ownership of property. Property that has been abandoned is res nullius (a thing
belonging to no one), and a person taking possession of it therefore acquires a
lawful title. An item is regarded as abandoned when it can be established that the
original owner has discarded it and is indifferent as to what becomes of it: such an
item cannot be the subject of a theft charge. However, property placed by its owner
in a dustbin is not abandoned, having been placed there for the purpose of being
collected as refuse. In marine insurance, abandonment is the surrender of all rights
to a ship or cargo in a case of *constructive total loss. The insured person must do
this by giving the insurer within a reasonable time a notice of abandonment, by
which he relinquishes all his rights to the ship or cargo to the insurer and can treat
the loss as if it were an actual total loss. 2. In civil litigation, the relinquishing of
the whole or part of the claim made in an action or of an appeal. Any claim is now
considered to be abandoned once a *notice of discontinuance is served, according to
rule 38 (1) of the *Civil Procedure Rules. 3. The offence of a parent or guardian
leaving a child under the age of 16 to its fate. A child is not regarded as abandoned
if the parent knows and approves steps someone else is taking to look after it. The
court may allow a child to be adopted without the consent of its parents if they are
guilty of abandonment.
abatement n. 1. (of debts) The proportionate reduction in the payment of debts
that takes place if a person's assets are insufficient to settle with his creditors in
full. 2. (of legacies) The reduction or cancellation of legacies when the estate is
insufficient to cover all the legacies provided for in the will or on intestacy after
payment of the deceased's debts. The Administration of Estates Act 1925 provides
that general legacies, unless given to satisfy a debt or for other consideration, abate
in proportion to the amounts of those legacies; specific and demonstrative legacies
then abate if the estate is still insufficient to pay all debts, and a demonstrative
legacy also abates if the specified fund is insufficient to cover it. For example, A's
estate may comprise a painting, .300 in his savings account, and .700 in other
money; there are debts of .100 but his will leaves the painting to B,.500 from the
savings account to C. .800 to D, and .200 to E. B will receive the painting, C's
demonstrative legacy abates to .300, and after the debts are paid from the
remaining .700, D's and E's general legacies abate proportionately, to .480 and .120
respectively. When annuities are given by the will, the general rule is that they are
valued at the date of the testator's death, then abate proportionately in accordance
with that valuation, and each annuitant receives the abated sum. All these rules are
subject to any contrary intention being expressed in the will. 3. (in land law) Any
reduction or cancellation of money payable. For example a lease may provide for an
abatement of rent in certain circumstances, e.g. if the building is destroyed by fire,
and a purchaser of land may claim an abatement of the price if the seller can prove
his ownership of only part of the land he contracted to sell. 4. (of nuisances) The
termination, removal, or destruction of a *nuisance. A person injured by a nuisance
has a right to abate it. In doing so, he must not do more damage than is necessary
and, if removal of the nuisance requires entry on to the property from which it
emanates, he may have to give notice to the wrongdoer. A local authority can issue
an abatement notice to control statutory nuisances. 5. (of proceedings) The
termination of civil proceedings by operation of law, caused by a change of interest
or status (e.g. bankruptcy or death) of one of the parties after the start but before
the completion of the proceedings. An abatement did not prevent either of the
parties from bringing fresh proceedings in respect of the same cause of action. Pleas
in abatement have been abolished; in modern practice any change of interest or
status of the parties does not affect the validity of the proceedings, provided that
the cause of action survives.
