PACE Acronym for the Police and Criminal Evidence Act 1984.
pact n. See TREAIT.
pacta sunt servanda [Latin] Agreements are to be kept; treaties should be
observed. Pacta sunt servandais the bedrock of the customary international law of
treaties and, according to some authorities, the very foundation of international law.
.Without such an acceptance, treaties would become worthless.
pacta tertiis nee noeent nee prosunt [Latin] Treaties do not create either
obligations or rights for third states without their consent.
paedophile n. A person who is sexually attracted to children (of either sex). Sexual
activity with any children under the age of 16 is illegal. See also CHILD ABUSE; SEXUAL
OFFENCE.
paid-up capital The amount actually paid to a company for shares allotted or
issued to a shareholder. If a shareholder makes a full payment of the purchase price
of the share, the amount received is referred to as fully paid-up capital. If the
company permits the shareholder to make only partial payment of the total
purchase price, such shares are referred to as partly paid-up shares, with the
remaining balance recorded in the company's accounts as an amount that the
company may *call upon in the future (uncalled capital).
pain and suffering The psychological consequences of personal injuries, in terms
of pain, shock, consciousness that one's life expectancy has been shortened,
embarrassment caused by disfigurement, etc. Damages are assessed on the extent to
which the claimant actually experiences these feelings.
palatine courts Originally, courts of the counties palatine of Durham, Lancaster,
and Chester. In modern times, only the Chancery courts of Durham and Lancaster
survived, but their jurisdiction was transferred to the High Court by the Courts Act
1971. See also VICE CHANCELLOR.
Panel on Takeovers and Mergers See CIIT CODE ON TAKEOVERS AND MERGERS.
paperless trading See ELECTRONIC DATA INTERCHANGE.
parallel import A product bought in one state and imported into another by the
purchaser, often to take advantage of price differences between states; such
products are also known as grey market goods. Parallel importation usually takes
place outside supplier-authorized official distribution networks. Within the EU
measures taken to prevent parallel imports in the Single Market will infringe
*Article 81 of the Treaty of Rome (see EXPORT BANS). While it is permitted to restrict
an exclusive distributor from soliciting sales outside his exclusive area, absolute
territorial protection may not be given, either by contract terms or by conduct or
oral arrangements.
paramount adj. (in land law) Superior; having or denoting a better right or title.
paramount clause See BILL OF LADING.
parcels pl. n. 1. Plots of land. 2. See DEED.
pardon n. The withdrawal of a sentence or punishment by the sovereign under the
*prerogative of mercy. Once a pardon is granted, the accused cannot be tried and if
he has already been convicted, he cannot be punished. The responsibility is upon
him, however, to plead the pardon as a bar to prosecution or punishment; if he does
not do so as soon as possible, he may be held to have waived it. A person may also be
granted a reprieve, i.e. the temporary suspension of a punishment (for example, if
he becomes insane after sentence is passed).
parent n. The mother or father of a child. The term also includes adoptive parents
(see ADOPTION) but does not usually include *step-parents. At common law parents
have parental rights over their children while they are minors, which include the
right to physical control of the child, to control their education and determine their
religion, to consent to medical treatment, to administer their property, to represent
them in legal proceedings, and to discipline them reasonably. They also have
parental duties, notably to maintain and educate their children, which can be
legally enforced. Both parents exercise parental rights jointly, except in the case of
illegitimate children, over whom the mother has exclusive parental rights unless the
father has applied for *parental responsibility (he does, however, have a legal duty
to maintain the child: see CHILD SUPPORT MAINTENANCE). Parental rights decline as the
child grows older; in any dispute over their enforcement the *welfare of the child is
the paramount consideration. See also PARENTS' LIABILIIT; SECTION 8 ORDERS; SECTION 30
ORDER.
parental leave Time off work given to parents. The statutory provisions are
contained in the Maternity and Parental Leave Regulations 1999, which set down key
elements regarding such time off, although employers and employees are free to
agree an improved contractual scheme.
In order to exercise the right to parental leave the employee must have been
employed for a minimum of one year, must have or expect to have responsibility
for the child, and must take any leave for the purpose of caring for the child. Up to
13 weeks' parental leave is available in respect of any individual child; it must be
taken before the child is five years old. Adoptive leave (for employees who adopt a
child) is available on the same basis, with the proviso that the leave must be taken
within five years of the placement of the child (or before the child's 18th birthday,
whichever is earlier). In the case of a disabled child, leave may be taken any time up
to the child's 18th birthday; there are proposals to extend the period of this leave
from 13 to 18 weeks.
In the absence of any contractual agreement on the operation of parental leave,
the statutory provisions lay down default provisions. These state that leave must be
taken in blocks of a week or more and that the maximum annual leave allowance is
four weeks in respect of any individual child.
In order to exercise this right employees must give employers a minimum of 21
days' notice. Employers may postpone the leave but only if their business would be
unduly disrupted. Fathers and prospective adoptive parents who want to guarantee
that they can be present at the birth or placement of their child may book time off
work without postponement. No notice is required to be given by employees
returning to work, and on return employees are entitled to work in their same job.
Currently parental leave is unpaid, but this (and parental leave in general) is
currently under review. However, from March 2003 working fathers are to receive
the right to two weeks' paid paternity leave at the same flat rate as statutory
maternity pay (see MATERNIIT RIGHTS). Proposals are also underway to introduce paid
adoptive leave as from 2003. In addition to the introduction of parental leave in 1999,
provisions were introduced allowing for employees to take time off for domestic
emergencies. Employees are entitled to a reasonable amount of unpaid time off in
order to take action that is necessary in the following situations:
(1) To provide assistance on an occasion when a dependant falls ill, gives birth, or is
injured or assaulted.
(2)To make arrangements for the provision of care for a dependant who is ill or
injured, or in consequence of the death of a dependant.
(3)Because of the unexpected disruption or termination of arrangements for the
care of a dependant.
(4)To deal with an incident that involves a child of the employee and occurs
unexpectedly in a period during which an educational establishment the child
attends is responsible for him.
parental order See SECTION 30 ORDER.
parental responsibility All the rights, duties, powers, and responsibilities that
by law a parent of a child has in relation to the child and his or her property. The
concept was introduced by the Children Act 1989,replacing *custody. Parental
responsibility is automatically conferred on both parents if married, and on the
mother alone if not. An unmarried father can acquire parental responsibility either
by agreement with the mother or by applying to court for a *parental
responsibility order. In determining whether to grant such an order the court must
treat the child's welfare as its paramount consideration. Both parents retain parental
responsibility on divorce. Other persons may acquire parental responsibility by
virtue of being granted other orders. For example, anyone in whose favour a
residence order (see SECTION 8 ORDERS) is made acquires parental responsibility for the
duration of that order, and a *care order or an *emergency protection order confer
parental responsibility on the relevant local authority. In all these cases, parental
responsibility is shared with the parents. See also STEP-PARENT.
parental responsibility agreement A formal agreement between the mother
and unmarried father of a child conferring *parental responsibility on the father.
The agreement must be made on a set form, be signed and witnessed, and be
registered in the Principal Registry of the Family Division in London. Once made, the
agreement cannot be revoked by either party. Only a court may bring a parental
responsibility agreement to an end - on the application of either party with
parental responsibility or by the child himself if he has been given permission by
the court to apply.
parental responsibility order An order made by a court conferring *parental
responsibility on an unmarried father. In determining whether or not to make such
an order, the court must treat the child's welfare as its paramount consideration.
Courts will usually grant a parental responsibility order to a father who is able to
demonstrate some degree of commitment and attachment to his child. A parental
responsibility order may be revoked by a court.
parent company See SUBSIDIARY COMPANY.
parenting order An order, introduced by the Crime and Disorder Act 1998, that
requires the parent or guardian of a child under the age of 16 to comply, for a
period not exceeding 12 months, with such requirements as the court considers
necessary for preventing offences being committed by this child. Parents whose
children have been made the subject of a *child safety order may be required to
attend courses that will assist them with their parenting skills. The rationale behind
the introduction of such orders was that inadequate parental supervision is thought
to be strongly associated with youth offending.
parents' liability Parents are not liable for their children's torts, but they may be
liable for their own negligence in failing to supervise or train young children,
where the absence of supervision or training has led a child to cause damage to
others. In the case of older children, a parent can be vicariously liable for the torts
of a child employed as a servant or agent on ordinary principles of *vicarious
liability. There is no fixed age determining a child's liability for its own torts. A
child may, however, be too young to form the intention necessary for a particular
tort. In cases in which the negligence or contributory negligence of a child is in
question, the test applied is whether the child's conduct measured up to the
standard of care to be expected from an average child of that age.
Parents are not legally responsible for their children's crimes, although they may
have to pay their *fines.
parent with care See CHILD SUPPORT MAINTENANCE.
parish n. A *local government area in England (outside Greater London) consisting
of a division of a *district (though not all districts are so divided). All parishes have
meetings and many have an elected parish council, which is a *local authority with a
number of minor local governmental functions (e.g. the provision of allotments, bus
shelters, and recreation grounds). A parish council may by resolution call its area a
town, itself a town council, and its chairman the town mayor. The Local Government
and Rating Act 1997(effective from 19 May 1997) gives extra powers to parish
councils in relation to rights of transport and crime prevention.
Paris Treaty The treaty, signed in Paris on 18 April 1951, that formed the
*European Coal and Steel Community. Many of its provisions are similar to those of
the later *Treaty of Rome, establishing the EEC, for example in the fields of
*competition law and *state aid.
parking offences Offences relating to parking a motor vehicle. These include
parking a vehicle within the limits of a pedestrian crossing or wherever signs or
kerb markings indicate that parking is prohibited or restricted and failing to
comply with the regulations associated with the use of parking meters. If the
accused can show that road markings or signs indicating parking restrictions were
absent or deficient, he may be acquitted. Parking offences are punishable by fine
only; they are not subject to endorsement. See also OBSTRUCTION.
parlementaire n. [from French parlementer, to discuss terms; parley] An agent
employed by a commander of a belligerent force in the field whose function is to go
in person within the enemy lines for the purpose of communicating or negotiating
openly and directly with the enemy commander.
Parliament n. The legislature of the UK,consisting of the sovereign, the House of
Lords, and the House of Commons. Under the Parliament Act 1911, the maximum
duration of any particular Parliament is five years, after which its functions expire.
In practice, a Parliament's life always ends by its earlier dissolution by the
sovereign under the *royal prerogative; this proclamation also summons its
successor. The date of dissolution is chosen by the Prime Minister. The life of a
Parliament is divided into sessions, normally of one year each, which are ended when
Parliament is prorogued (also under the prerogative) by a royal commission. Each
House divides a session into sittings, normally of a day's duration, which end when a
motion for adjournment is passed. The functions of Parliament are the enactment
of legislation (see ACT OF PARLIAMENT), the sanctioning of taxation and public
expenditure, and the scrutiny and criticism of government policy and
administration. See alsoSOVEREIGNTY OF PARLIAMENT.
Parliamentary Commissioner for Administration (Parliamentary
Ombudsman)An independent official appointed under the Parliamentary
Commissioner Act 1967 (as amended by the Parliamentary and Health Service
Commissioners Act 1987) to investigate complaints by individuals or corporate bodies
of injustice arising from maladministration by a government department or by
certain nondepartmental public bodies, such as the Arts Council of England and the
*Housing Corporation. Appointment of the Commissioner is by the Crown on the
Prime Minister's advice. The Commissioner may investigate complaints only if they
are submitted to him in writing through a Member of Parliament; investigation is
entirely at his discretion. If he upholds a complaint and it is not remedied, he
reports this to Parliament. Complaints of maladministration by devolved bodies in
Wales and Scotland are investigated by the Welsh Administration Ombudsman and
the Scottish Parliamentary Commissioner for Administration, respectively. See also
HEALTH SERVICE COMMISSIONERS.
parliamentary committees See COMMITTEE OF THE WHOLE HOUSE; GRAND
COMMITTEES, SCOTTISH AND WELSH; JOINT COMMITTEE ON STATUTORY INSTRUMENTS; STANDING
COMMITTEE; SELECT COMMITTEE.
parliamentary counsel Civil servants (barristers or solicitors) who draft
government Bills, government amendments to Bills, and any procedural motions
required in connection with the passing of Bills. In 1996 proposals to contract out
this activity to private practice lawyers were considered.
Parliamentary Ombudsman See PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION.
parliamentary papers Papers published on the authority of either House of
Parliament. They include Bills, the Official Reports of Parliamentary Debates (see
HANSARD), and reports of parliamentary committees.
parliamentary privilege Special rights and immunities enjoyed by the Houses
of Parliament and their members to enable them to carry out their functions
effectively and without external interference. They are conferred mainly by the
common law but partly by statute; they can be extended by statute but not by the
resolution of either House.
The Commons have five main privileges. (1) The right of collective access to the
sovereign through the Speaker. (2) The right of individual members to be free from
civil (but not criminal) arrest. Since the abolition of imprisonment for debt, this
privilege has been of only minor significance, but it would still shield a member
against (for example) imprisonment for disobeying a court order in civil
proceedings. (3) The individual right to freedom of speech. This substantial privilege
means that a member cannot be made liable either civilly (e.g. for defamation) or
criminally (e.g, for breach of the Official Secrets Acts) for anything said by him in
the course of debates or other parliamentary proceedings. Under the Parliamentary
Papers Act 1840 members are also not liable for statements repeated in reports
published on the authority of the House. (4) The collective right to exclusive control
of its own proceedings, so that it can (for example) exclude the public, prohibit
reporting, and expel any member whom it may consider unfit to sit. (5) The
collective right to punish for any breach of privilege or other contempt. Examples
of breaches of privilege are initiating defamation proceedings in respect of
privileged words and the reporting of secret proceedings. Other contempts include
any conduct prejudicial to the proper functioning or dignity of the House, e.g. by
refusing to give evidence to a committee, bribing members, or insulting the House.
Members may be punished for contempt by expulsion, suspension, or imprisonment;
others by reprimand or imprisonment. Imprisonment is terminated by prorogation.
Whether or not particular conduct amounts to a contempt, and if so what
punishment (if any) is appropriate, is considered by the Committee of Privileges,
whose report the House is free to accept or reject after debate.
The privileges of the Lords are similar, except that members have an individual
right of access to the sovereign and the House can fine for contempt and imprison
for a fixed term, which is not affected by prorogation.
parol contract See SIMPLE CONTRACT.
parole (release on licence) n. The conditional *release of a prisoner from prison.
Under the Criminal Justice Act 1991, anyone sentenced to imprisonment for between
12 months and 4 years must be released on licence after serving one-half of the
sentence; those imprisoned for 4 years or more must be paroled after serving twothirds
of their sentence and may be considered for parole after serving half of the
sentence. Local review committees in each area consider all cases and advise the
Home Secretary, who may either release the prisoner himself or refer his case to the
Parole Board. This Board includes a past or present judge, a psychiatrist, a person
experienced in caring for discharged prisoners, and a person trained in the
treatment of offenders. The Board considers reports and evidence relating to the
prisoner (whom it may interview) and defines the conditions under which he may be
released. Under the Crime (Sentences) Act 1997, the Parole Board (rather than the
Home Secretary) has responsibility for the release of juveniles convicted of murder.
Parole remains in force until the prisoner would have served three-quarters of his
sentence had he not been released. The Home Secretary may recall him to prison at
any time, either on the recommendation of the Parole Board or whenever he thinks
it necessary to do so without consulting the Board (but the prisoner has the right to
appeal to the Parole Board).
If a prisoner on parole commits an offence during the period of his original
sentence, he may have to serve any part of the original sentence still outstanding. In
such cases limitations are imposed on his right to be considered again for parole.
parol evidence Evidence given orally, as opposed to *documentary evidence.
parol evidence rule The rule that parol evidence (i.e, oral evidence) cannot be
given to contradict, alter, or vary a written document (such as a judicial record or a
contract) unless there are allegations of fraud or mistake. In civil cases there is no
longer a strict adherence to this rule.
parol lease A lease that is made either orally or in writing, but not by deed, and
fulfils certain conditions. These are that it takes effect immediately it is made; it is
for a period less than three years; and it is at the full market rent. *Periodic
tenancies usually fulfil these conditions. Parol leases are the exception to the general
rule that leases are not legally enforceable unless they are made by deed.
Part 8 claim form A form of originating *process used in cases in which the
issues are likely to be ones of law or the interpretation of documents. It should not
be used when disputed questions of fact are involved, for which proceedings begun
by normal claim form are more appropriate. A Part 8 claim form must state that
Part 8 of the Civil Procedure Rules applies and must set out the question the
claimant wants the court to decide or the remedy that he seeks. Any evidence relied
upon must be filed and served with the claim form. Part 8 claims are allocated as
<multi-track proceedings.
Part 20 claim A claim other than a claim by the claimant against the defendant.
It includes (1) a *counterclaim by the defendant against the claimant; (2)a
counterclaim by the defendant against a third party (i.e. a person who is not a party
to the current proceedings), normally with the claimant; and (3) a claim by the
defendant for an *indemnity or a *contribution from either a third party or from a
party to the current proceedings. If the defendant to a claim alleges that a third
party is liable to indemnify him or contribute to any judgment, or is someone that
they seek to counterclaim against in addition to the claimant, he must bring that
party into the proceedings by issuing a Part 20 claim form. Once done, the third
party becomes known as the Part 20 defendant.
