults, although they will usually be tried in special youth courts
(with the exception of homicide and certain other grave offences) and sUbjec~ to
special punishments. Formerly, there was a rebuttable presumption that a child
between the ages of 10 and 14 was also doli incapax (incapable of wrong). This
presumption has now been abolished. See JUVENILE OFFENDER.

domain name An Internet address, which may be protected under *trade mark
law.

domestic premises A private residence, used wholly for living accommodation,
together with its garden, yard, and attached buildings (such as garages and
outhouses).

domestic tribunal A body that exercises jurisdiction over the internal affairs of
a particular profession or association under powers conferred either by statute (e.g.
the disciplinary committee of the Law Society) or by contract between the members
(e.g. the disciplinary committee of a trade union). The decisions of these tribunals
are subject to judicial control under the doctrine of *ultra Vires and, if they are
statutory, when there is an *error of law on the face of the record. Compare
ADMINISTRATIVE TRIBUNAL.

domestic violence See BATTERED SPOUSE OR COHABITANT.

domicile n. The country that a person treats as his permanent home and to which
he has the closest legal attachment. A person cannot be without a domicile and
cannot have two domiciles at once. He acquires at birth a domicile of origin.
Normally, if his father is then alive, he takes his father's domicile; if not, his
mother's. He retains his domicile of origin until (if ever) he acquires a domicile of
choice in its place. A domicile of choice is acquired by making a home in a country
with the intention that it should be a permanent base. It may be acquired at any
time after a person becomes 16 and can be replaced at will by a new domicile of
choice. See LEX DOMICILII.

dominant tenement Land the ownership of which entitles the owner to rights
comprising a legal or equitable interest (such as an easement or profit aprendre) in
other land, called the servient tenement.

Dominions pl. n. Formerly, the group of UKcolonies that, by virtue of the Statute
of Westminster 1931, were the first to become fully independent. Certain of these,
together with many other former colonies, are now collectively known as the
*Commonwealth.

donatio mortis causa [Latin; a gift on account of death] An immediate gift of
real or personal property made by a donor who expects to die in the near future.
The gift must be made to take complete effect only on the death of the donor and
there must be delivery of the property or something amounting to delivery. The
latter requirement has been held to be satisfied by a transfer of the means or part
of the means of obtaining the property or a transfer of the indications of title to
the property (e.g. title deeds). The donor must make the transfer with the intention
of relinquishing ownership of the property but may withdraw from that intention
at any time prior to death and thereby defeat the gift. If the donor does not die the
gift will be revoked.

double criminality The rule in *extradition procedures that, in order for the
request to be complied with, the crime for which extradition is sought must be a
crime in both the requesting state and the state to which the fugitive has fled. See
also EXTRADITION TREATY; SPECIALITY.

double portions pl. n. See RULE AGAINST DOUBLE PORTIONS.

double probate A second grant of *probate in respect of the same estate in
favour of an executor who was not a party to the first grant. This occurs when the
executor has not renounced his executorship and has a power to apply for a grant
of probate at a later time than the original grant.

DPP See DIRECTOR OF PUBLIC PROSECUTIONS.

draft n. 1. An initial unsigned agreement, treaty, or piece of legislat~on, which is
not yet in force. 2. An order for the payment of money, e.g. a banker s draft.

Drago doctrine The doctrine that states cannot employ force in order to recover
debts incurred by other states. Thus the fact that a state ~as defaulted on Its debt to
aliens or to another state does not legalize the use of military intervention by these
creditors in order to reclaim monies they are owed.

driftway n. A *highway over which there exists a right to drive cattle,
accompanied by persons either on foot or mounted.

driver n. For purposes of the Road Traffic Acts, anyone who uses the o~di.nary
controls of a vehicle (i.e. steering and brakes) to direct its movement. ThIS includes
anyone steering a car when the engine is off or when being towed by another vehicle.

driving licence An official authority to drive a motor vehicle, ~ranted upon
passing a driving test. A renewable provisional driving lice~c~, ValI~ for 12 months,
may be granted to learner drivers, but the holder of a provIsIOn~1 .lIcence may not
drive a motor car on a public road unless accompamed by a qualified dnver and
unless he displays 'I.' plates on the front and rear of the vehicle.
A full licence may be obtained by anyone who has passed the Department of
Transport driving test, which is carried out by.the Driving Standards Agency (~n
executive agency) and is now preceded by a wntten test, or held a full IIcen~e Issued
in Great Britain, Northern Ireland, the Isle of Man, or the Channel Islands WIthin ten
years before the date on which the licence is to come into force. It IS normally
granted until the applicant's 70~h birthday. ~fter the age of 7?' licences are granted
for three-year periods. The applicant must disclose anydisability and may be asked
to produce his medical records or have a medical exammatIOn.. .
An applicant will not normally be granted a licence if he is suffering from certain
types of disability, including epilepsy, sudden attacks of disabling giddiness or
fainting, or a severe mental illness or defect. In the case of epilepsy, however, he
may still be granted a licence if he can show that he has been free of all attacks for
at least two years or that he has only had attacks during sleep .for more. than t~ree
years. If an applicant for a licence has diabetes or a heart condition, IS fitted WIth a
heart pacemaker, has been treated within t.he p~evious three years for drug .
addiction, or is suffering from any other disability (e.g.loss or ~eakness of a limb)
that would affect his driving, the grant of a licence is usually discretionary. ..
It is an offence to knowingly make a false statement in order to ob,tam a d~Ivmg
licence, not to disclose any current *endorsements, or not to sI.gn on~ s name m ink
on the licence. A police officer may require a driver to show hIS driving licence or
produce it personally at a specified police station within five ~ays. He may also ask
to see the licence of someone whom he believes was either driving a vehicle involved
in an accident or had committed a motoring offence. Failure to produce one's
licence in these circumstances carries a fine. See alsoDRIVING WITHOUT ALICENCE.
Under the Road Traffic (New Drivers) Act 1995, with effect from 1 June 1997, a
driver who is convicted of an endorsable offence and who has accumu~ated 6 or .
more penalty points (see TOTTING UP) within two years of passing a driving test WIll
have his licence revoked and must retake the test.