abduction n. The offence of taking an unmarried girl under the age of 16 from
the possession of her parents or guardians against their will. It is no defence that
the girl looked and acted as if she was over 16 or that she was a willing party. No
sexual motive has to be proved. It is also an offence to abduct an unmarried girl
under the age of 18 or a mentally defective woman (married or unmarried) for the
purpose of unlawful sexual intercourse. In this case a defendant can plead that he
had reasonable grounds for believing that the girl was over 18, or that he did not
know the woman was mentally defective, respectively. It is also an offence to abduct
any woman with the intention that she should marry or have unlawful sexual
intercourse with someone, if it is done by force or for the sake of her property. It is
also an offence for a parent or guardian of a child under 16 to take or send him out
of the UKwithout the consent of the other parent or guardians. Belief that the
other person has or would have consented is a defence. It is also an offence for any
other person to remove or keep such a child, without lawful authority or reasonable
excuse, from the person with lawful control of him. Proof of belief that the child
was 16 is a defence here. See also KIDNAPPING.
abet vb. See AID AND ABET.
abortion n. The termination of a pregnancy: a miscarriage or the premature
expulsion of a foetus from the womb before the normal period of gestation is
complete. It is an offence to induce or attempt to induce an abortion unless the
terms of the Abortion Act 1967and the Abortion Regulations 1991 are complied with.
The pregnancy can only be terminated by a registered medical practitioner, and two
registered medical practitioners must agree that it is necessary, for example because
(1) continuation of the pregnancy would involve a risk to the life or physical or
mental health of the pregnant woman (or of other children of hers) that is greater
than the risk of terminating the pregnancy, or (2) that there is a substantial risk
that the child will be born with a serious physical or mental handicap. However,
doctors are not obliged to perform abortions if they can prove that they have a
conscientious objection to so doing. A husband cannot prevent his wife having a
legal abortion if she so wishes. Compare CHILD DESTRUCTION.
absconding n. The failure of a person to surrender to the custody of a court in
order to avoid legal proceedings. See alsoSURRENDER TO CUSTODY.
absence n. (in court procedure) The nonappearance of a party to litigation or a
person summoned to attend as a witness.
absent-mindedness n. See AUTOMATISM.
absent parent See NONRESIDENT PARENT; CHILD SUPPORT MAINTENANCE.
absolute assignment See ASSIGNMENT.
absolute discharge See DISCHARGE.
absolute privilege The defence that a statement cannot be made the subject of
an action for *defamation because it was made in Parliament, in papers ordered to
be published by either House of Parliament, in judicial proceedings or a fair and
accurate newspaper or broadcast report of judicial proceedings, or in an official
communication between certain officers of state. Under the Defamation Act 1996,
the defence is also available for those reporting proceedings of the European Court
of Justice. Under certain circumstances defined by the 1996 Act the absol~te
privilege accorded to statements or proceedings in Parli~ment m~y be waived .
(waiver of privilege) to permit evidence to be adduced III an action for defamation.
Compare QUALIFIED PRNILEGE.
absolute right A right set out in the European Convention on Human Rights that
cannot be interfered with lawfully, no matter how important the public interest in
doing so might be. Absolute rights include *freedom of thought, conscience, and
religion and the prohibitions on *torture, *inhuman treatment or punishment, and
*degrading treatment or punishment. Compare QUALIFIED RIGHT.
absolute title Ownership of a *legal estate in registered land with a guarantee by
the state that no one has a better right to that estate. An absolute title to freehold
land is equivalent to an estate in fee simple in possession in unregistered land.
Absolute leasehold title, unlike *good leasehold title, guarantees that the lessor
has title to grant the lease. (Com pare POSSESSORY TITLE; QUALIFIED TITLE.) The title may
be subject to (1) *encumbrances and other entries noted on the register by means of
substantive registration (e.g.a registered legal charge or land charge); (2)minor
interests, such as that of a beneficiary under a trust, which may be protected by
means of "entry" on the register rather than by substantive registration; and (3)
*overriding interests (which by their nature do not appear on the register and must
be ascertained by search and enquiry). See also LAND REGISTRATION.
abstracting electricity The *arrestable offence, punishable with up to five years'
imprisonment and/or a fine, of dishonestly using, wasting, or diverting electricity.
This offence may be committed by someone who bypasses his electricity meter or
reconnects a disconnected meter or who unlawfully obtains a free telephone call
(though there is a more specific and potentially less serious offence to deal with
this). Bypassing a gas or water meter could constitute *theft of the gas or water.