A defendant can issue a Part 20 claim form without requiring permission of the
court if it is issued before or at the time of the filing of his defence. Directions in
such a case will be dealt with as part of the normal system of *case management
appropriate to the track to which the case has been allocated. If the time in which
the defence must be filed has expired, permission is required from the court. This is
normally sought by the use of an application notice filed at court and supported by
evidence of reasons why the third party be introduced into the proceedings. If
granted, the court will issue directions at that time. In any event, the court will
consider further directions as to the future conduct of the proceedings when the
time for filing the defence to the Part 20 claim by the third party or co-defendant
has expired.
Part 36 offers and payments Under the "Civil Procedure Rules, offers and
payments made by parties in the pre-trial period in an attempt to encourage a
settlement out of court. A Part 36 payment (formerly called payment into court)
is made into the court; it can only be made once legal proceedings have started and
only in respect of money claims. A Part 36 offer (formerly called a Calderbank
letter or offer) can be made in the period before the start of proceedings or - in
respect of nonmonetary claims - after proceedings have started. Both procedures
place pressure on the other party to the litigation to settle.
In the case of a Part 36 payment, the other party is notified of the payment and
that it may accept or reject the payment as a settlement. In the event of a rejection
and the litigation proceeding to trial, the amount awarded is compared with the
amount paid in. If the amount awarded is less than the sum previously paid into
court, costs since the time of payment in will be awarded against the successful
claimant. Part 36 offers have a similar purpose and effect in that the court will
consider the contents of the offer when it considers the issue of costs, after finding
liability and settling the amount of damages.
partial loss (in marine insurance) Any loss of the subject matter of an insurance
policy other than an *actual total loss or a *constructive total loss. In the case of a
partial loss there is a lesser measure of indemnity than in the case of a total loss. See
also AVERAGE.
partibility n. (of chattels) See PARTITION OF CHATTELS.
participator n. See CLOSE COMPANY.
particular average See AVERAGE.
particular lien See LIEN.
particulars pI. n. Details of an allegation of fact made in civil proceedings. Details
of a claim (the particulars of claim) can be included in the *claim form or served
separately on the defendant. When an allegation is ambiguous or pleaded in
insufficient detail, the opposing party may make in writing (through the court) a
request for further information (formerly called request for further and better
particulars). The principal function of this procedure is to prevent *surprise.
parties pI. n. 1. Persons who are involved together in some transaction, e.g. the
parties to a deed or a contract. 2. Persons who are involved together in litigation,
either civil or criminal. See alsoJOINDER OF PARTIES.
partition n. 1. The division of a territory into two or more units, each under a
different government. 2. The division of supreme power over a territory between
different governments (e.g. federal and state). 3. The formal separation, effected by
deed, of land held in common ownership into parts, so that each co-owner takes his
part solely, beneficially, and free from any rights of the others. Partition of land
cannot be enforced without the consent of all the co-owners. 4. The transfer to
different companies of parts of a trade or undertaking (or two or more trades or
undertakings) of a company. This is usually by means of a distribution agreement or
a demerger under the Income and Corporation Taxes Act 1988. Compare PARTITION OF
CHATTELS.
partition of chattels The division between co-owners of chattels held in
undivided shares, so that each takes his part of the goods solely and absolutely. If
chattels are partible ii.e.capable of being divided), the court may order partition
under the Law of Property Act 1925 on the application of a co-owner.
partnership n. An association of two or more people formed for the purpose of
carrying on a business with a view to profit. Partnerships are governed by the
Partnership Act 1890. Unlike an incorporated *company, a partnership does not have
a legal personality of its own and therefore partners are liable for the debts of the
firm. On leaving the firm they remain liable for debts already incurred; they cease
to be liable for future debts if proper notice of retirement has been published. A
limited partnership is governed by the Limited Partnership Act 1907. It consists of
general partners, who are fully liable for partnership debts, and limited partners,
who are liable to the extent of their investment. Limited partners lose their limits
of liability if they take part in management. A partnership at will is one for which
no fixed duration has been agreed. Any partner may end the partnership at any
time provided that he gives notice of his intention to do so to all the other partners,
subject to any restriction in the partnership deed. See also LIMITED LIABILITY
PARTNERSHIP.
part performance A doctrine of equity that a contract required to be evidenced
in writing will still be enforceable even if it is not so evidenced provided that one of
the parties does certain acts by which the contract is partly performed. For an act to
bring the doctrine into play (i.e. a sufficient act of part performance) that act must
be performed by the person alleging the contract to exist and must relate
unequivocally to the contract; an example would be taking possession of property
alleged to have been sold (under a contract entered into before 21 September 1989) to
the person who takes possession. It is unclear whether mere payment of money is a
sufficient act of part performance.
This doctrine applied primarily to contracts for the sale of land. However, such
contracts entered into on or after 21 September 1989are required, under the Law of
Property (Miscellaneous Provisions) Act 1989, to be in writing (not merely evidenced
in writing) if they are to be valid. Acts of part performance will not, as such,
validate an unwritten land contract, although they may, in particular circumstances,
give rise to a proprietary *estoppel or a *constructive trust.
party wall A wall or fence in premises that is shared with another owner or
tenant in adjacent premises. The Party Wall Act 1996,which came into force on 1
July 1997, imposes obligations on owners carrying out works on party walls or
fences. They must notify the adjoining owner or tenant in advance if they intend to
repair a party wall or fence or build on a boundary; any damage that occurs as a
result of the work must be repaired.
passing off Conducting one's business in such a way as to mislead the public into
thinking that one's goods or services are those of another business. The commonest
form of passing off is marketing goods with a design, packaging, or trade name that
is very similar to that of someone else's goods. It is not necessary to prove an
intention to deceive: innocent passing off is actionable.
passport n. A document, issued under the *royal prerogative by the Home Office
through its executive agency the Passport Agency, that provides prima facie
evidence of the holder's nationality. It is not required by law for leaving the UK,but
it is required for entry into most other countries. Within the European Union, ED
nationals are sent through quicker channels of entry although they are still subject
to occasional passport checks, despite the Schengen Agreement reached by most EU
states to abolish internal border checks, which came into force on 26 March 1995,
and the creation of the *Single Market in the ED,which came into force on 1
January 1993.Concerns such as drug smuggling have made member states of the ED
reluctant to abandon internal controls. lts issue is purely discretionary and the
government may withdraw or revoke a passport at will. Under the Immigration Act
1988,a person seeking entry into the UKon the basis of his right of abode there
must either produce an appropriate passport or a certificate showing such an
entitlement, issued by or on behalf of the UK government. The British Visitor's
Passport has been abolished and only a full British passport is adequate for foreign
travel. Children need their own passports. However, children included on a parental
passport before 5 October 1998may continue to travel abroad on that passport
either until reaching the age of 16 or until the passport is submitted for an
amendment. The English courts have power to order the surrender of a foreign
passport to protect the interest of children who might otherwise be removed
unlawfully from the UK by a foreign parent. Similar powers to order surrender of a
UKpassport are contained in the Family Law Act 1986.
past consideratÑ–on See CONSIDERATION.
pasture n. A *profit Ii prendreor *common conferring rights of grazing over
another's land or on common land, which may be limited to particular types of
animal, to fixed numbers of animals, or (in the case of a common) to as many
animals as the land will support.
patent n. The grant of an exclusive right to exploit an invention. In the UK
patents are granted by the Crown through the Patent Office, which is an executive
agency of the Department of Trade and Industry. An applicant for a patent (usually
the inventor or his employer) must show that the invention is new, is not obvious,
and is capable of industrial application. An expert known as a patent agent often
prepares the application, which must describe the invention in considerable detail.
The Patent Office publishes these details if it grants a patent. A patent remains valid
for 20 years from the date of application (the priority date) provided that the
person to whom it has been granted (the patentee) continues to pay the
appropriate fees. During this time, the patentee may assign his patent or grant
licences to use it. Such transactions are registered in a public register at the Patent
Office. If anyone infringes his monopoly, the patentee may sue for an *injunction
and *damages or an *account of profits. However, a patent from the Patent Office
gives exclusive rights in the UKonly: the inventor must obtain a patent from the
European Patent Office in Munich and patents in other foreign countries if he
wishes to protect the invention elsewhere.
patent agent See PATENT.
patent ambiguity See AMBIGUITY.
patent defect See DEFECT.
patentee n. A person who has been granted a *patent.
Patents County Court A *county court designated by the Lord Chancellor under
the Copyright, Design and Patents Act 1988 to exercise a special jurisdiction in cases
relating to patents and designs. The Patents County Court provides a cheaper and
quicker forum for patent and design cases than the *Patents Court of the High
Court. Patents agents and solicitors, as well as barristers, have *rights of audience
there.
Patents Court Collectively, the "Patents County Court and the Patents Court of
the High Court. The latter forms part of the "Chancery Division of the High Court,
having jurisdiction over matters arising under the Patents Acts 1949-77, the
Registered Designs Acts 1949-61, and the Defence Contracts Act 1958,as well as the
inherent jurisdiction of the High Court. Two "puisne judges of the Chancery
Division with special experience of patent law are assigned to hear cases, but they
will be assisted by special scientific advisers.
paternity leave See PARENTAL LEAVE.
patrial n. See IMMIGRATION.
pawn (pledge) n. An item of goods transferred by the owner (the pawnor) to
another (the pawnee) as security for a debt. (The word is also used for the transfer
itself.) A pawn involves a *bailment and the pawnor remains owner of the goods;
the pawnee is liable for failure to take reasonable care of them. If the pawnor fails
to repay the loan at the agreed time, the pawnee has the right at common law to
sell the pawn; he must account to the pawnor for any surplus after discharging his
debt. Pawnbrokers are dealers licensed to lend money at a specified rate of interest
on the security of a pawn. Pawnbroking is regulated by provisions of the Consumer
Credit Act 1974(replacing the Pawnbrokers Acts 1872 and 1960) with regard to such
matters as pawn receipts, rates of interest, redemption period and procedure,
consequences of failure to redeem, and realization of the pawn. Under the Act, a
pawn can be redeemed at any time within six months, or longer if agreed by both
parties. At the end of the redemption period ownership of the pawn passes to the
pawnbroker if the redemption period is six months and the value of the debt is .25
or less. If it is more than .25 the pawnbroker may sell the pawn after giving the
pawnor notice, but the pawnor may still redeem the pawn at any time until it is
sold. The pawnbroker must account to the pawnor for any surplus from the
proceeds of sale after discharging his debt but he may claim any balance of the debt
if the proceeds are insufficient.
Pay As You Earn (PAYE) A system for collecting *income tax in which the
employer deducts tax direct from the employee's pay. The Inland Revenue gives
every employee a code number, which the employer uses, together with tax tables,
to work out how much tax to deduct (see PAYE WEEK NUMBER). The employer is then
responsible for paying the tax to the Inland Revenue by the 19th day of each month.
PAVE See PAY AS YOU EARN.
PAVE week number One of a series of consecutive numbers given to successive
seven-day periods within the tax year, used by employers in the calculation of tax
due under *Pay As You Earn. Thus, Week 1 is the period 6-12 April inclusive, Week 2
is 13-19 April, and so on. The employer uses the week number in conjunction with
the employee's tax code to determine his tax-free pay for the current tax year to
date. This in turn is used to calculate the tax due. The week number relates to the
period in which the pay day occurs, not necessarily the period in which the pay was
earned.
payment by post The payment of a debt by the posting of notes, a cheque, or
some other negotiable instrument. If the letter is lost in the post, the debt is not
discharged unless the creditor has expressly or by implication requested payment by
post and the debtor has sent a properly addressed letter.
payment in due course Payment made at or after the *maturity of a *bill of
exchange to the holder of the bill by a payer in good faith and without notice that
the holder's title to the bill is defective. A bill is discharged by payment in due
course by or on behalf of the drawee or acceptor. When a bill is paid by the drawer
or endorser it is not discharged and the party paying may have rights on it.
payment into court The payment by a defendant, into an account maintained by
the court, of a sum in satisfaction of any or all of the claims made against him.
Under the *Civil Procedure Rules, this is now referred to as Part 36 payment. See
PART 36 OFFERS AND PAYMENTS.
payroll giving scheme A scheme for employees to give donations to charities by
direct deduction from their pay. The employees receive tax relief on donations, and
the government adds a further 10%to such gifts for three years from April 2000.
The employer deducts the donation direct from the employee's wages or salary and
pays it to the charity of the employee's choice through an agency.
pay statement See ITEMIZED PAY STATEMENT.
PC See PRIVY COUNCIL.
PCT See PRIMARY CARE TRUST.
peaceful assembly See FREEDOM OF ASSOCIATION.
peaceful enjoyment of possessions A right set out in Article 1 of the First
Protocol to the European Convention on Human Rights and now part of UK law as a
consequence of the *Human Rights Act 1998. This right is a *qualified right; as such,
the public interest can be used to justify an interference with it providing that this
is prescribed by law, designed for a legitimate purpose, and proportionate. Therefore
the state may deprive individuals of their possessions and control to the use of
property providing that this is prescribed by law, in the public interest, and
proportionate.
pecuniary legacy See LEGACY.
penal notice See CONTEMPT OF COURT.
penal statute A statute that creates a criminal.offence or provides for any.
penalty (e.g.a forfeiture) enforceable in civil proceedings. It is subject to strict
construction (see INTERPRETATION OF STATUTES).
penalty n. 1. A *punishment for a crime. A penalty must be clearly stated before
it can be enforced. When statute creates an offence and specifies a penalty without
saying how the offence is to be tried, there may be an implication that it is to be
imposed by a magistrates' court. Article 7 of the European Convention on Human
Rights forbids the use of retrospective criminal penalties, and this prohibition is
now part of UK law as a consequence of the *Human Rights Act 1998. 2. A sum
specified in a contract as payable on its breach but not constituting a genuine
estimate of the likely loss. See DAMAGES.
penalty points See TOTTING UP.
pendente lite [Latin] Until trial. When a will or the right to administer an estate
is being disputed, the court may if necessary appoint an administrator pendentelite
to deal with the estate until the proceedings have been resolved.
pending action Proceedings in court that relate to land or to some interest in it.
The claimant should register the pending action as a land charge (see REGISTRATION OF
ENCUMBRANCES) as soon as the proceedings begin. If he fails to do this a purchaser
acquiring the land without knowing of the action will not be bound by the
outcome.
pension n. Income paid to a person who has reached the state *retirement age
(retirement pension) or who has retired from employment and benefits from a
company or personal pension scheme. From April 2001 the state retirement pension
was .75.50 per week for a single person and .115.90 for a married couple. The *State
Earnings Related Pension Scheme (SERPS) can boost state pensions for employees
with sufficient national insurance contributions. Those moving abroad receive only
a frozen state pension. Contributions to a company pension scheme are made net of
tax within Inland Revenue limits but only (for newer pensions) on income up to an
earnings cap of .91,800 (in 2000-01). Employees may, up to that limit, pay up to 15%
of their salary into a company pension scheme (including any *additional voluntary
contributions) and may take a maximum pension of two-thirds their final salary on
retirement. Maximum contributions for the self-employed and others in personal
pension schemes are subject to the earnings cap for company pensions but vary
according to age, ranging from 17.5% of net relevant earnings for those aged 35 or
less at the beginning of the tax year to 40% for those aged 61 and over. Pensions paid
are taxable in the hands of the recipient, although a proportion of the fund
accumulated can be taken as a tax-free lump sum on retirement. The balance is used
to purchase a compulsory *annuity. See also STAKEHOLDER PENSION.
pension earmarking A provision for financial relief on granting a divorce or
judicial separation that, when the pension of one spouse (the main earner) becomes
payable, part of its benefits will be paid to the other spouse. Thus on the death of
the main earner, all payments will cease. See also PENSION SHARING ORDER.
pension sharing order An order that may be made by the court on granting a
divorce, whereby the spouse with little or no pension either becomes a member of
the main earner's pension scheme in her or his own right or, alternatively, receives a
transfer of a designated percentage of this scheme into her or his own pension
arrangement. Unlike *pension earmarking, pension sharing does not apply to
*judicial separation.
PEP See PERSONAL EQUITY PLAN.
peppercorn rent An insignificant rent reserved for the purpose of showing that
a lease or tenancy is granted for valuable *consideration.
per autre vie See ESTATE PUR AUTRE VIE.
per capita [Latin: by heads] For each person. Distribution of an estate or fund per
capita is an equal distribution in the specified shares among all those entitled to it.
Compare PER STIRPES.
per curiam (per cur.) [Latin] By the court. A proposition per curiam is one made by
the judge (or, if there is more than one judge, assented to by all).
peremptory challenge See CHALLENGE TO JURY.
peremptory norm See JUs COGENS.
peremptory pleas See PLEAS IN BAR.
perfect and imperfect rights Legally recognized rights. Perfect rights are
enforceable through court action but imperfect rights are not.
perfect trust See EXECUTED TRUST.
performance bond See BOND.
performance of contract The carrying out of obligations under a contract.