driving-test order An order by the court that a person who has been convicted
of an offence that is subject to *disqualification should be disqualified from driving
until he passes a test showing that he is fit to drive. The order should only be made
where there is reason to suspect that the person is not fit to drive; for example,
because he is very old or unwell, and has shown evidence of incompetence in his
driving. It is not meant as a punishment but to protect the public.

driving while disqualified An offence committed by the *driver of a motor
vehicle on a public road when he is disqualified from driving (see DISQUALIFICATION).
This is an endorsable offence (carrying 7 penalty points under the <totting-up
system) and the courts have discretion to impose a further period of disqualification.

driving while unfit See DRUNKEN DRMNG.

driving without a licence An offence committed by the *driver of a motor
vehicle on a public road without a *driving licence or provisional driving licence
valid for the vehicle he is driving. If the circumstances are such that he would in
fact have been refused a licence had he applied for one, or if he fails to comply with
the conditions applicable to a provisional licence, his licence (if he subsequently
obtains one) will usually be endorsed (the endorsement carries 2 penalty points
under the *totting-up system) and the court has discretion to order disqualification
from driving (if he applies for a licence during the disqualification period).
Otherwise this is not an endorsable offence.

driving without insurance An offence committed by a *driver who uses or
allows someone else to use a motor vehicle on a public road without valid *thirdparty
insurance. The offence is one of *strict liability (except when an employee is
using his employer's vehicle) and applies even if, for example, the insurance
company who issued the insurance suddenly goes into liquidation. The offence is
punishable by a fine, endorsement (it carries 6-8 penalty points under the *tottingup
system), and disqualification at the discretion of the court.

drugs pl. n. See CONTROLLED DRUGS.

drunken driving Driving (see DRIVER) while affected by alcohol. Drunken driving
covers two separate legal offences.

(1) Driving while unfit. Ir is an offence to drive or attempt to drive a motor vehicle
on a road or public place when one's ability to drive properly is impaired by alcohol
or drugs. Drugs include medicines (such as insulin for diabetics), and the offence
appears to be one of *strict liability. It is also an offence to be in charge of a motor
vehicle on a road or in a public place while unfit to drive because of drink or drugs,
but the defendant will be acquitted if he can show that there was no likelihood of
his driving the vehicle in this condition (for example, if he arranged for someone
else to drive him if he became drunk). A police officer can arrest without a warrant
anyone whom he reasonably suspects is committing or has been committing either
of these offences; he may also (except in Scotland) enter any place where he believes
the suspect to be, using force if necessary.

(2) Driving over the prescribed limit. It is an offence to drive or attempt to drive a
motor vehicle on a road or in a public place if the level of alcohol in one's breath,
blood, or urine is above the specified prescribed limit (35 micrograms of alcohol in
100 millilitres (ml) of breath; 80 milligrams (mg) of alcohol in 100 ml of blood; 107
mg of alcohol in 100 ml of urine - roughly equivalent to 2Yz pints of beer, or 5
glasses of wine, or 5 single whiskys). It is also an offence to be in charge of a motor
vehicle on a road or in a public place when the proportion of alcohol is more than
the prescribed limit, subject to the same defence as in being in charge while unfit.
Both these offences are offences of strict liability: it is therefore not a defence to
show that one did not know that the drink was alcoholic or that it exceeded the
prescribed limit. The normal way in which offences involving excess alcoholle~els
are proved is by taking a *specimen of breath for laboratory analysis, but this IS not
necessary if the offence can be proved in some other way (for example, by evidence
of how much a person drank before driving). There is no power to arrest a person
on suspicion of committing or having committed an offence of this sort before
administering a preliminary *breath test.
Most charges involving drinking and driving are brought under the offence of
driving over the prescribed limit rather than driving while unfit, but the powers to
administer a breath test or to take a specimen of breath for analysis apply to both
offences. The penalties for either of these offences are a fine and/or imprisonment,
*endorsement, and obligatory *disqualification (in cases of driving or attemptmg to
drive) or discretionary disqualification (in cases of being in charge). Under the
*totting-up system, the discretionary disqualification offences carry 10 penalty .
points and the compulsory disqualification offences carry .3-11 I:enal~y points (which
are only imposed if there are special reasons preventmg disqualification). See also
CAUSING DEATH BY CARELESS DRIVING; OFFENCES RELATING TO ROAD TRAFFIC.