Joyriding in a lift (or some similar abuse) might also constitute wasting electricity.
Computer hackers were formerly charged with offences of abstracting electricity
until the Computer Misuse Act 1990made *hacking a specific criminal offence.
abstraction of water The taking of water from a river or other source of
supply. It normally requires a water authority licence but there are exceptions; for
example when less than 1000 gallons are taken, when the water is for domestic or
agricultural use (excluding spray irrigation), or when it is removed in the course of
fire-fighting or land drainage. It has been held not to include gravitational loss from
a canal replacing water drawn from a connecting outfall channel.
abstract of title Written details of the *title deeds and documents that prove an
owner's right to dispose of his land or an interest in this. An abstract generally deals
only with the *legal estate and any equitable interests that are not *overreached. An
owner usually supplies an abstract of title before *completion to an intending
purchaser or mortgagee, who compares it with the original title deeds when these
are produced or handed over on completion of the transaction. An abstract of title
to registered land consists of *office copies of the entries in the register (together
with an *authority to inspect the register) and details of any other documents
necessary to prove the owner's title, such as a marriage certificate proving a
woman's change of surname. For unregistered land, the abstract of title must
usually trace the history of the land's ownership from a document at least 15 years
old (the *root of title) and give details of any document creating encumbrances to
which the land is subject. An abstract of title formerly comprised extracts, often in
abbreviated note form, but now generally comprises duplicate copies of the relevant
documents (an epitome of title). An abstract or epitome, with each copy document
marked as examined against the original, may be sufficient in itself to deduce title;
for instance, when a title is split into lots, the purchaser of each lot may be required
to accept an examined abstract or epitome in lieu of the original title deeds,
accompanied by an *acknowledgment and undertaking.
abuse of a dominant position Unlawful activities by large businesses, i.e.
usually those having a market share of at least 40% in at least one EU state.
Examples of such activities, which are contrary to *Article 82 of the Treaty of Rome
and the UK Competition Act 1998, include refusing to supply an existing customer
and engaging in *predatory pricing. The European Commission and the Office of
Fair Trading can fine businesses up to 10%of annual worldwide turnover for breach
of Article 82. The record individual fine, of 102M ECUs(now euros), was against
Volkswagen in 1998; it was upheld on appeal in July 2000.Under the UK Competition
Act 1998a .3.21M penalty was imposed on Napp Pharmaceuticals. See ANTICOMPETITIVE
PRACTICE.
abuse of process A tort where damage is caused by using a legal process for an
ulterior collateral purpose. (See also MALICIOUS PROSECUTION.) Actions that are
obviously frivolous, vexatious, or in bad faith can be stayed or dismissed by the
court as an abuse of process.
abusive behaviour See THREATENING BEHAVIOUR.
ABWOR Advice by way of representation: assistance formerly given to a person by
taking on his behalf any step in the institution or conduct of any proceedings
before a court or tribunal under the provisions of the legal advice and assistance
scheme. The legal aid scheme under which ABWOR was created was replaced by the
"Community Legal Service from 1 April 2000. Under the new scheme, the
authorization of legal representation for the purposes of a particular hearing is now
in a form called help at court.
ACAS Advisory Conciliation and Arbitration Service: a statutory body that was
established under the Employment Protection Act 1975; the composition and
functions of ACAS are now governed by Parts IV and VI of the Trade Union and
Labour Relations (Consolidation) Act 1992.ACAS was set up to promote the
improvement of industrial relations and the development of *collective bargaining.
In its conciliation function it may intervene, with or without the parties' consent. in
a *trade dispute to offer facilities and assistance in negotiating a settlement. It
employs conciliation officers who may assist parties to an application to an
employment tribunal to reach a settlement. Earlier legislation removed the necessity
for binding settlements of employment disputes to involve an ACAS conciliation
officer: settlements can now be made when the invididual has had independent legal
advice from a qualified lawyer.