Performance by both parties discharges the contract completely; performance by
one party discharges him alone. The rules relating to performance distinguish
between a divisible contract and an indivisible (or entire) contract In a divisible
contract the obligations of the parties are independent of each other, so that one
party can demand performance by the other without rendering performance
himself. Thus a landlord, though liable to be sued by his tenant for not carrying out
a repairing covenant, is not prevented by his own default from enforcing the
tenant's covenant to pay rent. Most contracts, however, are indivisible, i.e. the
obligations of the parties are interdependent. Neither party can demand
performance unless he himself either has performed or is ready and willing to do so.
At common law, complete and precise performance was originally required, so that
a party who rendered anything short of this (for example, a builder who carried out
the contract work, but defectively in some respects) could recover nothing for his
efforts. This extreme position was subsequently modified by the doctrine of
substantial performance. A party who has substantially performed his obligations
can now recover the contract price, reduced by damages awarded to the other party
in respect of the defects.
A tender of performance is the equivalent of performance, so that a seller who
tenders the correct goods is discharged from the contract (and entitled to damages
for breach) if the buyer rejects them. Vicarious performance (e.g. by a
subcontractor) is good performance, except when personal performance is
demanded by the contract. See also PART PERFORMANCE; SPECIFIC PERFORMANCE.
performers' rights The rights of performers, such as musicians, in the live
performance of their works, to prevent others recording their performances. The
rights are also infringed if anyone broadcasts a qualifying performance under the
Copyright, Designs and Patents Act 1988without consent or imports a recording of
such a performance knowing that it was an illicit recording. The right is owned by
the performer, although in commercial practice many performers enter into
exclusive recording contracts in relation to their works, which give recording rights
to a record company; in this case the company obtains *copyright in the sound
recording and the performer loses his rights for the duration of the contract. The
Copyright Term Directive 93/98 harmonized EU law in this area. Performers' rights
must be protected under national law; the right must exist for 50 years from the
end of the calendar year in which the performance takes place.
perils of the seas One of the heads of risk included in a marine insurance policy.
It covers the insured against loss caused by fortuitous accidents or casualties of the
seas, e.g. such events as unusual violence of wind or waves, striking submerged
rocks, and collisions with other ships. The ordinary action of wind and waves in
causing wear and tear is not, however, regarded as a peril of the seas.
per incuriam [Latin] Through lack of care. A decision of a court is made per
incuriam if it fails to apply a relevant statutory provision or ignores a binding
precedent. In criminal cases a decision made per incuriam will usually result in the
conviction being quashed.
periodic tenancy A tenancy in which rent is payable at fixed intervals, usually
weekly, monthly, quarterly, or yearly. The tenancy continues automatically from one
period to another until terminated by *notice to quit. Periodic tenancies can be
created by express agreement, orally or in writing. Alternatively they can be created
by implication when rent is accepted by the owner of the land from the person who
occupies it. This may arise, for example, when a tenant under a *fixed-term tenancy
remains in possession at the end of his tenancy and the landlord continues to accept
rent from him. The length of notice required to terminate the tenancy is usually
the same as one of the periods of the tenancy.
perished goods Under the Sale of Goods Act 1979, goods under a contract of sale
that have been either totally destroyed or so damaged that they no longer fit the
contract description. The Act provides that a contract is void if it relates to specific
goods that, unknown to the seller, have perished before it is made. If the goods
perish after the contract is made, this event will make the contract void unless the
risk has by then passed to the buyer (see TRANSFER OF RISK). These two propositions
give statutory recognition to common-law rules relating to *mistake and
*frustration of contract, respectively.
perjury n. The offence of giving false evidence or evidence that one does not
believe to be true (even if it is in fact the truth). It is punishable by up to seven
years' imprisonment and/or a fine. The offence may be committed by any witness
who has taken the oath or affirmed, by the defendant at any stage of the trial, and
by an interpreter. Perjury is only committed, however, in judicial proceedings, which
include any proceedings before a court, tribunal, or someone with the power to hear
evidence on oath (e.g. Commissioners of Income Tax hearing appeals against tax
assessments). The evidence given must be relevant to the proceedings and must be
given with knowledge that it is false or recklessly.
The Perjury Act 1911 also creates various offences related to perjury. These include
making a false statement on oath in nonjudicial proceedings and making a false
statement or declaration relating to marriage (e.g. to obtain a licence to marry or
make an entry in a register of marriage) or to the registration of a birth or death.
These offences are punishable by up to seven years' imprisonment on indictment.
The offences of making a false statement in a statutory declaration or in any
account, balance sheet, or document required to be made by Act of Parliament are
punishable by up to two years' imprisonment.
See also SUBORNATION.
Permanent Court of Arbitration A standing panel of jurists established in 1900
under the 1899 *Hague Convention for the pacific settlement of disputes. Despite
the name, it is neither permanent nor is it a court. Rather, it is a mechanism for
promoting the creation of arbitration tribunals as required. Although resort to the
Court is infrequent, it is by no means redundant: its facilities have been used, for
example, by the Iran-United States Claims Tribunal, established in 1981.
permissive waste A kind of *waste that occurs when a tenant fails to maintain
the property he leases and allows it to deteriorate.
per my et per tout [Norman French: by the half(?) and by all (the meaning of my
is uncertain)]Denoting the unity of possession that is an essential characteristic of
joint ownership of land. See also JOINT TENANCY.
perpetual injunction See INJUNCTION.
perpetual trusts See RULE AGAINST PERPETUAL TRUSTS.
perpetuating testimony A procedure for the recording of evidence in civil cases
in which there is a danger that it might be lost (e.g.because of the death of a
witness) before it can be used in a future action. It is rarely ordered.
perpetuity n. See RULE AGAINST PERPETUITIES.
per quod consortium amisit [Latin: by which he lost the benefit of her society]
See CONSORTIUM.
per quod servifium amisif [Latin: by which he lost services] See LOSS OF SERVICES.
persistent offender Formerly, a person whose previous criminal record made
him liable to be given an extended sentence of imprisonment. Compare REPEAT
OFFENDER.
personal Act See ACT OF PARLIAMENT.
personal chattel See CHATTEL.
personal contract See DERECOGNITION.
personal-credit agreement An agreement made between an individual (the
debtor) and any other person (the creditor) by which the creditor provides the
debtor with credit of any amount. Personal-credit agreements (a concept under the
Consumer Credit Act 1974) exclude loans, etc., to companies. See also CONSUMER-CREDIT
AGREEMENT.
personal eql.lity plan (PEP) A scheme to encourage individuals to invest in EU
quoted companies and in qualifying equity-based investment trusts, which was
introduced in January 1987. From 6 April 1999 no new subscriptions can be made to
PEPs,but existing PEPs can continue after this date. The PEP is managed by an
authorized investment manager; tax credits on dividends (paid before 5 April 2004)
and income tax deducted at source are reclaimed by the manager. There were
formerly two types of PEP,general and single-company, but in April 2001 this
distinction was abolished. In addition. from 6 April 2001, the restriction of
investments to EU companies is abolished, allowing investors to transfer their PEP
funds to formerly "nonqualifying" companies. No income tax or capital gains tax is
payable on income or gains generated by the PEP, unless interest of over .180on
cash deposited in the PEP is withdrawn in anyone year. PEPs are being replaced by
*Individual Savings Accounts (ISAs).
personal property (personalty) All *property that does not comprise land or
incorporeal *hereditaments.
personal protection order An order formerly made under the Domestic
Proceedings and Magistrates' Courts Act 1978for the protection against violence of a
spouse or a child of the family. Such protection is now provided by a
*nonmolestation order under the Family Law Act 1996.
personal representative A person entitled to deal with a deceased person's
estate in accordance with his will or under the rules relating to intestacy. Personal
representatives include *executors and *administrators of all descriptions.
personal service The *service of a document in litigation effected by leaving a
copy of the document with the person to be served. It is often wrongly supposed
that it is necessary to touch the person to be served with the document, but it is in
fact sufficient to leave it in his presence having informed him of its nature. Most
documents required to be served personally can now be served by post.
personalty n. See PERSONAL PROPERTY.
personal union An arrangement in which two or more states share a single head
of state. A personal union does not create a single international person; rather, each
state retains its separate legal personality. For example, in 1603James VI of Scotland
became monarch of England (styled as James I) but continued to be monarch of
Scotland (styled as James VI).
persona non grata [Latin: an unacceptable or unwelcome person] A *diplomatic
agent who is unacceptable to the receiving state. The sending state should recall
such an agent; if this fails to occur, the host state may ignore the presence of the
agent or expel him from its territory.
per stirpes [Latin: by the roots] According to descent. When property in an estate
or fund is distributed per stirpes, beneficiaries a generation removed from the
primary class of beneficiaries receive between them the share attributable to their
ancestor. For example, a will may leave property to A and B in equal shares with
provision that if either predeceases the testator, the deceased beneficiary's children
take his share in equal shares per stirpes. If, on the testator's death, both A and B
have already died, A leaving two children and B three, A's children will each receive
a quarter of the property, and B's children one-sixth each. Compare PER CAPITA.
persuading to murder The statutory offence, which is punishable by a
maximum sentence of life imprisonment, of persuading or encouraging any person
to murder anyone else. This offence is committed even by a foreigner temporarily
in England who persuades someone to commit a murder abroad (such a person
would not normally be guilty of *incitement), and thus applies to the activities of
international terrorist organizations (see TERRORISM).
persuasive authority A decision or other pronouncement of law that, under the
doctrine of *precedent, a court may but need not apply when deciding the case
before it. Persuasive authorities include decisions of courts of equal or lesser
standing, decisions of courts outside the English legal system (particularly, courts of
Commonwealth countries having systems based on the common law), *obiter dicta,
and the opinions of eminent textbook writers.
perverse verdict A *verdict of a jury that is either entirely against the weight of
the evidence or contrary to the judge's direction on a question of law.
perverting the course of justice Carrying out an act that tends or is intended
to obstruct or defeat the administration of public justice. Common examples are
inventing false evidence to mislead a court (in either civil or criminal proceedings)
or an arbitration tribunal, making false statements to the police, stealing or
destroying evidence, threatening witnesses, and attempting to influence jurors. The
common-law offence of perverting the course of justice overlaps with certain forms
of *contempt of court and with the separate offence of tampering with witnesses.
It is not an offence, however, to offer money to someone to persuade him not to
proceed with an action in the civil courts; nor is it an offence to offer to pay
reasonable compensation to the victim of a crime, if he will agree not to take
criminal proceedings. However, once he has made a statement to the police in
connection with possible proceedings, it is an offence to attempt to induce him to
withdraw or alter his statement.
petition n. A written application for a legal remedy or relief that is only available
if statute or rules of procedure permit it. Examples are a petition for *divorce, a
*bankruptcy petition, an *election petition, or a petition for winding up a company
(see COMPULSORY WINDING-UP).
petition of right See CROWN PROCEEDINGS.
petroleum revenue tax A tax levied on the profits from sales of oil and gas
extracted in the UK or on the continental shelf. The rate of tax (from 1 July 1993) is
50%,and the tax is abolished for new oilfields that get development consent on or
after 16 March 1993.
petty sessions A court of summary jurisdiction now known as a *magistrates'
court. The term was formerly used to denote a meeting of two or more *justices of
the peace other than a general or *quarter sessions. A petty-sessions area is a
geographical area for certain purposes of magistrates' court administration.
philanthropic purposes Purposes that are narrower than *benevolent purposes
but wider than charitable purposes. See CHARITABLE TRUST.
picketing n. Attendance by employees and their trade union representatives at or
near a place of work for the purpose of persuading others to work or not to work,
or to exchange information, in contemplation or furtherance of a *trade dispute.
There is no specific legal right to picket, nor any prohibition on picketing, but there
is a concept of lawful picketing in the Trade Union and Labour Relations
(Consolidation) Act 1992.Pickets have no immunity from prosecution for
committing criminal offences and they have no right to compel others to stop or to
listen to the pickets' views. However, employees and their trade union
representatives picketing their own place of work are immune from civil legal
action for inducing others to break commercial or employment contracts with the
employer involved in the dispute. Such immunity extends to persons engaged in
secondary picketing in certain circumstances. Secondarypicketing occurs when the
premises of an employer who is not an immediate party to the dispute are picketed.
Persons picketing customers or suppliers of the employer in dispute have immunity,
provided that they are likely to achieve their principal purpose of disrupting their
own employer's trade with the employer in dispute. Thus in a dispute between an
employer (A) and his workers, A's own employees may picket A's premises and
employees of A's supplier (B) may picket B's premises (to prevent supplies reaching
A), with the benefit of immunity from certain types of civil legal action.
When an employer tries to avoid the impact of the dispute by transferring
business to his associated employer, the latter and his customers and suppliers may
be picketed. Again, the pickets will have immunity if they are likely to achieve their
principal purpose of disrupting the supply of goods or services transferred. All
pickets lose their immunity if the action is taken without being first authorized by
a ballot of the members of the union involved, or if the reason for the action is that
the employer is employing a person who is not a trade union member.
"Flying pickets", who are neither employees nor trade union representatives of
employees at the workplace picketed, have no immunity. The courts will grant
injunctions to stop or prevent unlawful picketing. A *code of practice on picketing
is published by the Department for Work and Pensions.
It is arguable that the incorporation of the European Convention on Human
Rights into the English law via the *Human Rights Act 1998 will impact on the law
affecting picketing. Article 10, the right of *freedom of expression, and Article 11,
the right to freedom of peaceful assembly (see FREEDOM OF ASSOCIATION), could be used
to challenge some of the existing restrictions laid down in Engish law. As picketing
is a form of public demonstration (in an industrial context) the imposition of
restrictions could raise the civil-liberties aspects of such restrictions sufficiently to
amount to breaches of either or both of these Articles. The common law may
therefore be compelled, in the fullness of time, to develop a peaceful right of
assembly in respect to the public highway.
piracy n. 1. (piracyjure gentium) Any illegal act of violence, detention, or robbery
committed on a private ship for personal gain or revenge, against another ship,
people, or property on the high seas. Piracy may also be committed on or against an
aircraft. Piracy also includes operating a pirate ship or aircraft and inciting or
assisting any other act of piracy. However, acts committed for political purposes are
not piracy; nor are any acts committed by a warship or government ship or aircraft.
Piracy is an international crime and all nations may exercise jurisdiction over
pirates, regardless of the nationality of the ship or aircraft or the pirates. A ship or
aircraft involved in piracy is also subject to seizure by any state. British courts have
traditionally exercised such jurisdiction, and the power to do so is confirmed in the
Tokyo Convention Act 1967.
English municipal law has created certain offences of piracy that are not covered
by international law, but they are not subject to the jurisdiction of the English
courts unless committed on board a British ship or within British territorial waters.
Examples of such offences are revolt by the crew of a ship against their master and
hijacking of the ship by the crew. These offences, if tried as piracy, are subject to
life imprisonment (the death penalty for piracy accompanied by acts endangering
life, or by an assault with intent to murder, has been abolished; see CAPITAL
PUNISHMENT).
2. (in marine insurance) One of the risks covered by a marine insurance policy,
which extends beyond the criminal offence to include a revolt by the crew or
passengers and plundering generally.
3. Infringement of *copyright, *trade marks, or other *intellectual property rights.
The owner's usual remedy is to obtain an *injunction to end the infringement,
although piracy is often also a criminal offence.
piscary (fishery) n. A *profit a prendreor *common conferring the right to take
fish from water on another's land.
place of safety order See EMERGENCY PROTECTION ORDER.
plaint n. Formerly, a statement in writing of a cause of action, used to initiate
actions in the county court
. Under the Civil Procedure Rules, it has been replaced by
the *claim form.
plaintiff n. See CLAIMANT.
planning permission See TOWN AND COUNTRY PLANNING••
plant n. See MACHINERY AND PLANT.
pic (public limited company) See LIMITED COMPANY; PUBLIC COMPANY.
plea n. 1. A formal statement in court by or on behalf of an accused person as a
response to the charge made against him. See also GUILTY; NOT GUILTY; PLEAS IN BAR.