drunkenness n. *Intoxication resulting from imbibing an excess of alcohol. It is
an offence to be drunk in a public place.

dualism n. See MONISM.

dubitante adj. [Latin] Doubting. The term is used in law reports in relatio~ to a
judge who is doubtful about a legal proposition but does not wish to declare It wrong.

duces tecum [Latin: you shall bring with you] See WITNESS SUMMONS.

due diligence The legal obligation of states to exercise all reasonable efforts to
protect *aliens and their property in the host state. Such aliens must have been
permitted entry into the host state. If there is a failure or lack o~ due dl~lgence, the
state in default is held responsible and liable to make compensation for injury to
the alien or to the alien's estate. See STATE RESPONSIBILITY.

dum casta vixerit [Latin] As long as she lives chastely. A clause sometimes
inserted in a separation agreement, freeing the husband from the terms of the
agreement (e.g.maintenance obligations) if his wife commits adultery.

dumping n. The sale of goods abroad at prices below their normal value. Within
the EU dumping regulations prohibit the sale of goods at below normal value.

Countervailing (or antidumping) duties may be ordered on certain Imported
goods to prevent dumping.

dum sola [Latin] While single: the status of a single woman or widow.

duplex querela [Latin: double complaint] The procedure in ecclesiastical law for
challenging a bishop's refusal to admit a presentee to a benefice.

durante absentia [Latin: during the absence of] Describing a grant of *Ietters of
administration of a deceased's estate to some person interested in the estate while
the personal representative is abroad. See also LIMITED ADMINISTRATION.

duress n. Pressure, especially actual or threatened physical force, put on a person
to act in a particular way. Acts carried out under duress usually have no legal effect;
for example, a contract obtained by duress is voidable (see alsoECONOMIC DURESS;
UNDUE INFLUENCE). In criminal law, when the defendant's power to resist IS destroyed
by a threat of death or serious personal injury, he will have a defence to a criminal
charge, although he has the *mens rea for the crime and knows that what he IS
doing is wrong. Duress is not a defence to a charge of murder as a principal (i.e. to
someone who actually carries out the murder himself), although it is still a defence
to someone charged with aiding and abetting murder. The threat need not be
immediate; it is sufficient that it is effective; for example a threat in court to kill a
witness may constitute duress and thus be a defence to a charge of perjury, even
though it cannot be carried out in the courtroom. However, the defence is
unavailable to someone who failed to take available alternative action to avoid the
threat. See also COERCION; NECESSITY; SELF-DEFENCE.

during Her (or His) Majesty's pleasure A phrase colloquially used to describe
the period of detention imposed upon a defendant found not guilty by reason of
*insanity. Such a person was consequently known as a pleasure patient. The
defendant must still be admitted to a hospital specified by the Home Secretary
(either a local psychiatric hospital or a *special hospital) and remain there until
otherwise directed, but the phrase "during Her Majesty's pleasure" is no longer used
in the statute.

Dutch courage See INTOXICATION.

duty n. 1. A legal requirement to carry out or refrain from carrying out any act.
Compare POWER. 2. A payment levied by the state, particularly on certain goods and
transactions. Examples are *customs duty, *excise duty, and *stamp duty.

duty of care The legal obligation to take reasonable care to avoid causing damage.
There is no liability in tort for *negligence unless the act or omission that causes
damage is a breach of a duty of care owed to the claimant. There is a duty to take
care in most situations in which one can reasonably foresee that one's actions may
cause physical damage to the person or property of others. The duty is owed to
those people likely to be affected by the conduct in question. Thus doctors have a
duty of care to their patients and users of the highway have a duty of care to all
other road users. But there is no general duty to prevent other persons causing
damage or to rescue persons or property in danger, liability for careless words is
more limited than liability for careless acts, and there is no general duty not to
cause economic loss or psychiatric illness. In these and some other situations, the
existence and scope of the duty of care depends on all the circumstances of the
relationship between the parties. Most duties of care are the result of judicial
decisions, but some are contained in statutes, such as the Occupiers' Liability Act
1957 (see OCCUPIER'S LIABILITY).

duty solicitors *Solicitors who attend by rota at magistrates' courts in order to
assist defendants who are otherwise unrepresented.

duty to convert (in equity) See CONVERSION.

dying declaration An oral or written statement by a person on the point of
death concerning the cause of his death. A dying declaration is admissible at a trial
for the murder or the manslaughter of the declarant as an exception to the rule
against *hearsay evidence, provided that he would have been a competent witness
had he survived (see COMPETENCE). Case law requires that the person making the
dying declaration must have had a "settled, hopeless expectation of death".