ACAS does not itself arbitrate in trade disputes, but with the consent of both
parties it may refer a dispute to the *Central Arbitration Committee or to an
independent arbitrator. ACAS may give free advice to employers, employees, and
their respective representatives on matters of employment or industrial relations. It
issues *codes of practice giving guidance on such matters as disciplinary procedures
and *disclosure of information to trade unions. It may also conduct inquiries into
industrial relations problems, either generally or in relation to particular businesses,
and publish the results after considering the views of parties directly affected. ACAS
can charge for its services when it considers that this is appropriate. The law on
conciliation generally is contained in the Employment Tribunals Act 1996.
acceleration n. The coming into possession of a *future interest in any property
at an earlier stage than that directed by the transaction or settlement that created
the interest. For example, a landlord's interest in *reversion is accelerated if the
tenant surrenders the lease before it has expired. When a will bequeaths an interest
for life that lapses (e.g. because the legatee dies before the testator), the interest of
the person entitled in *remainder is accelerated and takes effect immediately the
testator dies.
acceptance n. Agreement to the terms of an *offer that, provided certain other
requirements are fulfilled. converts the offer into a legally binding contract. If the
method by which acceptance is to be signified is indicated by the offeror, that
method alone will be effective. If it is not, acceptance may be either express (by
word of mouth or in writing) or inferred from the offeree's conduct; for example, if
he receives goods on approval and starts to make use of them. The acceptance must
always, however, involve some action on the part of the person to whom the offer
was made: the offeror cannot assert that his offer will be treated as accepted unless
the offeree rejects it. The validity of an acceptance is governed by four principal
rules. (1) It must take place while the offer is still in force, i.e. before it has lapsed
(see LAPSE OF OFFER) or been revoked (see REVOCATION OF OFFER). (2)It must be on the
same terms as the offer. An acceptance made subject to any variation is treated as a
counteroffer. (3) It must be unconditional, thus an acceptance subject to contract is
not a valid acceptance. (4) It must be communicated to the offeror. Acceptance by
letter is treated as communicated when the letter is posted, but telex is equated
with the telephone, so that communication takes place only on receipt. However,
when the offer consists of a promise to confer a benefit on whoever may perform a
specified act, the offeror waives the requirement of communication as a separate
act. If, for example. he offers a reward for information, a person able to supply the
information is not expected to accept the offer formally. The act of giving the
information itself constitutes the acceptance. the communication of the acceptance,
and the performance of the contract.
acceptance of a bill The written agreement by the person on whom a *bill of
exchange is drawn (the drawee) that he will accept the order of the person who
draws it upon him (the drawer). The acceptance must be written on the bill and
signed. The signature of the drawee without additional words is sufficient, although
generally the word "accepted" is used as well. Upon acceptance the drawee becomes
the acceptor and the party primarily liable upon the bill. See also QUALIFIED
ACCEPTANCE.
acceptance supra protest (acceptancefor honour) A form of *acceptance of a
bill of exchange to save the good name of the drawer or an endorser. If a bill of
exchange has been either the subject of a *protest for dishonour by nonacceptance
or protested for better security, and it is not overdue, any person who is not already
liable on the bill may. with the consent of the holder. accept the bill supra protest.
Such an acceptance must be written on the bill. indicate that it is an acceptance for
honour, and be signed. The acceptor for honour engages that he will pay the bill on
due presentment if it is not paid by the drawee, provided that it has been duly
presented for payment and protested for nonpayment and that he receives notice of
these facts. He is liable to the holder and to all parties to the bill subsequent to the
party for whose honour he accepted.
access n. Formerly. the opportunity to visit a child that was granted (at the
discretion of the court) to its parent when the other parent had the care and control
of the child after divorce or when a custodianship order was in force. Since the
Children Act 1989came into force the concept of access has been replaced by that of
*contact. See also SECTION 8 ORDERS.
accession n. 1. The formal agreement of a country to an international *treaty.