2. A defendant's answer to a claimant's declaration in an action at common law.
plea bargaining An agreement between the prosecution and the defence by
which the accused changes his plea from not guilty to guilty in return for an offer
by the prosecution (for example, to drop a more serious charge against the accused)
or when the judge has informally let it be known that he will minimize the
sentence if the accused pleads guilty. Any negotiations taking place between the
judge and defence counsel must be in the presence of the prosecuting counsel: the
accused is not a party to the negotiations. The accused must be allowed to make up
his own mind freely about the proposals.
plead vb. To make a *plea.
pleading n. In colloquial usage, the claim form, defence, or any other document
used in civil proceedings. The *Civil Procedure Rules have rendered this term
obsolete, and it no longer has any formal meaning; pleadings are now called
*statements of case. However, it continues to be used informally by both lawyers
and lay people.
pleading guilty by post A procedure that allows a person to plead guilty to
certain minor offences by letter without appearing at the court. The procedure
applies only to *summary offences punishable with a maximum of three months'
imprisonment. The accused may send details of any mitigating circumstances and
these are read out to the court. The court cannot sentence a person who has pleaded
guilty by post to imprisonment in his absence or disqualify him from driving
without warning him of the possibility and giving him the opportunity to appear.
pleading in the alternative In civil cases, the process of including in a
statement of case two or more inconsistent allegations and inviting the court to
grant relief in respect of whichever allegation it finds to be well-founded.
pleas in bar (peremptory pleas) Pleas in *trials on indictment setting out some
special ground for not proceeding with the indictment. There are four such pleas:
*autrefois acqUit, *autrefois convict, pardon, and special liability to repair a road or
bridge.
plebiscite n. A public referendum or vote by the population of a territory to
determine its choice of a sovereign or a *cession of territory to another state.
pledge n. See PAWN.
plene administravit [Latin: he has fully administered] The defence of a personal
representative who has completed administration of a deceased's estate to a
creditor's action to recover a debt of which he had no knowledge. Unless the
creditor can prove that the personal representative still holds assets of the estate, he
will obtain a judgment enforceable only against any such assets coming into the
personal representative's hands in the future.
plough bote See ESTOVERS.
poaching n. Taking game without permission from private land or from land on
which the killing of game is restricted. Wild animals cannot usually be stolen; there
are, however, various statutory offences to cover poaching that do not amount to
theft. For example, the Deer Act 1980 creates offences relating to taking, killing, or
injuring deer or trespassing on land with the intention of committing any of these
acts. Conviction may involve *forfeiture of the game taken or of the equipment and
vehicles used in poaching. There are also special offences relating to taking or
destroying fish in private waters or in waters with a private right of fishery. There
is special legislation dealing with the poaching of endangered species.
poison n. A substance that, if ingested, is capable of endangering life or injuring
health. It is an offence (punishable by up to five years' imprisonment) to cause
someone to consume a poison or any other noxious substance (which can include
drugs or alcohol administered in such quantities as to be harmful) with the
intention of injuring or annoying them, even if no injury results. It is also an
offence (punishable by up to ten years' imprisonment) to cause someone to consume
such substances so that their life is endangered or they suffer grievous bodily harm
as a result, even if this was not intended. Administering poison with the intention of
killing someone or causing them serious harm may amount to an attempt to
murder or to cause *grievous bodily harm. In both cases the attempt will be
punishable with a maximum sentence of life imprisonment.
The sale of poisons is controlled by various statutes, principally the Medicines Act
1968 and Poisons Act 1972.
police authorities See POLICE FORCE.
Police Complaints Authority An independent body established under the Police
and Criminal Evidence Act 1984 to supervise the investigation of complaints against
the police. The Authority considers reports by chief constables on the results of such
investigations and has power to direct that disciplinary charges be preferred. It may
also direct that the charges be heard by a disciplinary tribunal consisting of the
chief constable and two members of the Authority.
police court A *magistrates' court.
police force A body of police officers maintained for a police area by a police
authority. In England and Wales there are five police authorities (Devon and
Cornwall, Dyfed Powys, Greater Manchester, South Wales, and Thames Valley).
London has the Metropolitan Police Authority, and Northern Ireland has the Police
Authority for Northern Ireland. Police authorities consist of local councillors,
magistrates, and independent members. They are responsible for maintaining
adequate and efficient forces and (except in London), subject to the Home
Secretary's approval, for appointing chief constables. (The London forces have
Commissioners, and the appointment of the Commissioner of Police of the
Metropolis is technically by the Crown.) Police authorities, do not, however, exercise
operational or managerial control, although they are responsible for ensuring that
authorities comply with their statutory duties of *best value. Appointments to a
police force, and the direction of its operations, are matters for the chief constable
or Commissioner, and its detailed management is largely determined by regulations
made by the Home Secretary.
police officer A person who, whatever his rank within a police force, holds the
ancient office of constable, i.e. one who has undertaken to serve the Crown as an
officer of the peace. His office is, in law, independent. He is not technically a Crown
servant, since the Crown neither appoints him nor pays him, nor is he a local
authority employee. See POLICE FORCE.
police protection order An order of the court enabling the police to remove a
child to suitable accommodation if there is reasonable cause to believe that the child
would otherwise be likely to suffer significant harm. No child may be kept in police
protection for more than 72 hours and the police do not acquire *parental
responsibility as a result of the order. See also SECTION 47 ENQUIRY.
political asylum Refuge granted to a person on political grounds. A person
subject to UKimmigration control (see IMMIGRATION) is allowed to enter and remain
in the UK if he would be liable to persecution for reasons of race, religion,
nationality, or political opinion if he was returned to the country from which he
came. See alsoASYLUM.
political offence An offence committed for a political purpose or inspired by a
political motive, for which the alleged offender cannot be extradited (see
EXTRADITION) or surrendered as a *fugitive offender. The act could be a combination
of a politically motivated but criminally implemented act, or it may be more
narrowly political, or it may be criminal activity that resulted from an attempt to
escape a political system or discriminatory persecution. In all cases, however, the
offence results from a dispute between the fugitive and the state that applies for
extradition on some issue connected with the political control or government of the
country.
poll tax See COMMUNITY CHARGE.
pollution n. Any action rendering the environment impure. Statutes relating
wholly or partly to air pollution include the Clean Air Acts 1956and 1968, the
Health and Safety at Work Act 1974, the Control of Pollution Act 1974,the
Environmental Protection Act 1990, and the Environment Act 1995, which control
the emission of smoke into the atmosphere, the emission of noxious or offensive
substances, and the composition of petrol and other fuels. Water pollution
generally is governed by the Control of Pollution Act 1974and the Environmental
Protection Act 1990, under which it is an offence (among other things) to allow
polluting matter to enter rivers or other inland waters or to impede their flow so as
to aggravate pollution due to other causes. Control of pollution by oil is covered by
the Prevention of Oil Pollution Act 1971. Pollution by the deposit of waste on land is
governed primarily by the Control of Pollution Act 1974,which permits household,
commercial, and industrial waste to be deposited only on licensed sites. Local
authorities are required by the Act to collect and dispose of household waste free of
charge; for the purposes of refuse disposal by their residents, they are also, by the
Refuse Disposal (Amenity) Act 1978, obliged to provide free refuse dumps.
polygamy n. The practice of having more than one spouse. English law considers a
marriage actually polygamous if there is in fact more than one spouse, and
potentially polygamous if there is only one spouse but the marriage was
contracted under a system of law that permits polygamy. No polygamous marriage
may be validly contracted in England. If it is celebrated abroad, however, it will be
recognized if at the time it was celebrated neither spouse was domiciled in England;
if either spouse was at that time domiciled in England the marriage will be void. For
the purposes of the Social Security Contributions and Benefits Act 1992a
polygamous marriage is to be treated as valid at any time while it is monogamous in
fact.
port n. A place or town with access to the sea to which ships may conveniently
come and at which they may load and unload. In charterparties and marine
insurance policies, the word is construed in this commercial sense, as understood in
the shipping business. For pilotage or revenue purposes, a port may extend over a
larger geographical area than the commercial port.
portion n. Funds or other property given or left to a child by his parent or
someone standing in loco parentis and intended to make permanent provision for
him or to establish him in life (e.g.a sum provided to set the child up in business).
Sums provided for the child's maintenance or education or to supplement his
income do not qualify. A portion may be brought into *hotchpot and may be
presumed to adeem a legacy (see ADEMPTION) unless there is evidence that the testator
intended the portion to be disregarded on his death
positive discrimination Actively favouring one sex or category of people over
others because they are considered to be disadvantaged. Positive discrimination is
usually illegal as it is in itself discrimination, but actions that encourage a particular
group are permitted. Thus job advertisements which state that applications from
women and ethnic minorities are welcome are legal, but choosing a candidate for a
post solely on the grounds of racial origin or sex will not be permitted in most
circumstances.
positive law See NATURAL LAW.
possession n Actual control of property combined with the intention to use it,
rightly or wrongly, as one's own. In the case of land, possession may be actual, when
the owner has entered onto the land, or possession in law, when he has the right to
enter but has not yet done so. Possession includes receipt of rent and profits, or the
right to receive them. See also QUIET POSSESSION.
possessory lien See LIEN.
possessory title Ownership of land that can only be proved by evidence of the
requisite period of *adverse possession or possession coupled with a defective
documentary title. A proprietor of registered land having only possessory title is not
protected against any adverse estate, interest, or right subsisting or capable of
arising up to the time when the title was first registered.
possibility n. (in land law) An interest in land that depends on the occurrence of
an uncertain future event. A bare possibility, such as a spes successionis, i.e. a
person's expectation of inheriting land under the will of a testator who is still alive
(i.e. depending on the testator dying without having revoked the will), confers no
legal or equitable interest. A possibility coupled with an interest (e.g. B's rights
under a conveyance "to A for life, and if C is living at A's death then to B") can be
transferred by will or by deed. See also POSSIBILITY OF REVERTER; TENANT IN TAIL AFTER
POSSIBILITY OF ISSUE EXTINCT.
possibility of reverter The interest of a person who has conveyed land to
another until the occurrence of some specified event (which may never happen). The
*determinable interest thus created will end automatically should this future event
occur, and the legal estate will revert to the grantor. Thus, when A conveys land to B
until he marries, A has a possibility of reverter when B marries (although if B dies
unmarried, the possibility of reverter is lost). See SETTLED LAND.
post-mortem n. [Latin: after death] See AUTOPSY.
postnuptial settlement See MARRIAGE SETTLEMENT.
power n. A legal discretion (as opposed to a *duty) to carry out or refrain from
carrying out any act. When powers affect the rights of others (e.g.the powers of
*trustees and *administrative powers), their exercise can be challenged in the
courts. An act that goes beyond the scope of a power as specified in the instrument
creating it (e.g.a trust deed or statute) is invalid; so, too, is any act carried out in
abuse of a power (e.g.when it is exercised after taking irrelevant considerations into
account, for improper motives, or capriciously). See also ULTRA VIRES.
power in the nature of a trust See TRUST POWER.
power of appointment A right given to someone to dispose of property that is
not his, within bounds established by the owner of the property (it is sometimes
called a mere or bare power; compare TRUST POWER). The owner of the property (the
donor of the power) gives a power to another (the donee of the power, or
appointor) to appoint (give) the property to a person (the appointee) chosen by the
appointor. The power may be general (under which all appointment may be made
to anyone, including the donee or the appointor himself), special (an appointment
may be made only within a class chosen by the donor), or hybrid (an appointment
may be made to virtually anyone except a small class). The appointees have very
limited rights - much more limited than those of beneficiaries under a trust. An
appointment is void if it is made to someone not within the class chosen or if it is a
*fraud on a power.
power of arrest (in cases of domestic violence) A power attached to, for example,
a *nonmolestation order or an *occupation order, which enables a police constable
to arrest without warraJ]t;J person whom he bas reasonable cause for suspecting of
being in breach of the order to which it is attached, even though that person might
not be committing a criminal offence.
power of attorney (letter of attorney) A formal instrument by which one
person empowers another to act on his behalf, either generally or in specific
circumstances. A power to execute a *deed must itself be given by a deed.
power of sale 1. The right of a mortgagee to sell mortgaged property if the
mortgagor has not repaid his loan by the contractual date of redemption. This
power arises when the contractual date (stated in the mortgage document and
usually very early in the period of the mortgage) has passed, but may only be
exercised if interest due under the mortgage is two months in arrears, if there has
been a breach of certain terms in the mortgage by thl, mortgagor, or if notice has
been served on the mortgagor to repay the loan and the loan (or part of it) has not
been repaid within three months of the notice. If the mortgagee sells the property
under the power of sale, he owes a duty to the mortgagor to act with reasonable
care and hold on trust any money surplus to that needed to pay his mortgage debt
for the mortgagor's benefit. Certain types of mortgagee (such as building societies
and local authorities) have a statutory duty to take care to obtain the best price that
can reasonably be obtained through the exercise of the power of sale. 2. The right
of a *tenant for life under the Settled Land Act 1925 to sell the settled land for the
best price in money that can be obtained. Such a sale *overreaches the interests of
the subsequent beneficiaries.
power of search The legal right to search people Or property. Private people have
no powers of search, but various statutes, notably the Police and Criminal Evidence
Act 1984,confer such powers on police or other officials, often on the authority of a
search warrant issued by a magistrate or a High Court judge. The 1984 Act
empowers the police to stop and search any person or vehicle found in a *public
place for stolen or prohibited articles and to detain a person or vehicle for such a
search. (An article is "prohibited" if it is either an *offensive weapon or made or
adapted for use in connection with *burglary, *theft, taking a *conveyance, or
obtaining property by *deception.) Before such a search the police officer must state
his station and object. If out of uniform, he must produce evidence of his status. He
must always give his grounds for the search if asked and must record details of it. A
magistrate may issue a search warrant to an officer if he is satisfied that there are
reasonable grounds for believing that a serious arrestable offence (see DETENTION) has
been committed and material evidence is to be found on the premises. Under the
Theft Act 1968,for example, police may obtain a warrant to search for stolen goods
when there are reasonable grounds for believing that they are in someone's
possession or on his premises. Under certain circumstances the police are given
powers of search without requiring either a warrant or any superior authorization;
for example, under the Misuse of Drugs Act 1971 (see CONTROLLED DRUGS) and the
Terrorism Act 2000 (see TERRORISM). The police also have a general power, when
arresting someone for an *arrestable offence, to enter and search any place in which
the suspect is believed to be. Statutes sometimes give powers of search to public
officials, e.g. customs officers, Department of Trade and Industry officials, or Inland
Revenue officers.
Police powers of stop and search were extended under the Criminal Justice and
Public Order Act 1994. Where a senior police officer reasonably believes that an
incident involving serious violence may take place in his area he may issue an
authorization (valid for 24 hours, extendable for up to 6 hours) for persons and
vehicles (which can include caravans, ships, aircraft, and hovercraft and their
passengers) to be stopped and searched if he thinks it expedient to do so to prevent
violence. A constable in uniform may stop and search any person for the purpose of
seeing whether that person is carrying an offensive weapon or an instrument that
has a blade or a sharp point. Failure to stop is a *summary offence punishable by
one month's imprisonment and/or a *fine on level 3. Failure to cooperate might
amount to *obstructing a police officer in the execution of his duty. Similar powers
are available to senior police officers to authorize searches for periods of 28 days to
prevent acts of *terrorism connected with the affairs of Northern Ireland or
international terrorism. Both failure to stop and wilful obstruction of a constable
are *summary offences for the purpose of this power and are punishable by six
months' imprisonment and/or a *fine on level 5.
practice n. 1. The mode of proceeding to enforce a legal right. It is virtually
synonymous with *procedure, but is sometimes used to denote informal rules of
procedure as distinct from those derived from rules of court. 2. A book on practice
and procedure, such as the *Civil Procedure Rules.
Practice Directions Published statements, usually issued by the head of the court
or division to which they relate, indicating the procedure to be followed in
particular matters or the court's intended policy in certain cases. Unlike *rules of
court, they have no statutory authority. They are normally published in the law
reports. Masters' Practice Directions, issued by the Queen's Bench Masters, concern
the administration of the *Queen's Bench Division.
practice master See CENTRAL OFFICE.
practising certificate An annual certificate issued by the *Law Society to a
solicitor entitling him to practise. The fee chargeable includes the premium of an
insurance policy indemnifying the solicitor against the consequences of professional
negligence. Barristers obtain a practising certificate from the *Bar Council after
they have successfully completed a twelve-month pupillage and have attended
further education courses required by the Bar CounciL
praecipe n. [Latin: command] 1. A court document on which a party writes the
particulars of a document that he wishes to have prepared or issued. In county
court procedure, this document is now called a request. 2. Formerly, a writ
requiring the sheriff to command the defendant either to do a certain thing or to
show cause why he had not done it.
pre-action protocols Protocols introduced as a result of the recommendations of
Lord Woolf's Access to Justice (Final Report) 1996 to speE;d up the early parts of the
litigation process. Pre-action protocols encourage greater contact between the
parties at the earliest possible opportunity in order to encourage better and earlier
exchange of information with a view to fair and early settlement of claims. Two
protocols only have been drawn up, one in clinical negligence actions and the other
in personal injury actions. Pre-action protocols can be enforced by the court and are
seen as an aspect of the courts' new responsibility of "case management under the
*Civil Procedure Rules.
preamble n. The part of a statute that sets out its purposes and effects. It follows
immediately after the long title and date of royal assent. Preambles are now
virtually confined to statutes originating in private Bills.
precarious possession Possession of property at the will of another person.
precatory trust See PRECATORY WORDS.
precatory words Words that accompany a gift of property in a document,
hoping, desiring, or requesting that the donee will dispose of the property in a
particular way. It is often difficult to decide whether there is sufficient certainty of
intention to create a trust (precatory trust) or whether the property is an absolute
gift to the recipient. The courts have tended to construe gifts so as not to create a
trust, unless there is no doubt that a trust was intended, although some recent cases
have indicated a reversal of this trend, especially where the settlor has not taken
legal advice.
precedent n. A judgment or decision of a court, normally recorded in a *law
report, used as an authority for reaching the same deciston in subsequent cases. In
English law, judgments and decisions can represent authoritative precedent (which
is generally binding and must be followed) or persuasive precedent (which need
not be followed). It is that part of the judgment that represents the legal reasoning
(or *ratio decidendi) of a case that is binding, but only if the legal reasoning is from a
superior court and, in general, from the same court in an earlier case. Accordingly,
ratio decidendis of the *House of Lords are binding upon the *Court of Appeal and
all lower courts and are normally followed by the House of Lords itself. The ratio
decidendis of the Court of Appeal are binding on all lOwer courts and, subject to
some exceptions, on the Court of Appeal itself. Ratio decidendis of the High Court are
binding on inferior courts, but not on itself. The ratio decidendis of inferior courts do
not create any binding precedent.
precept n. A lawful demand or direction, particularly a demand from a rating
authority to another authority to levy rates for the bE;nefit of the former. For
example, a district council's rates include an amount that it collects as a result of a
precept from its county counciL
predatory pricing The practice, undertaken largely by dominant businesses, of
pricing goods or services at such a low level that competitors are forced to leave the
market. While small companies are entitled to price as they wish, provided this is
not in collusion with other companies, dominant businesses must comply with
*Article 82 of the Treaty of Rome and the Competition Act 1998; predatory pricing
may be an *abuse of a dominant position contrary to these provisions. Companies
can be fined for engaging in predatory pricing.
predecessor n. (in land law) A person through whom an owner's title to land is
traced. Examples are a previous owner who sold, bequeathed, or settled the land and
a mortgagee who exercised his power of sale.
pre-emption n. The right of first refusal to purchase land in the event that the
grantor of the right should decide to sell. For example, if A makes a covenant that
for five years he will not sell his land other than to Bat .5000, A cannot be forced to
sell (compare OPTION TO PURCHASE) but B's right of pre-emption prevents him from
selling other than on the stated terms for five years. A right of pre-emption is valid
only if it is sufficiently precise. There is some confusion with respect to registration
of such a right: if it is capable of registration it will bind third parties only if
registered (see REGISTRATION OF ENCUMBRANCES).
pre-emptive right 1. The right of some shareholders under the Companies Act
1985 to be offered a proportion of certain classes of newly issued securities before
they are offered to anyone else and upon terms at least as favourable. (See also RIGHTS
ISSUE.) 2. The right conferred by the articles of association upon shareholders in
some private companies to be offered, on specified terms, first refusal of the shares
of any shareholder wishing to transfer his holding.
preference n. 1. The favouring by an insolvent debtor of a particular creditor (for
example by paying one creditor in full when there is no prospect of paying the
others). If the debtor subsequently becomes bankrupt (in the case of an individual)
or goes into insolvent liquidation (in the case of a company), and was motivated by a
desire to improve the position of the creditor, the court can order that the position
be restored to what it would have been had that creditor not been given preference.