The term is applied to the agreement of a country to become a member state of the
European Union. Member states accede to the Treaty of Rome or any other EU
treaty by signing accession agreements. 2. The process of a member of the royal
family succeeding to the throne, which occurs immediately on the death or
abdication of the previous sovereign.
access land Land to which the public will have access for the purposes of open-air
recreation under the Countryside and Rights of Way Act 2000. It includes land
shown as open country (mountain, moor, heath, or down) on a map in conclusive
form issued by an appropriate countryside body (the Countryside Agency or the
Countryside Council for Wales) or as common land, or land situated more than 600
metres above sea level, or land that has been dedicated as access land.
accessory n. One who is a party to a crime that is actually committed by someone
else. An accessory is one who either successfully incites someone to commit a crime
(counsels or procures)or helps him to do so (*aids and abets). The accessory is
subject to the same punishments and orders as the principal (see alsoCOMMON
DESIGN). It is an offence to assist a person whom one knows has committed an
arrestable offence with the intention of impeding his apprehension or prosecution.
See also IMPEDING APPREHENSION OR PROSECUTION.
accessory liability If a stranger knowingly and dishonestly assists a trustee in a
breach of trust he will be liable as an accessory. He will not usually have received
any trust assets; however, in assisting in the breach he will be personally liable to
account to the trust for any losses arising from his actions.
accident n. See FATAL ACCIDENTS; MISTAKE; ROAD TRAFFIC ACCIDENTS.
accident record book A record kept by the police of details of the accidents they
have investigated. Access to this is usually requested by solicitors acting in
subsequent litigation relating to *road traffic accidents. The Association of Chief
Police Officers Traffic Committee has issued guidelines on charges for such reports.
accommodation bill A bill of exchange accepted by an accommodation party,
i.e. a person who signs without receiving value and for the purpose of lending his
name (i.e. his credit) to someone else. An accommodation party is liable on the bill to
a *holder for value.
accomplice n. One who is a party to a crime, either as a *principal or as an
*accessory. See alsoCORROBORATION.
accord and satisfaction The purchase by one party to a contract of a release
from his obligations under it when the other party has already performed his side
of the bargain. A release of this one-sided nature constitutes a unilateral discharge
of the contract; unless granted by deed, it can at common law be effected only by
purchase, i.e. by a fresh agreement (accord) for which new consideration
(satisfaction) is given. If, for example, A is due to pay .1000on a particular date to B
for contractual services rendered, B might agree to accept .900 paid on an earlier
date, the earlier payment constituting satisfaction. Compare BILATERAL DISCHARGE. See
also (PROMISSORY) ESTOPPEL.
account n. A right at common law and later (more importantly) in equity,
requiring one party to a relationship (e.g.a partnership) to account to the other or
others for moneys received or due. An account may be: (1) open or current, where a
balance has not been agreed or accepted by all parties; (2) stated, where a balance
has been accepted as correct by all parties; or (3) settled, where a balance has been
accepted and discharged.
accounting records See BOOKS OF ACCOUNT.
account of profits A remedy that a claimant can claim as an alternative to
damages in certain circumstances, e.g. in an action for breach of *copyright. A
successful claimant is entitled to a sum equal to the monetary gain the defendant
has made through wronging the claimant.
accounts pl. n. A statement of a company's financial position. All registered
companies must present accounts (in the form prescribed by the Companies Act
1985) annually at a *general meeting. These consist of a *balance sheet and a *profitand-
loss account with *group accounts (if appropriate) attached. They are
accompanied by a directors' report and an auditor's report. All limited companies
must deliver copies of their accounts to the *Companies Registry (where they are
open to public inspection) but companies that are classified (on the basis of
turnover, balance sheet total, and number of members) as "small" or "medium-sized"
enjoy certain exemptions. Members are entitled to be sent copies of the accounts. See
alsoELECTIVE RESOLUTION; SUMMARY FINANCIAL STATEMENT.
accretion n. The process by which new land formations are legally assimilated to
old by a change in the flow of a water channel. In contrast to *avulsion, this process
involves a very slow, near imperceptible, natural action of water and other elements.
It would include, for example, the natural diversion of a boundary river leaving an
island, sandbank, or dry land where it previously flowed, the formation of islands at
a river mouth, and additions to a delta by the deposit of sand and soil upon the
shoreline. Accretion will allow the beneficiary state to legitimately claim title to the
new land so created. See alsoTHALWEG, RULE OF THE.
accumulation n. The continual addition of the income of a fund to the capital, so
that the fund grows indefinitely. Before the Accumulation Act 1800 accumulation
was permitted for the length of the perpetuity period (i.e. lives in being plus 21
years: see RULE AGAINST PERPETUITIES). The periods for which accumulation is now
permitted are shorter; they are listed in the Law of Property Act 1925and the
Perpetuities and Accumulations Act 1964 and include a period of 21 years from the
date of the disposition, the period of the life of the settlor, and the duration of the
minority of any person mentioned in the disposition. Income is often directed to be
accumulated if (for example) the beneficiary is a minor, or the interest in his favour
is protected or contingent, or if the terms of a trust are discretionary.
accusatorial procedure (adversary procedure) A system of criminal justice in
which conclusions as to liability are reached by the process of prosecution and
defence. It is the primary duty of the prosecutor and defence to press their
respective viewpoints within the constraints of the rules of evidence while the
judge acts as an impartial umpire, who allows the facts to emerge from this
procedure. Common-law systems usually adopt an accusatorial procedure. See also
BURDEN OF PROOF. Compare INQUISITORIAL PROCEDURE.
acknowledgment n. 1. The admission that a debt is due or a claim exists. Under
the Limitation Act 1980,a written acknowledgment by a debtor or his agent causes
the debt to be treated as if it had accrued on the date of the acknowledgment,
provided that the limitation period is still current at that date. The result is that the
limitation period of six years for bringing an action to recover the debt runs from
the date of acknowledgment, rather than the date on which the debt in fact arose.
See also LIMITATION OF ACTIONS. 2. Confirmation by the signatory to a document that
the signature on the document is his own. For example, the Wills Act 1837 requires
that the testator's signature on the will be made or acknowledged in the presence of
at least two witnesses present at the same time. Since January 1983 it has also been
possible for a witness to acknowledge his signature in the presence of the testator.
acknowledgment and undertaking Confirmation in a *title deed that a
person may see and have copies of relevant deeds not in his possession
(acknowledgment), with a promise from the holder of them to keep them safely
(undertaking). Thus when part of an owner's land is sold, he keeps his deeds to the
whole but in the conveyance gives this acknowledgment and undertaking to the
purchaser, who can then prove his title to the part from copies of the earlier deeds
and by calling for production of the originals. In the majority of cases the vendor
gives the purchaser all title documents relating solely to the land conveyed, and an
acknowledgment and undertaking is only necessary when this does not happen. Note
that personal representatives and fiduciary owners will normally give only an
acknowledgment, no undertaking. Breach of an undertaking gives rise to an action
in damages.
acknowledgment of service A response by a defendant to a claim. A defendant
who intends to contest proceedings brought against him by a claimant must
respond to the claim by filing an acknowledgment of service and/or by filing a
*defence. Acknowledgments of service are used if the defendant is unable to file a
defence within the required time or if the defendant intends to dispute the
jurisdiction of the court, By acknowledging service a defendant is given an extra 14
days for filing the defence. In effect this means that the defendant has a 28-day
period after service of the claim before the defence must be served. Once the
defendant has returned the relevant section of the acknowledgment of service form,
the court must notify the claimant in writing.