The court can also make orders when the debtor has given property away or sold it
at an undervalue. 2. A floating *charge created within one year before the
commencement of *winding-up in favour of an existing creditor. It is invalid if the
company was insolvent at the time it was created unless the creditor provided some
fresh benefit to the company at that time, e.g. by way of loan or goods supplied. If
the charge was created in favour of a person connected with the company, the
period is two years and it is not necessary to show that the company was insolvent
at the time of its creation.
preference share SeeSHARE.
preferential debts The debts of a company on *winding-up or of an individual
on bankruptcy that have priority over unsecured debts and those secured only by
floating *charge. They are defined in the Insolvency Act 1986 and include various
debts to government departments and to employees.
preferment n. 1. The submission of a statement or information. 2. The act of
bringing a *bill of indictment before an appropriate court.
pregnancy n. (in employment law) See DISMISSAL: MATERNITY RIGHTS.
pregnancy per alium [Latin: by another] Pregnancy of a woman at the time of
her marriage by someone other than her husband. If the husband was unaware of
the true facts of the pregnancy, the marriage is voidable.
prehearing assessment See EMPLOYMENT TRIBUNAL.
pre-incorporation contract A contract purporting to be made by a person
acting as agent for a company not yet formed. Under the Companies Act 1985, that
person is personally liable on the contract.
prejudice n. Preconceived judgment. See UNFAIR PREJUDICE; WITHOUT PREJUDICE.
preliminary inquiries A set of inquiries presented by an intending purchaser of
land or property to the intending vendor at an early stage in the transaction.
Sometimes known as precontract inquiries, they relate to the state and condition
of the property rather than to the title. Printed standard forms of inquiries are
available. A vendor who gives false or misleading replies can be liable for
misrepresentation, but a vendor's replies may be (and often are) noncommittal and
evasive. Alternatively, a vendor may be required to complete a Seller's Property
Information Form (see CONVEYANCING).
preliminary investigation (preliminary inquiry) The procedure in a
magistrates' court to decide whether or not there is a sufficient case to commit an
accused person for trial by the Crown Court. See COMMITTAL FOR TRIAL.
preliminary point of law A question of law ordered to be tried before the facts
of the case are determined. Orders of this kind are normally made if the point of
law will be decisive in the litigation or will result in a substantial saving of *costs.
premises pl. n. 1. Land or buildings; a parcel of land. 2. See DEED.
premium n. 1. The sum payable (usually annually) by the insured to the insurer
under a contract of *insurance. Since October 1994 household and motor insurance
premiums have been subject to a duty known as insurance premium tax (5% in
2001). 2. A lump sum that is sometimes paid by a tenant at the time of the grant,
assignment, or renewal of his lease or tenancy. It was illegal to demand a premium
in respect of a *protected tenancy but this does not apply to *assured tenancies. 3.
See CAPITAL.
prenuptial agreement An agreement entered into before marriage, usually to
limit the claims one spouse can make on divorce from the other. Prenuptial
agreements are common in the United States but are of dubious validity in the UK.
preparatory hearing A hearing before a judge of the Crown Court, before the
jury are sworn, in a case of serious or complex fraud for the purpose of identifying
issues likely to arise in the case and assisting in their comprehension and
management. See also SERIOUS FRAUD OFFICE.
prerogative of mercy The power of the Crown, on the Home Secretary's advice,
to pardon a criminal offence absolutely (and thereby relieving the defendant of all
the consequences of conviction), to commute a sentence to a milder form, or to
remit a sentence in part.
prerogative orders Orders issued by the High Court for the supervision of
inferior courts, tribunals, and other bodies exercising judicial or quasi-judicial
functions. They comprise *quashing orders, *mandatory orders, and *prohibition
orders. Until 1938 they were prerogative writs, but since the Administration of
Justice Act 1938 the only remaining prerogative writ is *habeas corpus.
prescribed by law A prerequisite for interference with any right in the
European Convention of Human Rights: any such interference will be unlawful if it
is not prescribed by law (or "in accordance with the law"). To be "prescribed by law"
there must be a legal regime governing the interference in question. Moreover, that
law must be both adequately accessible (in that citizens must be able to understand
whether or not the law applies in a given case) and formulated with sufficient
precision to enable citizens to regulate their conduct.
prescribed limit The maximum amount of alcohol a person is legally allowed to
have in his blood if he is driving or in charge of a motor vehicle on a road or public
place (see DRUNKEN DRIVING). The level is currently fixed at 80 milligrams of alcohol
per 100 millilitres of blood.
prescription n. 1. (in land law) The acquisition for the benefit of one's own land
(the dominant tenement) of an *easement or *profit aprendreover another's land
(the servient tenement) by uninterrupted use over a long period. A person claiming
a right by prescription must show that his use did not have the servient owner's
permission and was not kept secret or exercised by force. Under the Prescription Act
1832 most easements may be acquired by prescription over 20 years, the period being
extended when the servient owner is under a disability (e.g.a child or person of
unsound mind), although 40 years' use establishes an absolute and indefeasible right.
The periods are 30 and 60 years in the case of profits. An absolute easement of light
is acquired after 20 years' use. Rights can also be acquired at common law under the
doctrine of *Iost modern grant, or by proof of continuous use since time
immemorial, i.e. since 1189. 2. (in international law) The acquisition of title to
territory through an uncontested exercise of sovereignty over an extended period of
time. Prescription presupposes a prior sovereign authority whose control and
administration over the territory in question has lapsed through (1) failure to
occupy, (2) failure to administer, (3)abandonment or neglect, (4) a wrongful original
claim, or (5) failure to contest a new claim.
presentment n. The act of presenting a *bill of exchange to the person upon
whom it is drawn for his *acceptance or for payment. When a bill is payable after
sight, presentment for acceptance is necessary in order to fix its *maturity. Bills
must normally be presented for payment; otherwise the drawer and endorsers are
discharged. There are rules as to the time and place of presentment.
presents pl. n. See DEED.
preserved county A *county that remains in existence for certain legal purposes,
such as licensing legislation, although it has been abolished as a *local government
area after local government reorganization. See also LOCAL GOVERNMENT COMMISSION
FOR ENGLAND.
presiding judge A *puisne judge appointed by the Lord Chancellor to supervise
the work of a circuit (see CIRCUIT SYSTEM). Each circuit has two presiding judges with
the exception of the South-Eastern circuit, which has the Lord Chief Justice and two
puisne judges. There is a Senior Presiding Judge for England and Wales.
pressing social need A concept that has been used by the European Court of
Human Rights as the basis for assessing whether or not an interference with a
*qualified right is necessary in a democratic society.
presumption n. A supposition that the law allows or requires to be made. Some
presumptions relate to people, e.g. the presumption of innocence and of sanity (see
entries below). Others concern events, e.g. the presumption of legality (omnia
praesumuntur rite et solemniter esse acta: all things are presumed to have been
done correctly and solemnly). Most relate to the interpretation of written
documents, particularly statutes (see INTERPRETATION OF STATUTES). Almost every
presumption is a rebuttable presumption, i.e. it holds good only in the absence of
contrary evidence. Thus, the presumption of innocence is destroyed by positive
proof of guilt. An irrebuttable presumption is one that the law does not allow to
be contradicted by evidence, as, for example, the presumption that a child below the
age of 10 is incapable of committing a crime (see DOLI CAPAX). See alsoEQUITABLE
PRESUMPTIONS.
presumption of advancement See ADVANCEMENT.
presumption of death A common-law presumption that someone has died. The
presumption will be made if a spouse has been missing for at least seven years (with
nothing to indicate that he or she is still alive) or by proof of other reasonable
grounds (e.g. that the spouse was on a ship that sank). The courts are empowered to
grant a decree of presumption of death and dissolution of marriage, enabling
the other spouse to remarry; the remarriage will be valid even if the first spouse
later reappears.
presumption of due execution If on the face of it a will appears to be duly
executed, a court will not inquire further into the circumstances of its execution,
but will presume that all formalities were properly observed, unless there is positive
and reliable evidence to the contrary.
presumption of innocence The legal presumption that every person charged
with a criminal offence is innocent until proved guilty. Although this is termed a
"presumption" it is in fact a fundamental principle underlying the criminal law,
which has been reinforced by the Human Rights Act 1998(see FAIR TRIAL). See BURDEN
OF PROOF.
presumption of legality See PRESUMPTION.
presumption of legitimacy See LEGITIMACY.
presumption of negligence See RES IPSA LOQUITUR.
presumption of sanity The legal presumption that every person charged with a
criminal offence was sane (and therefore responsible in law) at the time he is alleged
to have committed the crime. See INSANITY.
presumption of survivorship See COMMORIENTES.
presumptive evidence See PRIMA FACIE EVIDENCE.
pre-trial review A hearing for the preliminary consideration of an action or
matter. The hearing is before a judge, who is required to consider the course of the
proceedings and give all necessary directions for their future conduct. The judge
also has power to enter judgment at the pre-trial review in some circumstances, e.g.
if the defendant does not file a defence or appear at the hearing.
previous convictions (in the law of evidence) In general, evidence that a party or
witness has been convicted of a criminal offence on some previous occasion is
inadmissible in both civil and criminal cases as part of the opposing party's own
case, unless it is admissible *similar-fact evidence or, in civil cases, unless it is
relevant to any issue in the proceedings. However, a witness (other than an accused
person) may be cross-examined about his previous convictions in order to impeach
(discredit) him. Under the terms of the Criminal Evidence Act 1898, the accused may
only be cross-examined about his previous convictions if (1) they are relevant to
show that he is guilty of the offence with which he is charged (i.e. they would be
admissible similar-fact evidence if they were tendered as part of the prosecution's
own case); (2) the accused has attempted to establish his own good character or has
cast imputations upon the character of the prosecutor or his witnesses; or (3) the
accused has given evidence against any other person charged in the same
proceedings. If a witness is asked about a previous conviction and denies the
conviction, *evidence in rebuttal may be given. See also CREDIT.
previous statements (in the law of evidence) If a witness has on some previous
occasion made a statement that is inconsistent with his present testimony, this may
be put to him in *cross-examination in order to impeach (discredit) him; if he denies
having made the statement, it may be proved by *secondary evidence. Evidence of
the previous consistent statements of a witness is not in general admissible. lt may,
however, be given in order to rebut the suggestion that his present testimony is a
recent fabrication or when it concerns the *complaint of the victim of a sexual
offence. See also CREDIT.
price n. In a contract of sale, the money *consideration given in exchange for the
transfer of ownership. In a contract of *sale of goods the price may be fixed by the
contract, it may be left to be fixed in a manner agreed by the contract, or it may be
determined by the course of dealing between the parties. If the price is not
determined in any of the above ways, the buyer must pay a reasonable price. Under
the Consumer Protection Act 1987, it is a criminal offence to give a misleading
indication of the price of goods, services, accommodation, or facilities; for example,
when the consumer might reasonably expect the price indicated to cover matters
for which an additional charge is in fact made.
prima facie [from Latin prima facies, first appearance] At first appearance; on the
face of things.
prima facie case A case that has been supported by sufficient evidence for it to
be taken as proved in the absence of adequate evidence to the contrary.
prima facie evidence 1. (presumptive evidence) Evidence that is sufficient to
discharge any evidential *burden of proof borne by a party and that may be
sufficient to discharge the persuasive burden of proof if no evidence in rebuttal is
tendered. 2. Evidence of a fact that is of sufficient weight to justify a reasonable
inference of its existence but does not amount to conclusive evidence of that fact.
Primary Care Trust (PCT) One of a group of bodies within the *National Health
Service, established under the Health Act 1999for providing, or arranging for the
provision of, general medical services in local areas. Each PCTis established by an
order made by the Secretary of State. PCTs replaced the GP fundholding system.
primary evidence Evidence, such as the original of a document, that by its
nature does not suggest that better evidence is available. Even if an item of primary
evidence is inadmissible (e.g. because it is the subject of a private *privilege), the
same fact may, in most cases, be proved by *secondary evidence.
primary facts Facts found by the trial court to be established on the basis of the
testimony of witnesses and the production of real or documentary evidence.
Appellate courts are generally unwilling to change the trial court's findings
concerning primary facts, but may reverse its decisions concerning the inferences to
be drawn from them.
Prime Minister The head of the UKgovernment, who is appointed by the Crown
to select and preside over the *Cabinet and bears ultimate responsibility for the
policy and machinery of government. The Prime Minister also advises the Crown on
such matters as the dissolution of Parliament, the creation of peerages, and the
making of senior appointments (e.g.the Ombudsman). Like the Cabinet, the office
derives from *constitutional convention, which requires that the person appointed
is the leader of the party with the greatest number of Members of Parliament.
principal n. 1. (in criminal law) The person who actually carries out a crime.
(Formerly, the actual perpetrator was known as the principal in the first degree
and a person who aided and abetted was called principal in the second degree, but
the former is now known as the principal and the latter as the secondary party.) A
person can be a principal even if he does not carry out the act himself; for example,
if he acts through an innocent agent, such as a child, or if he is legally responsible .
for the acts of another (e.g. because of *vicarious liability). See also ACCESSORY. 2. (in
the law of agency) The person on whose behalf an *agent acts. 3. (in finance) The
sum of money lent or invested, as distinguished from the interest.
principal mansion house The main house (other than a farmhouse or a house
Whose accompanying garden, park, and grounds occupy less than 25 acres) comprised
in a settlement of land. Under the Settled Land Act 1925, if the terms of the
settlement so provide, the tenant for life cannot sell the principal mansion house
without the consent of the trustees or the court. Consent is necessary under a
settlement made before 1926 unless its terms dispense With the requirement.
principle of legality See NULLUM CRIMEN SINE LEGE.
priority n. See PRIORITY OF ASSIGNMENT; PRIORITY OF MORTGAGES; PRIORITY OF TIME.
-priority neighbourhood An area declared such by a housing authority, being
broadly similar to a *housing action area. A priority neighbourhood is declared
when it is not practicable either to constitute the area itself a housing action area or
a general improvement area or to include it in one. Priority neighbourhoods are
typically areas surrounding or adjoining housing action areas or general
improvement areas.
priority notice 1. A notice lodged at HM Land Registry that prevents, for 14 days,
anyone other than the person lodging the notice from registering title to the land
concerned or any dealing in it. Provided that he lodges his application for
registration of his own title or dealing within the period of protection, he will not
be bound by any other encumbrances lodged for registration before his own. In
practice, dealings (i.e. transfers, mortgages, etc.) in land that is already registered are
usually protected by the applicant's certificate of *official search rather than by
separate registration of a priority notice. 2. In the case of unregistered land, a
notice Iodzed at the Land Charges Department of the intended registration of a
charge. The priority notice is lodged at least 15 days before the intended charge is to
take effect, and the subsequent registration of the charge will be effective from the
time the charge was created, provided the application for registration is presented
within 30 days after the priority notice. Thus when A is about to convey land to B,
who is to give a restrictive covenant in A's favour, A may lodge a priority notice
before completing the transaction and register the covenant afterwards. This will
ensure that the covenant will bind any purchaser or mortgagee from Bwhose
interest may arise before A can register the covenant as a charge.
priority of assignment The order in which two or more *assignments of a
chose in action takes effect. This order is determined according to the date of
receipt of the notice of assignment by the legal owner of the property assigned.
priority of mortgages The order in which two or more mortgages of the same
property take effect. If there are several mortgages of the same property, and its
value is less than the amount due on the mortgages, the respective claims of the
mortgagees must be determined. Before 1926,priority often depended on the date
order in which the mortgages were created. Since 1925 the order of priority in the
case of *registered land is according to the date order in which the respective
mortgages are registered. A first mortgagee of *unregistered land usually retains
the title deeds and has priority over others except prior mortgages that are
registered as a land charge in the Land Charges Registry. Otherwise the order is
governed by the order of registration. Priority of equitable interests is determined
by the date at which notice is received by the trustees. See also CONSOLIDATION OF
MORTGAGES; TACKING.
priority of time When there are two or more competing equitable interests, the
equitable maxim qui prior est tempore potior est jure (he who is earlier in time is
stronger in law) applies. This means that the first in time prevails over the others.
For example, where a property is subject to two mortgages, the one granted first
has priority (see PRIORITY OF MORTGAGES). However, the priority can be affected by the
existence of a purchaser for value without notice, fraud, estoppel, gross negligence,
registration, and overreaching.
privacy n. The right to be left alone. The right to a private life as set out in Article
8 of the European Convention on Human Rights is now part of UK law as a
consequence of the *Human Rights Act 1998. The right includes privacy of
communications (telephone calls, correspondence, etc); privacy of the home and
office; environmental protection; the protection of physical integrity; and protection
from unjustified prosecution and conviction of those engaged in consensual
nonviolent sexual activities. This right is a *qualified right; as such, the public
interest can be used to justify an interference with it providing that this is
prescribed by law, designed for a legitimate purpose, and proportionate. Public
authorities have a limited but positive duty to protect privacy from interference by
third parties.
private Act See ACT OF PARLIAMENT.
private Bill See BILL.
private carrier See CARRIER.
private company A residuary type of *registered company defined under the
Companies Act 1985as any company that is not a *public company. This form of
company is prohibited from offering its shares to the public at large. Although not
a strict requirement under the Act, it is common to find such companies placing
restrictions on the *transfer of shares and confining them to other (often family)
members. Unlike a public company, a private company can consist of only one
"company member (single-member company), and many of the other restrictions
that apply to public companies (such as those relating to *financial assistance) may
be relaxed provided that the company complies with a specified procedure under
the Act.
private defence Action taken in reasonable defence of one's person or property.
It can be pleaded as a defence to an action in tort. The right of private defence
includes the defence of one's family and, probably, of any other person from
unlawful force.
private international law (conflict of laws) The part of the national law of a
country that establishes rules for dealing with cases involving a foreign element (i.e.
contact with some system of foreign law). For example, if a contract is made in
England but is to be fulfilled abroad, it will be necessary to decide which law
governs the validity of the contract. This is known as the question of choice of law.
Generally, under the Rome Convention (1980; in force from 1 April 1991), the parties'
choice of law in a written contract is respected; rules are set down in the
Convention stating which laws apply if the parties to the contract have not made a
choice. Sometimes the courts must also decide whether or not they have jurisdiction
to hear the case and whether or not to recognize a *foreign judgment (such as a
divorce obtained abroad).
Private international law must not be confused with public *internationallaw.
private law The part of the law that deals with such aspects of relationships
between individuals that are of no direct concern to the state. It includes the law of
property and of trusts, family law, the law of contract, mercantile law, and the law
of tort. Compare PUBLIC LAW.
private life See PRIVACY.
private member's Bill See BILL.
private nuisance See NUISANCE.
privatization n. A programme of denationalization - removing the provision of
public utility services from the public sector into the private sector under the
auspices of public companies with public shareholders. The shareholders mayor may
not include the government, but increasingly do not. See alsoNATIONALIZED INDUSTRIES.
privilege n. 1. A special right or immunity in connection with legal proceedings
conferred upon a person by virtue of his rank or office. For example, Members of
Parliament enjoy certain privileges in relation to arrest, which, however, do not
extend to arrest in connection with indictable offences (see PARLIAMENTARY PRIVILEGE).
See also ABSOLUTE PRIVILEGE; QUALIFIED PRIVILEGE. 2. (in the law of evidence) The right
of a witness when testifying to refuse to answer certain types of question or of a
party when disclosing documents (see DISCLOSURE AND INSPECTION OF DOCUMENTS) to
refuse to produce certain types of document on the ground of some special interest
recognized by law. Privileges are divided into two groups: public-interest privilege
and private privilege. The Crown has always been able to claim public-interest
privilege in relation to secrets of the state and other matters whose confidentiality
is essential to the functioning of the public service (see CROWN PRIVILEGE). It is now
recognized that a similar privilege may be claimed by private parties when some
overriding public interest is involved. Private privileges include the privilege
against self-incrimination, according to which a witness may not be asked a
question the answer to which might tend to incriminate him; legal professional
privilege, which protects confidential communications between lawyers and their
clients and between lawyers and third parties with a view to advising their clients;
and a privilege attaching to *without prejudice communications in the course of
litigation. Under EU law there is no professional privilege between a lawyer working
for a company and members of that company, only between a lawyer not employed
by the company concerned and the company. See alsoMARITAL PRIVILEGES.
privileged communication 1. A confidential official communication that may
be withheld from production in court proceedings because disclosure of its contents
would be against the public interest. 2. A communication between parties in a
confidential relationship, such as husband and wife or s solicitor and client, evidence
of which may not be given without the consent of the party to whom the privilege
belongs. Communications between patient and doctor are not privileged. 3. (in the
tort of *defamation) A communication protected by absolute or qualified privilege.
No action for defamation may be brought for a communication that is protected by
*absolute privilege. A communication covered by *qualified privilege is protected
unle it was made maliciously.
privileged will A will that is valid even though it does not comply with the
formal requirements of the Wills Act 1837(e.g.in being written but not witnessed
or in being oral) or is made by a minor. The right to make a privileged will is
conferred by the 1837 Act (as extended by the Wills (Soldiers and Sailors) Act 1918) on
any soldier in actual military service (a soldier's will or military testament) and
any mariner or seaman at sea (a mariner's will). It also applies to airmen on actual
military service and, on normal principles of statutory interpretation, to females as
well as to males (for example, a female secretary aboard an ocean liner has been held
to be a mariner at sea). Actual military service has been very widely interpreted. It
is not confined to service as a combatant during time of war, but extends to service
in any other capacity (e.g.as an auxiliary or a trainee) and to service when war is
merely imminent. Service with an occupying force after a war is also included, as is
service in support of the civil power against terrorists (e.g.in Northern Ireland). At
sea has received a similarly wide interpretation. A member of the naval forces is
treated as being at sea if he is in an equivalent position to a soldier or airman on
actual military service (e.g. if he is on shore leave during wartime).
privilege of witness See PRIVILEGE.
privity n. The relationship that exists between people as a result of their
participation in some transaction or event; for example, *privity of contract and
*privity of estate.
privity of contract The relationship that exists between the parties to a contract.
The common law doctrine of privity of contract established that only the parties to
the contract, i.e. those that provided *consideration, could sue or be sued under the
contract. Third parties could not derive rights from, nor have obligations imposed
on them by, someone else's contract. This position has now been modified by the
Contracts (Rights of Third Parties) Act 1999. By the provisions of the Act, a person
can enforce a term of a contract to which he is not a party provided that the term
purports to confer a benefit on him or the contract expressly provides for such
enforcement.
privity of estate The relationship between landlord and tenant under the same
lease; as long as the relationship subsists, the landlord and tenant may enforce their
respective obligations against one another even though they were not original
parties to the lease. Thus when A grants a lease to Bwho subsequently assigns his
interest to C, while A conveys his reversion to D, D may enforce against C the
tenant's covenants given by A although there is no contract between D and C. There
is no privity between different leasehold estates. For example if A grants a lease to B
who sublets to C,A cannot sue C to enforce positive obligations in either the lease or
the sublease, although he may be able to enforce *restrictive covenants contained in
the headlease, against C.
Privy Council (PC) A body, headed by the President of the Council, that formerly
advised the Crown on government policy but has been superseded in that role by
the *Cabinet. Its functions are now mainly formal (e.g. a few members are
summoned to make *Orders in Council), but it has limited statutory powers of
legislation (see ORDERS OF COUNCIL) and it also advises the sovereign, through
committees, on certain judicial matters (see JUDICIAL COMMITTEE OF THE PRIVY COUNCIL)
and other matters of a nonpolitical nature (e.g.the grant of university charters).
There are about 350 Privy Counsellors, who include members of the royal family, all
Cabinet ministers, the Speaker and other holders of high nonpolitical office, and
persons honoured for public services. A Privy Counsellor is addressed as "RIght
Honourable".
prize court A municipal court that, in accordance with *internationall~w,deals
with questions relating to prize, i.e. ships, aircraft, or goods captured durmg .
wartime at sea or in port by the naval or air forces of a belligerent power. Prize law
entitles the belligerent state to expropriate not only enemy vessels and goods but
also neutral property suspected of carrying *contraband or running a *blockade.
The Supreme Court of Judicature (Consolidation) Ac~ 1925 constituted the HIgh
Court a prize court; jurisdiction in prize was vested m the Probate, DIVorce and
Admiralty Division until its transfer in 1970 to the Admiralty Court (part of ~he
Queen's Bench Division). Prize appeals go to the Judicial Committee of the Pnvy
Council.
probate n. A certificate issued by the Family Division of the High Cour~, on the
application of *executors appointed by a will, to the effect that the WIll IS valid a~d
that the executors are authorized to administer the deceased's estate. When there IS
no apparent doubt about the will's validity, probat~ is granted in common form on
the executors filing an *affidavit. Probate granted in common form can be revoked
by the court at any time on the application of an interested party who. proves that
the will is invalid. When the will is disputed, probate in solemn form IS granted,
but only if the court decides that the will is valid after hearing the evidence on the
disputed issues in a *probate action. All parties who knew of the probate action and
of their interest in the estate are bound by the court's order, whether or not they
were parties to the action.
probate action Proceedings in court to determine, for example, whether or not a
disputed will is valid or to seek revocation of a previous gran~ ~f. probate. .
Contentious probate business is dealt with by the Chancery DIVISIOn of the HIgh
Court. A will may be challenged on the grounds that it was not properly executed
(see EXECUTION OF WILL), that the testator lacked testamentary capacity, or that It has
been revoked.
Probate. Divorce and Admiralty Division A division of the *High Court of
Justice created by the Judicature Acts 1873-75 to take over the jur!sdict.ion formerly
exercised by the Court of Probate. the Court for Divorce and Mat~ImOll!al ~a~~es,
and the High Court of Admiralty. The Division was renamed the Family DIVISIOn by
the Administration of Justice Act 1970: the Admiralty jurisdiction was transferred to
the *Queen's Bench Division and the contentious probate jurisdiction to the
*Chancery Division.
probation hostel Premises for the accommodation of persons who may be
required to reside there by *community rehabilitation orders.
probation officer An officer whose duties include supervising persons bound by
(for example) *community rehabilitation orders, *supervision or?ers, or .
*community punishment orders. A probation officer advises, assists, and befriends
these and others (e.g. persons who have been released from prison or are on bail) and
inquires into the circumstances of offenders in order to assist the court to
determine how best to deal with them.
probation order See COMMUNITY REHABILITATION ORDER.
procedure n. (in court proceedings) The formal manner in which legal proceedings
are conducted. See also ADJECTIVE LAW; PRACTICE; RULES OF COURT.
process n. 1. (in court procedure) A document issued by a court to require the
attendance of the parties or the performance of some initial step in the proceedings
by a defendant. When it is used to initiate the proceedings it may be called the
originating process. Most of the confusing process procedures have now been
abolished and replaced under the *Civil Procedure Rules; proceedings are now
usually initiated by the issue of a *claim form. 2. See ABUSE OF PROCESS.
proces-verbal [French] An informal record or memorandum of international
understandings arrived at in negotiations. It is frequently a preliminary step in
concluding a *treaty.
procurator fiscal In Scotland, an officer of the sheriff court (roughly equivalent
to the English county court).Appointed by the *Lord Advocate, he must be a
qualified advocate or solicitor. His duties include initiating preliminary
investigations into criminal cases in his district, taking written statements
(precognitions) from witnesses, conducting the prosecution, and conducting inquiries
into sudden or suspicious deaths.
Procurator General See TREASURY SOLICITOR.
procurement n. Persuading or inviting a woman to have sexual intercourse. The
following are offences of procurement; the sexual intercourse sought may be
marital intercourse. (1) Procuring a woman to have sexual intercourse with oneself
or anyone else, anywhere in the world, by means of threats or false pretences. (2)
Procuring a girl under the age of 21 to have sexual intercourse with a third person
anywhere in the world. (3)Procuring a severely mentally retarded woman (who is
incapable of guarding herself against exploitation) to have sexual intercourse
anywhere in the world. These three offences are committed only if sexual
intercourse takes place. (4)Procuring a woman to become a prostitute or to leave the
UK with the intention that she should join or frequent a brothel. All these offences
are punishable by up to two years' imprisonment.
procuring breach of contract (inducing breach of contract) The tort of
intentionally persuading or inducing someone to break a contract made by him with
a third par
y. It is actionable by the party who suffers loss from the breach. Thus a
theatre manager may sue the person who induces a singer to break her contract to
perform at his theatre. In some circumstances a defence of *justification is
available. The tort also covers indirect procurement of breach of contract (i.e. by
inducing persons not parties to the contract to procure the breach) and interference
with the performance of a subsisting contract without actually causing a breach.
These forms of the tort, however, are only actionable if unlawful means are used to
procure the breach or interference. The operation of the tort in *trade disputes is
limited by statute. See alsoINTERFERING WITH TRADE OR BUSINESS.
procuring disclosure of personal data An offence committed by someone
who obtains personal information about an individual that is stored on a computer
when he knows or believes that he is not a person to whom the data user is
registered to disclose this data (see DATA PROTECTION). Other offences are committed
when the data procured in this way is offered for sale or sold. In each case the
offences were created by the Criminal Justice and Public Order Act 1994.
production of documents The act of a party in making available documents in
his possession, custody. or power either for inspection by the other ~arty (see
DISCLOSURE AND INSPECTION OF DOCUMENTS) or for use as evidence at tnal in accordance
with a *notice to produce.
products liability The liability of manufacturers and other persons for defective
products. Under the Consumer Protection Act 1987,passed to conform WIth the
requirements of European Community law, the producer of a def~ctlve product that
causes death or personal injury or damage to property IS stnctly liable for the
damage. A claim may only be made for damage to property if the property was for
private use or consumption and the value of the damage caused exceeds. .275.A
product is defective if its safety is not. such as persons generally are en~ltled to
expect. The persons liable for a defective product are: (1) the producer (:.e. the
manufacturer, including producers of component parts and raw matenals), (2) a
person who holds himself out to be producer by p~tting his name or trade ma:k on
the product, (3)a person who imports the product into the European Commumty,
and (4)a supplier who fails, when reasonably requested to do so by the person
injured, to identify the producer or importer of the prodU<~t. '.
There are several defences to liability under the Act, e.g. contnb~tory negligence,
that the defendant did not supply the product or did not supply It m the course of
business; that the defect did not exist at the relevant time; and that the state of
scientific and technical knowledge at the relevant time was not such that a .
producer of such products could be expected to have discovere~ the de.fect Actions
must be started within three years from the date when the claimant fl:-St had a
cause of action or (if later) first knew or should have known the mate.nal f~cts,.but
not later than ten years from when the product was put i~to circulation. Liability
under the Act may not be excluded by any contract or notice.
Compensation for defective products can also be obtained under the general
principles of contract and tort. The purchaser of a defective product may sue the
seller for *breach of contract in failing to supply a product that conforms to the
contract (including its *implied conditions). An action in .tort can be bro~ght by
anyone whose person or property is damaged by a defective product against the
person whose *negligence caused the damage; ~his person may be the manufacturer
or someone else, such as a distributor or a repairer.
profit-and-Ioss account A document presenting in su.mmary form a true and
fair view of the company's profit or loss as at the end of ItS financial year. It must
show the items listed in one of the four formats set out in the Companies Act 1985.