ACP states The African, Caribbean, and Pacific states that are associated with the
European Union through the Lome Convention. This convention, which was signed
at Lome (Togo)in 1975, provides for cooperation in matters of commerce between
ACPstates and EU states, including access to the EU market for products from the
ACPcountries. The Convention also provides for cooperation in industrial and
financial matters.
acquiescence n. Express or implied *consent. In law, care must be taken to
distinguish between mere knowledge of a situation and positive consent to it. For
example, in the defence of *volentinon fit injuria an injured party will not be
regarded as having consented to a risk simply because he knew that the risk existed.
acquired rights See RELEVANT TRANSFER.
acquis communautaire [French] The body of *Community legislation by which
all EU member states are bound.
acquittal n. A decision by a court that a defendant accused of a crime is innocent.
A court must acquit a defendant following a verdict of *not guilty or a successful
plea of *autrefois acquit or *autrefois convict. Once acquitted, a defendant cannot be
retried for the same crime on fresh evidence, but an acquittal in a criminal court
does not bind civil courts (for example, in relation to a libel charge against someone
alleging the defendant's guilt).
action n. A proceeding in which a party pursues a legal right in a civil court. See
also IN PERSONAM; IN REM.
active trust (special trust) A trust that imposes duties on the trustee other than
that of merely handing over the trust property to the person entitled to it (compare
BARE TRUST). These duties may impose a specific obligation on the trustee or confer a
discretion on him.
act of God An event due to natural causes (storms, earthquakes, floods, etc.) so
exceptionally severe that no-one could reasonably be expected to anticipate or guard
against it. See FORCE MAJEURE.
Act of Parliament (statute) A document that sets out legal rules and has
(normally) been passed by both Houses of *Parliament in the form of a *Bill and
agreed to by the Crown (see ROYAL ASSENT). Under the Parliament Acts 1911 and 1949,
however, passing of public Bills by the House of Lords can be dispensed with, except
in the case of Bills to extend the duration of Parliament or to confirm provisional
orders. Subject to these exceptions, the Lords can delay Bills passed by the House of
Commons; it cannot block them completely. If the Commons pass a money Bill (for
example, one giving effect to the Budget) and the Lords do not pass it unaltered
within one month, it may be submitted direct for the royal assent. Any other Bill
may receive the royal assent without being passed by the Lords if the Commons pass
it in two consecutive sessions and at least one year elapses between its second
reading in the first session and its third reading in the second.
Every modern Act of Parliament begins with a long title, which summarizes its
aims, and ends with a short title, by which it may be cited in any other document.
The short title includes the calendar year in which the Act receives the royal assent
(e.g. The Competition Act 1998). An alternative method of citation is by the calendar
year together with the Chapter number allotted to the Act on receiving the assent
or, in the case of an Act earlier than 1963, by its regnal year or years and Chapter
number. Regnal years are numbered from the date of a sovereign's accession to the
throne, and an Act is attributed to the year or years covering the session in which it
receives the royal assent. (See alsoENACTING WORDS.) An Act comes into force on the
date of royal assent unless it specifies a different date or provides for the date to be
fixed by ministerial order.
Acts of Parliament are classified by the Queen's Printer as public general Acts,
local Acts, and personal Acts. Public general Acts include all Acts (except those
confirming provisional orders) introduced into Parliament as public Bills. LocalActs
comprise all Acts introduced as private Bills and confined in operation to a
particular area, together with Acts confirming provisional orders. Personal Acts are
Acts introduced as private Bills and applying to private individuals or estates. Acts
are alternatively classified as public Acts or private Acts according to their status
in courts of law. A public Act is judicially noticed (i.e. accepted by the courts as a
matter of general knowledge). A private Act is not, and must be expressly pleaded
by the person relying on it. All Acts since 1850are public unless they specifically
provide otherwise. The printed version of an Act, rather than the version set out on
the HMSOwebsite, is the authentic text, although there are current proposals (2001)
to alter this rule under the Electronic Communications Act 2000.
act of state An act, often involving force, of the executive of a state, or
committed by an agent of a sovereign power with its prior approval or subsequent
ratification, that affects adversely a person who does not owe allegiance to that
power. The courts have power to decide whether or not particular conduct
constitutes such an act, but if it does, they have no jurisdiction to award any
remedy.
actual bodily harm Any hurt or injury calculated to interfere with the health or
comfort of the victim. *Assault causing actual bodily harm is a summary or
indictable offence carrying a maximum punishment of five years' imprisonment.