Its function is to show as profit or loss the difference between revenue generated
and the expenditure incurred in the period covered by the account See also
ACCOUNTS.
profit aprendre The right to take soil, minerals, or produce (such as wood, turf,
or fish) from another's land (the servient tenement) or to. graze ammals on It It may
exist as a legal or equitable interest. The right may be enjoyed exclusively by one
person (a several profit) or by one person in common with others (a.common). A
profit may exist in gross(i.e.existing independently of any ?wnershlp of land by
the person entitled) and may be exercisable without any limit on the a~ounto~
produce taken. It may be sold, bequeathed or otherwise dealt with. Profits existing
for the benefit of the owner's land (the dominant tenement) are generally
exercisable only to the extent to which the dominant tenement can benefit They
may ')e "appurtenant, when the nature of the right depends on the terms of the
gram, or pur cause de vicinage (Norman French: because of vicinity), in respect of
cattle grazing the dominant tenement and straying onto the unfenced adjacent
servient tenement. Profits may be created by express or implied grant or by statute;
profits appurtenant may also arise by *prescription (or presumed grant). They may
be extinguished (1) by an express release; (2) by the owner occupying the servient
tenement; or (3) by implied release (e.g. through abandonment which may be
presumed through long "non-user, through changes to the dominant tenement that
make enjoyment of the right unnecessary or impossible, or through an irreversible
alteration of the servient tenement).
prohibited degrees of relationships Family relationships within which
marriage is prohibited (and, if celebrated, is void) although sexual intercourse within
such a relationship may not amount to *incest. A man, for example, may not marry
his grandmother, aunt, or niece; a woman may not marry her grandfather, uncle, or
nephew. Since 1986, there are fewer relationships of *affinity within which marriage
is prohibited. For example, a man may now marry his mother-in-law provided his
former wife and his former wife's father are both dead.
prohibited steps order See SECTION 8 ORDERS.
prohibited weapon A weapon suitable only for use by the armed forces and
having no normal function in civilian life. Prohibited weapons include automatic
firearms, weapons designed or adapted to discharge a poisonous liquid or gas, and
ammunition containing poisonous substances. It is an offence (punishable with up to
two years' imprisonment) to produce, sell, buy, or possess any prohibited weapon
without the permission of the Defence Council. See alsoFIREARM; OFFENSiVE WEAPON.
prohibition notice A notice under the Health and Safety at Work Act 1974
specifying activities that, in the opinion of an inspector, involve a risk of serious
personal injury and prohibiting them until specified safeguards have been adopted.
Compare IMPROVEMENT NOTICE.
prohibition order A remedy in which the High Court orders an ecclesiastical or
inferior court, tribunal, or administrative authority not to carry out an *ultra vires
act (for example, hearing a case that is outside its jurisdiction). It is available in cases
in Which, had the act been carried out, the remedy would have been a *quashing
order and it is governed by broadly similar rules.
prohibitory injunction See INJUNCTION.
prolixity n. Excessive length or repetitiveness in statements of case, affidavits, or
other documents. Modern rules of procedure discourage prolixity; prolix documents
may be struck out or the costs of them disallowed.
promise n. An undertaking given by one person (the promisor) to another (the
promisee) to do or refrain from doing something. It is legally binding only if
contained in a *contract or made by *deed.
promissory estoppel See ESTOPPEL.
promissory note An unconditional promise in writing, made by one person to
another and signed by the maker, engaging to pay a specified sum of money to (or
to the order of) a specified person or to the bearer, either on demand or at a fixed
or determinable future time. Promissory notes are *negotiable instruments and
many of the provisions in the Bills of Exchange Act 1882 apply with necessary
modifications to promissory notes. Promissory notes are not presented for
acceptance and the party primarily liable is the maker of a note. A bank note is a
promissory note issued by a bank; the sum of money mentioned on the note is
payable to the bearer on demand.
promoter n. 1. A person engaged in the formation or *flotation of a company. A
promoter stands in a *fiduciary relationship to the company; his functions may
include drafting a *prospectus, negotiating preliminary agreements. instructing
solicitors, and obtaining directors. Solicitors, bankers, and other professionals
involved in the company, but acting merely in their professional role, are not
regarded as promoters. 2. One who introduces a private *Bill.
proof n. 1. The means by which the existence or nonexistence of a fact is
established to the satisfaction of the court, including testimony, documentary
evidence, presumptions. and judicial notice. Since most facts with which a court is
concerned are not capable of being tested empirically, proof in the legal sense is
quite different from proof in the context of mathematics or science. The
uncorroborated evidence of one credible witness is sufficient proof for most
purposes in the law. See STANDARD OF PROOF. 2. (Informal) The written statement of a
prospective witness obtained by a solicitor. A witness is said not to have come up to
proof if he fails to testify in accordance with his proof.
proof beyond reasonable doubt The *standard of proof required in criminal
proceedings. If the jury has any reasonable (even if unlikely) doubts about the guilt
of the accused, it may not convict him. lt is often paraphrased by the judge
instructing the jury that they must be "satisfied so that they are sure" of the guilt
of the accused. It is disputed whether this standard is ever applicable in civil
proceedings (e.g.when there is an allegation of fraud): it is generally held that it is
not. See also BURDEN OF PROOF.
proof of age The age of a person may be proved by *direct evidence, such as the
testimony of someone present at the person's birth, and in some cases from his
appearance. It is usually proved by producing a birth certificate, under the
exception to the hearsay rule relating to statements in *public documents, and
evidence that the person in question is the one referred to in the birth certificate.
proof of birth Birth is usually proved by the production of a birth certificate,
which is admissible under the exception to the hearsay rule relating to statements
in *public documents, coupled with evidence identifying the person in question
with the person referred to in the birth certificate.
proof of handwriting Handwriting may be proved by the testimony of the
person whose handwriting it is or by that of someone who saw him execute the
document in question. It may also be proved by the opinion of someone familiar
with the handwriting of the alleged writer or by comparison with a proved example
of the writer's handwriting. Expert testimony is also admissible.
proof of marriage Legally valid evidence that a *marriage was celebrated. This
will usually be shown by possession of a marriage certificate and proof of identity,
but may also be shown by other forms of evidence.
proper law of a contract The system of law that is applied in *private
international law to a contract with foreign elements. Which system governs the
contract will depend on the intention of the parties to the contract, to be
determined in each case by considering the terms of the contract, and all the
surrounding facts. I~ the parties have expressly agreed which law should govern the
contract, that law WIll normally be applied by virtue of the Rome Convention (1980'
m force from 1AJ?riI19~1). If, as is usual, they have not expressly agreed, the courts
try to Infer their mtention fro~ all the circumstances; if it cannot be inferred, they
WIll apply ~,he system of law WIth WhICh the contract has "its closest and most real
connection", In the UK the Rome Convention is implemented by the Contracts
Applicable Law Act 1990.
property n. Anything that can be owned. A distinction is made between real
p~operty (land and incorporeal *hereditaments) and personal property (all other
kinds of property) and between tangible property (that which has a physical
existence, ~.g. chattels and land) and intangible property (*choses in action,
mcludI~g intellectual property, and incorporeal hereditaments). For purposes of the
law of theft, property includes all real, personal, and intangible property, although
lan~ can only be stolen under certain specified conditions. For purposes of the law
of criminal damage, property does not include intangible property.
property adjustment order An order made by the court in proceedings for
dIv~rce, separation, or nullity that affects rights of ownership of property belonging
to either spouse. Such orders include the transfer of property from one spouse to
another, settling property for the benefit of the other spouse or children, varying
marnage settlements, or extinguishing rights under such settlements. The courts
have exceptionally wide discretion in making property adjustment orders, and each
case WII.I depend on ItS own f~cts. The general aim of the discretion, and factors to
be considered, are identical WIth those listed in relation to *financial provision
orders; two other factors to be consid:red are the need to provide adequate housing
for both spouses, and especially for mmor children. and the need to allow each
spouse a share in the capital value of the family assets, especially the *matrimonial
home. The co~rts have power to order the sale of the matrimonial home or to make
the home subject .to a de~erred trust for sale, e.g. until the children grow up. As in
the case of financial prOVISIOn orders, the court must achieve a *clean break
~here:er poss.i~le. Property adjustment orders are often awarded in addition to
financial p~ovlS1on orders and may only be made on or after the granting of the
decree of divorce, separation, or nullity.
property in goods A right of *ownership in chattels.
property register See LAND REGISTRATION.
proponent n. The party who bears the evidential, and in some cases the persuasive
*burden of proof in relation to an issue in litigation. '
proportienallty ri. 1. A principle of the European Union ensuring that a
legislative measure IS introduced at EU level only when it is appropriate to have a
measure at that level, and that when local legislation is all that is needed, this will
be encouraged. See also SUBSIDIARITY. 2. A central provision of the *European
Convention on Human Rights. lt applies particularly to the *qualified rights and
wh:re the expression "necessary in a democratic society" is contained within the
article. Whether or not such a right has been violated will depend on whether the
interference with the ri~ht is p:-oportionate to the legitimate aim pursued by that
interference, Thus even If a policy that interferes with a Convention right might be
aImed. at securmg a legitimate purpose (e.g.the prevention of crime), this will not in
~tself justify the violation if the means adopted to secure the purpose are excessive
m the CIrcumstances.
propositus n. [Latin] 1. The person immediately concerned with an issue ",2. An
ancestor through whom descent is traced. 3. A testator when making hIS WIll.
propounder n. A person in a *probate action who claims that a disputed will is
valid.
proprietary estoppel See ESTOPPEL.
proprietor n. One who owns land. In the case of registered land, the registered
proprietor is the person entitled to the *legal estate and is recorded as such in the
proprietorship register (see LAND. REGISTRATlON). The ~wners of eqm~able interests are
protected by registration of their *mmor interests in the appropnate manner.
proprietorship register See LAND REGISTRATION.
prorogation n. See PARLIAMENT.
proscribed organization An organization or association declared to be forbidden
by the Home Secretary under the Terrorism Act 2000, because It appears to be
concerned with terrorist activities (see TERRORISM).
prosecution n. The pursuit of legal proceedings, particuI~rly crimin~l proceedings.
(The term is also used for the p~rty instituting the proceedmgs.) Criminal
prosecutions on indictment are m the name of the Crown and summary
prosecutions are in the name of an individual, usually a polrce officer, although a
private individual may bring a prosecutIOn (most pn~ate prosecutI~ns are f~r
assault). The *Attorney General can intervene III a pnvate prosecution and either
take it over or abandon it. Many government departments and other authorities
have power to prosecute; for example, the Inland Revenue, t~e Department for
Work and Pensions, and local authorities. Under the Prosecution of Offenders Act
1985,the duty of conducting prosecutions falls. principa~ly upon the *Cro~ .
Prosecution Service, which exercises the functions previously vested III the DI:ector
of Public Prosecutions, its head. It also takes over the conduct of.most proceedings
instituted by the police. The *Attorney General's consent. I~ required before
prosecution for some offences, e.g. in cases involving official secrets.
prosecutor n. The person who institutes criminal proceedings on behalf of the
Crown. See PROSECUTlON.
prospectus n. A document inviting the public to invest in shares or debentures of
a public company (see FLOTATION). The prospectu~ of a *listed company (called the .
listing particulars) must contain the information required by the St?ck Exchange,
the prospectus of an unlisted company must comply with the FinanCIal Services Act
1986.
prostitution n. The offering of her body by a woman for sexual intercourse or
other sexual activities in return for payment. Prostitution itself is not a crime, but
various activities related to it are (see BROTHEL; KERB CRAWLING; LIVING ON IMMORAL
EARNINGS' PROCUREMENT; SOLICITING). Advertising details of prostitutes may amount to
a *conspiracy at common law or an <obscene public~tion. Certain offences
concerned with brothels and living on immoral earmngs also apply to male
prostitution.
protected child A child whom someone wishes to adopt and over whom a lo.c~l
authority must exercise supervision. Under the 1976 Ado~tIOn Act, such supervIsIO~
is only required when the child was not placed f?r adoption byan adoption agency,
in agency cases, the agency itself will be responsible for supervision.
protected goods (under the Consumer Credit Act 1974)Goods that are the subject
matter of a regulated *hire purchase or *conditional sale agreement of which the
debtor is in breach, but under which he has already paid to the creditor one-third or
more of the total price of the goods, which remain in the ownership of the creditor.
The creditor may not recover possession of the goods except on an order of the
court, which may allow the debtor further time to pay. The restriction does not
apply if the debtor has terminated the agreement.
protected occupancy The right of an agricultural worker to occupy a *tied
cottage with statutory protection similar to that of a *protected tenancy. Protected
occupancies have been replaced by *assured agricultural occupancies by the Housing
Act 1988,but protected occupancies already in existence continue to have the same
protection as before.
protected person A head of state (or a member of a corporate head of state),
head of government, or minister for foreign affairs, or any member of his family
accompanying him; or a representative or official of a state or of an
intergovernmental international organization who is entitled under international
law to special protection from personal injury or any member of his family who is
also a member of his household. The Internationally Protected Persons Act 1978
incorporates into English law the provisions of the 1974 New York Convention on
Crimes against Internationally Protected Persons. The Act gives jurisdiction to
English courts to try those charged with committing certain serious acts against
protected persons (e.g. rape, assault, causing actual bodily harm, wounding or
inflicting grievous bodily harm, kidnapping, and certain attacks on premises), even if
the alleged acts were committed outside the UK. It also creates offences of
threatening to commit any of the above acts anywhere in the world, and extends
jurisdiction to various types of attempts and assistance. It is no defence to any of
these offences that the defendant did not know that the victim was a protected
person.
protected shorthold tenancy See ASSURED SHORTHOLD TENANCY.
protected site A site for which planning permission has been granted for one or
more mobile homes to be set up.
protected state A state that, although nominally sovereign, is under the
protection of another state. Usually the protected state allows the protector full
control over its external affairs but retains control over its internal affairs.
Examples are the Kingdom of Bhutan under the protection of India and the State of
Brunei under British protection. A protected state is sometimes called a
protectorate.
protected tenancy A contractual residential tenancy in which the tenant has the
right to a *fair rent and *security of tenure. Protected tenancies have been replaced
by *assured tenancies under the Housing Act 1988,but protected tenancies already
in existence continue to have the same protection as before. To qualify as a
protected tenancy, the premises must be let as a separate dwelling that is within
certain rateable value limits and must have been created before the Housing Act
1988 came into force (15 January 1989). There are some exceptions, including lettings
to students, holiday lettings, local authority housing, and lettings in which the rent
includes payment for board or attendance. If a landlord wishes to terminate a
protected tenancy he must first terminate the contractual tenancy in the usual way
(see NOTICE TO QUIT). A *statutory tenancy then comes into existence and the landlord
can obtain possession only by a court order. To do this he must have suitable
grounds, such as nonpayment of rent, provision of suitable alternative .
accommodation for the tenant, or if the landlord needs the property for himself or
one of his family to live in.
There were formerly two kinds of protected tenancy: controlled and regulated. All
controlled tenancies have now been converted into *regulated te~ancles. (See .
CONVERTED TENANCY.) Furnished tenancies have the same protection as unfurmshed
tenancies, but they are more likely to fall within one of the exceptions to
protection. See alsoASSURED SHORTHOLD TENANCY; SECURE TENANCY; RESTRICTED CONTRACT.
protection and indemnity association (or club) An a~so~ia~ion of shipowners
formed to meet, out of funds contributed by its members, liabilities that anse from
maritime activities and are not covered by insurance.
protectionism n. The practice of protecting states or EU interests by im?os~ng .
trade barriers and customs duties to prevent imports from abroad. ProtectlOmsm IS
the opposite of free trade. As a party to the *General Agreement on Tariffs and
Trade and the *World Trade Organization, the EU seeks to ensure free trade not
only between the members of the EU and the *European E~on.omic Area but also
with other countries, although not to the same extent as within the ED.
protective award An award made by an employment tribunal ordering an
employer to continue to pay wages for a "protec~ion period" to emp~oyees who have
been made redundant in breach of the consultatlOn reqmrements Iaid down in the
Trade Union and Labour Relations (Consolidation) Act 1992 (see REDUNDANCY). When an
employer is proposing to dismiss as redundant 20 or more employees at one .
establishment within a period of 90 days or less, he must consult ~th ~ppropnate
representatives of the affected employees. Consultations must bel?m within good.
time, in any event 90 days before the first dismissal takes effect (If the employer IS
proposing to dismiss 100 or more emp.loyees within the 90 days) or at least 30 days
beforehand (if the employer is proposmg to dismiss betw~en 20 and 99.employees).
Failure to comply with these requirements gives a recognized trade union. an
elected employee representative, or an affected employee a nght to apply to an
*employment tribunal. In the absence of special circumstances rendenng It not
reasonably practicable to comply with these requirements, th: employment tribunal
is empowered to make such a protective award. It has discretion regardmg the
duration of the protected period, subject to a maximum of 90 days. Th~ Act ~lves
the tribunal guidance that the protected p~riod should be just and :qUltable m all
the circumstances having regard to the seriousness of the employer s default. Each
employee covered by the award is entitled to one week's pay for each week of the
protected period. If the employer fails to make a~y or all of the payments due for
this period, the individual employee may complain, within three months, to an
employment tribunal, which may order payment.
protective trust (alimentary trust) A trust for a period no lo~ger t~an the
beneficiary's life, the period ending if certain events (commonly including the
bankruptcy of the beneficiary) take place. At the o~curr~nce of such an event, the
income of the property is applied at the absolute dlscre~lOn of the trustees ~or the
beneficiary or his family, the beneficiary no longer having any right to receive the
income himself.
protector of settlement The first person entitled, un~er a *st~ict sett~em~nt of
land, to a life interest preceding the *entailed interest or (If there IS no prior lI~e
interest) the settlor. Under the Fines and Recoveries Act 1833, a person entItled m
<remainder to an entailed interest can only bar the entail completely, so as to create
a fee simple in remainder, if the protector's consent is given by deed on or before
execution of the disentailing deed. Without the protector's consent only the tenant
in tail and his issue are barred; when they die out the land passes to the person next
entitled in remainder or in reversion (in pre-1926 terminology, a base fee).
protest n. 1. An express indication that an act is not to carry an implication that
might otherwise attach to it. For example, when a payment is made under protest,
the payer does not agree that he is liable for the payment. 2. A procedure by which
a *notary provides formal evidence of the *dishonour of a bill of exchange. When a
*foreign bill has been dishonoured by nonacceptance or nonpayment it is handed to
the notary, who usually presents it again. If it is still dishonoured, the notary
attaches a slip showing the answer received and other particulars - a process called
noting. The protest, in the form of a formal document, may then be drawn up at a
later time.
protocol n. 1. The original draft of a document. 2. An international agreement of
a less formal nature than a *treaty. It is often used to amend treaties. It may also be
an instrument subsidiary or ancillary to a *convention, in which case it may deal
with points of interpretation and reservations. 3. A code of procedure. 4. Minutes
of a meeting setting out matters of agreement.
provable debt A debt in respect of which a creditor can claim a share of a
bankrupt's assets. A provable debt must either be incurred by the bankrupt before a
*bankruptcy order is made against him or arise after the order is made as a result
of an obligation that existed beforehand. Compare NONPROVABLE DEBT.
proving a will Obtaining *probate of a will or *letters of administration cum
testamento annexo.
provisional damages Damages given in personal injury cases when the injuries
sustained may cause in the future some serious disease or other serious
deterioration in the claimant's physical or mental condition. The court has the
power to make an immediate award of damages on the basis of the claimant's
present condition and order that he can come back within a specified time for a
further award if the disease or condition develops.
provisional liquidator A person appointed by the court to conduct the
*compulsory winding-up of a company pending the appointment of a *liquidator.
Either the *official receiver or a qualified *insolvency practitioner may be
appointed.
provisional orders Orders made by government ministers but requiring
confirmation by Act of Parliament (a Provisional Order Confirmation Act) before
becoming law. They do not, therefore, constitute *delegated legislation. Provisional
orders were formerly used extensively, primarily to confer powers on local
authorities, but have been largely superseded by *special procedure orders.
proviso n. A clause in a statute, deed, or other legal document introducing a
qualification or condition to some other provision, frequently the one immediately
preceding the proviso itself.
In criminal appellate procedure, applying the proviso occurs when the Court of
Appeal uses the power conferred by the proviso to section 2 of the Criminal Appeal
Act 1968. This empowers the court to dismiss an appeal if it considers that no
miscarriage of justice has occurred, even though it believes that the point raised in
the appeal might be decided in favour of the appellant.
provocation n. Conduct or words causing someone to lose his self-control.
Provocation is not recognized as a *general defence to a criminal charge in English
law, though what otherwise would have been murder may be reduced to
manslaughter if provocation is shown (it is not, however, a defence to a charge of
attempted murder).
The test for provocation is whether the acts or words involved did in fact make
the defendant lose his self-control and if so, whether they would also have made a
reasonable man in the defendant's position do the same. This is a question of fact
for the jury to decide in each case. A reasonable man for these purposes must be a
person of the same sex and age as the defendant and sharing any characteristics of
the defendant that might affect the seriousness of the provocation. For example, a
sexually impotent defendant might be more easily provoked by taunts about his
impotence than an ordinary man. The jury would therefore have to consider how a
reasonable impotent man would have reacted. However, such characteristics as
intoxication from alcohol or drugs cannot be attributed to the reasonable man. See
also BATTERED SPOUSE OR COHABITANT.
proxy n. A person (not necessarily a company member) appointed by a company
member to attend and vote instead of him at a company meeting. Directors often
offer themselves as proxies by sending out proxy forms with the notice of the
meeting. When this is done at company expense, forms must be sent to all company
members alike. In the case of a *listed company, the form must enable members to
direct the proxy whether to vote for or against the resolution; in other cases, it may
specify that the proxy is to use his discretion. Usually a proxy can vote only upon a
poll (see VOTING). In private companies the proxy can speak at the meeting.
psychopathic disorder For the purposes of the Mental Health Act 1983,a form
of *mental disorder consisting of a persistent disorder or disability of mind (which
mayor may not include significant impairment of intelligence) that results in
abnormally aggressive or seriously irresponsible conduct and requires, or is
susceptible to, medical treatment.
Public Accounts Committee A nondepartmental select committee of the House
of Commons, established in 1861 to examine government expenditure and report on
any irregularity or other matter to which it considers that attention should be
drawn. It has 15 members and its chairman is customarily a member of the
Opposition.
public Act See ACT OF PARLIAMENT.
publication n. 1. (in the law of *defamation) The communication of defamatory
words to a person or persons other than the one defamed. In the English law of tort,
publication to at least one other person must be proved. Communication between
husband and wife does not amount to publication, but communication by the
defendant to the spouse of the claimant is sufficient. Dictation of a defamatory
statement to a secretary or typist is publication. Publication to persons other than
the one defamed is not required in Scottish law or in criminal libel. 2. (in copyright
law) The issuing of reproductions of a work or edition to the public. Protection
under the Copyright, Designs and Patents Act 1988 may depend on whether the work
has been published 3. For the purposes of the Obscene Publications Acts, see OBSCENE
PUBLICATIONS.
public Bill See BILL.
public body Any body, corporate or otherwise, that performs its duties and
exercises its powers for the public benefit, as opposed to private gain. Under the
l.ocal ~,:,ernment Act 1972, public bodies include local authorities, trustees,
comnussionor-; and those who have duties to provide cemetaries and markets and
act for the improvement of any place, or who have powers to issue or levy
*precepts.
public company A type of registered company that can offer its shares to the
public (compare PRIVATE COMPANY). Its memorandum of association must state that it
ISa public co~pany, that. its name er:ds with the words "public limited company" (or
plc), and that :ts "authorized capital ISat least the authorized minimum (.50,000). It
cannot do busmess until It has allotted shares with a nominal value corresponding
With the authorized minimum. It cannot allot shares except upon payment of onequarter
of the~r nommal value plus any *share premium. .12,500 is therefore its
rmmmum capital, It thus may not have much wealth or substance, although many
assume the c~ntrary. Under the Companies Act 1985 an undertaking to do work or
perform services ISnot ~n acceptable *consideration for shares in a public company,
and other non-cash considerations are subject to independent valuation and must be
transferred to the company within five years of *allotment. See also FLOTATION; STOCK
EXCHANGE.
public corporation A corporation established to perform a public function,
frequently commercial bU~ not nec~ssarilyso (it may be social advisory, or of any
other character). Thus bodies established to manage nationalized industries are
public corporations, as are such bodies as English Nature. A public corporation is
normally a stat~tory corpo~ation, i.e. established by Act of Parliament; exceptions
mclu*de the British Broadcastmg Corporation, which was established by royal charter.
The prrvatization programme that has been in operation in the UK since the 1980s
has reduced the number of public corporations as their functions have been taken
over by ~ublic companies and the government has divested itself, either wholly or
su?~t~ntlally, of the statutor~ an? financial commitment to the provision of public
utilities (such as telecommumcatIOns, water, electricity, and gas). As these
corporations have been privatized, *regulatoryagencies have been established as
watchdog bodies.
public document A document concerned with a public matter, made under a
public duty to inquire into all the circumstances recorded and meant for public
inspection. Statements in public documents are admissible as an exception to the
rule agamst "hearsay evidence.
public duties Certain public officers, including magistrates, councillors, school
and college governors, and members of health authorities, are entitled under the
Employment Rights Act 1996 to time off work to fulfil their official duties. An
employee entitled to time off work for public duties does not have a statutory right
to be paid fo: hIS periods of absence. No specific right to time off for jury service is
g~ven, but failure to attend jury service is contempt of court, therefore an implied
nght to tune off probably exists.
public examination In *bankruptcy proceedings, an investigation into the
conduct, dealmgs, and property of a debtor. It takes place in a court and the debtor
IScompelled to attend and answer questions on oath. The *official receiver has a
discretion whether or not to apply to the court for a public examination after a
bankruptcy order is made. He must apply (unless the court directs otherwise) if the
creditors request it.
public general Act See ACT OF PARLIAMENT.
public good A special defence to some charges under the Obscene Publications
Act. See OBSCENE PUBLICATIONS.
public house Under the Local Government Act 1966,any premises licensed for the
sale of intoxicating liquor for consumption on the premises, this (apart from any
ancillary or incidental trade or business) being the only trade carried on there.
public law The part of the law that deals with the constitution and functions of
the organs of central and local government, the relationship between individuals
and the state, and relationships between individuals that are of direct concern to the
state. It includes constitutional law, administrative law, tax law, and criminal law.
Compare PRIVATE LAw.
public limited company (pic) See LIMITED COMPANY; PUBLIC COMPANY.
public mischief Conduct damaging the interests of the community; for example,
making bogus telephone calls to the police. Until 1975 this was regarded as a crime
but it is now no longer so regarded, nor is conspiracy to effect a public mischief.
There is, however, a special statutory offence of *wasting police time (but not, for
example, the time of ambulancemen or firemen). See also BOMB HOAX; SENDING
DISTRESSING LETTERS.
public morals The basic moral structure of society. Judges have occasionally said
that they retain a general overriding discretion to punish as crimes behaviour that
is destructive of public morals but it is not at all clear to what extent they should
do so, although some crimes, such as incest, are presumably based on moral factors.
The abolition of the crimes of homosexual conduct and suicide was based on the
assumption that matters of morals that do not directly affect other people should
not be the subject of criminal legislation. See also CORRUPTION OF PUBLIC MORALS.
public nuisance See NUISANCE.
public office Employment in the *Civil Service or in any other capacity in which
remuneration is provided by Parliament or the Consolidated Fund. Public office also
includes employment of an officer to whom the Overseas Service Act 1958applies
and employment funded by the Church Commissioners, the Agricultural Research
Council, the Crown Estate Commissioners, and the Metropolitan Police Fund.
public or general rights See DECLARATION CONCERNING PUBLIC OR GENERAL RIGHTS.
public place A place to which the public has access. The main offences relating to
public places are: (1) being found drunk or being drunk and disorderly in a public
place; (2) carrying a *firearm, *offensive weapon, or bladed article in a public place;
(3) *soliciting in a public place; and (4) displaying support for a *proscribed
organization in a public place. See also OFFENCES AGAINST PUBLIC ORDER.
public policy The interests of the community. If a contract is (on common-law
principles) contrary to public policy, this will normally make it an *illegal contract.
In a few cases, however, such a contract is void but not illegal, and is treated slightly
more leniently (for example, by *severance). Contracts that are illegal because they
contravene public policy include any contract to commit a crime or a tort or to
defraud the revenue, any contract that prejudices national safety or the
administration of justice, and any *immoral contract. Contracts that are merely void
include contracts in *restraint of trade and in *restraint of marriage and *marriage
brokage contracts.
public procurement Obtaining goods or services for the use of the public sector.
Procurement in this sector is often formalized, and contracts for public works,
supplies, or services, which can be large, are advertised for formal tender. In the
1970s the EU,finding that most public contracts in the EU were placed with local
suppliers, issued directives requiring that large public supply and works contracts
must be advertised throughout the EUand be open to all who meet the
requirements set out in them. These directives have been amended and revised and
now ~xt.end to cover services and utility contracts. Three alternative procedures for
submitting tenders are set out in the directives; of these, the open procedure is
generally regarded as the fairest and is the one that must most often be used. The
basic principle for all three procedures is that if the value of a contract for public
works, ~upplies, or services (or of a contract for utilities whether in the public sector
or not) IS over a certain minimum financial level, the contract must be advertised in
the EU's Official Journal and suppliers from all EU states are entitled to put in
tenders. The company winning the contract must be chosen fairly in accordance
with formulae set down in the relevant directive. When the procedure is not
followed, there is a right to claim damages under separate remedies directives.
public prosecutor See DIRECTOR OF PUBLIC PROSECUTIONS.
public trust A trust for the benefit of the public, which mayor may not be a
*charitable trust.
Public Trustee A public officer, appointed under the Public Trustee Act 1906,who
is a *corporation sole and who may act as a "custodian trustee, a *judicial trustee,
or an ordinary trustee. The Public Trustee cannot accept certain trusts, e.g. those
exclusively for charitable or religious purposes, those governed by foreign law, or
those involving the management of a business. He has a duty to administer small
estates unless there is some good reason for his refusal.
puisne adj. [from Old French puisne, later born) Inferior; of lesser rank.
puisne jUdge Any ordinary judge of the High Court. Puisne judges are referred to
as (for example) "Mr Justice Smith", even though they are knighted upon
appointment. They must be barristers of at least ten years' standing.
puisne mortgage A legal mortgage of unregistered land in which the mortgagee
does.not keep the title deeds of the land as security. Usually a first mortgagee
retams the deeds; thus subsequent mortgages will be puisne and should be protected
by registration (see REGISTRATION OF ENCUMBRANCES).
punishment n. A penalty imposed on a defendant duly convicted of a crime by an
authorized court. The punishment is declared in the *sentence of the court. The two
basic principles governing punishment are *nullum crimen sine legeand *nulla poena
sine lege. The powers of the court to punish offenders also depend on whether the
crime is an *indictable offence or a *summary offence.
There are a number of different theories of punishment, and different aims and
purposes underly the legal provisions of the English criminal system. The concept of
retribution implies that a criminal merits his just punishment because he has done
something morally or socially evil. Another aspect of retribution implies that the
punishment should be related to the harm done by the crime, rather than to the
moral guilt of the criminal. The utilitarian school, by contrast, believes that all
punishment is evil, insofar as it adversely affects human happiness. It can only be
justified, therefore, if it prevents greater unhappiness or harm. This is the basis of
the theory of deterrence, in which the punishment is aimed at deterring the
criminal from repeating his offences or deterring others from committing similar
acts. Custodial sentences may be required to protect the public from further harm,
particularly when the crimes involve violence. Sometimes these sentences are also
justified as an expression of public condemnation and outrage. Recent thinking
replaces the concept of retribution by the belief that sentences should be designed
to assist in the rehabilitation of the criminal. To some extent these concepts are
accepted in relation to young offenders, and are also reflected in the system of
*parole (see also SPENT CONVICTION). Legislators and judges have to bear in mind these
concepts in laying down and applying sentences. They must also be aware of
society's need for a humane system of criminal justice.
Clearly the extent to which crimes should be punished without proof of
*intention or *recklessness (e.g.crimes of *negligence and *strict liability) depends
on which theory of punishment one adopts. Parliament has created a large number
of so-called regulatory offences (e.g. road traffic offences and offences relating to
production of food), which usually do not involve moral guilt and are often
punished despite the absence of *mens rea. It is also a matter of considerable
controversy whether or not the criminal law should punish morally objectionable
conduct that does not obviously harm anyone (e.g. obscene publications and various
sex-related offences).
The European Convention on Human Rights (signed 1950) forbids the use of
"inhuman or degrading" punishment; this prohibition is now part of UK law as a
consequence of the *Human Rights Act 1998 (see DEGRADING TREATMENT OR
PUNISHMENT; INHUMAN TREATMENT OR PUNISHMENT). Similarly, the prohibition on the use
of arbitrary punishment, as set out in Article 7 of the Convention, is now
incorporated into the Human Rights Act. This provision makes unlawful the use of
criminal penalties that are not prescribed by law.
punitive damages See EXEMPLARY DAMAGES.
pur autre vie See ESTATE PUR AUTRE VIE.
pur cause de vicinage See PROFIT A PRENDRE; COMMON.
purchaser n. 1. (in land law) Any person who acquires land otherwise than by
mere operation of law. Thus a purchaser may be a mortgagee or one to whom land
is given or bequeathed as well as one who buys land for money or other
consideration. A tenant in tail (whose interest devolves upon him automatically on
his ancestor's death) is not a purchaser, nor is one who acquires title by *adverse
possession. 2. A *buyer.
purchaser for value without notice One who acquires land either in return
for money or other consideration having monetary value or under a marriage
settlement and who does not know and has no reason to know of an encumbrance
that adversely affects the land. Such a purchaser is not bound by certain equitable
encumbrances, such as restrictive covenants created before 1926 or the rights of
beneficiaries under a trust in unregistered land. However, in order to take free of
encumbrances, such a purchaser must act in good faith (bona fide), and, in any event,
most equitable encumbrances are capable of registration (see REGISTRATION OF
ENCUMBRANCES) and a purchaser is deemed to know of any interest that is registered.
Some encumbrances in registered land may be *overriding interests and will bind a
purchaser whether he knows of them or not. Legal encumbrances (such as legal
easements) always bind a purchaser of the land whether or not he knows of their
existence.
purpose trust A trust that is not for the benefit of a human beneficiary and is
not a *charitable trust. Such trusts are normally invalid as there is no one to
enforce them; exceptions that are valid include trusts for the benefit of individual
animals, for the maintenance of individual graves, and for the saying of masses. The
courts, however, may be willing to construe what appears to be a purpose trust (e.g.
a trust for a sports ground to be used by employees of a firm) as a trust for human
beneficiaries, and thus valid.
putative father A man alleged to be the father of an illegitimate child. If the
court accepts the mother's allegations, the man is declared the putative father and
may be ordered to make periodical payments for the maintenance of the child by
the Child Support Agency (see CHILD SUPPORT MAINTENANCE) or to pay a lump sum by
the court. The putative father's name may also be entered on the child's birth
certificate. See also ILLEGITIMACY.
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