The hurt need not be serious or permanent in nature, but it must be more than
trifling. It is enough to show that pain or discomfort has been suffered, even
though no bruising is evident. Hysteria brought on as a result of assault is sufficient
for the offence to be proved.
actual military service See PRIVILEGED WILL.
actual notice Knowledge that a person has of rights adverse to his own. If a
purchaser of unregistered land has actual notice of an interest that is not required
to be registered as a land charge, and which will not be overreached on the sale to
him, he will be bound by it. The doctrine of notice plays no part in registered land,
where it has been replaced by the rules of registration. See also CONSTRUCTIVE NOTICE;
IMPUTED NOTICE.
actual total loss (in marine insurance) A loss of a ship or cargo in which the
subject matter is destroyed or damaged to such an extent that it can no longer be
used for its purpose, or when the insured is irretrievably deprived of it. If the ship
or cargo is the subject of a *valued policy, the measure of indemnity is the sum
fixed by the policy; if the policy is unvalued, the measure of indemnity is the
insurable value of the subject insured. Compare CONSTRUCTIVE TOTAL LOSS.
actus reus [Latin: a guilty act] The essential element of a crime that must be
proved to secure a conviction, as opposed to the mental state of the accused (see MENS
REA). In most cases the actus reus will simply be an act (e.g.appropriation of property
is the act of theft) accompanied by specified circumstances (e.g. that the property
belongs to another). Sometimes, however, it may be an *omission to act (e.g. failure
to prevent death may be the actus reus of manslaughter) or it may include a
specified consequence (death resulting within a year being the consequence required
for the actus reus of murder or manslaughter). In certain cases the actus reus may
simply be a state of affairs rather than an act (e.g. being unfit to drive through
drink or drugs when in charge of a motor vehicle on a road).
actus reus non tacit reum nisi mens sit rea [Latin: an act does not make a
person guilty of his crime unless his mind be also guilty] The maxim that forms the
basis for defining the two elements that must be proved before a person can be
convicted of a crime (see ACTUS REUS; MENS REA).
ad colligenda bona [Latin] To collect the goods. The court may grant *letters of
administration ad colligenda bonato any person to deal with specified property in an
estate when that property might be endangered by delay. For example, if part of the
estate consists of perishable goods the court may grant administration ad colligenda
bona to any suitable person to allow him to sell or otherwise deal with those goods
for the benefit of the estate. This is a limited grant only and ceases on the issue of a
full grant of representation to the persons entitled to deal with the whole estate. In
one case, such a grant was issued to the Official Solicitor on an application by the
Inland Revenue when the executors of the deceased's will delayed applying for
probate.
additional voluntary contribution (AVq An additional payment that may be
made by an employee to a pension scheme in order to increase the benefits available
from their pension fund on retirement. AVCs can be paid into an employer's scheme
or into a scheme of the employee's choice (a free-standing AVe); they can be made
free of tax within Inland Revenue limits (see PENSION).
address for service The address, which a party to court proceedings gives to the
court and/or the other party, to which all the formal documents relating to the
proceedings should be delivered. Notices delivered at that address (which may be, for
example, the address of his solicitors) are binding on the party concerned.
ademption n. The cancellation or reduction of a specific *legacy because the
subject matter of the gift is no longer part of the testator's estate at his death, or
the testator no longer has power to dispose of it, or there is nothing conforming to
the description of it in the will. For example, if the will bequeaths a particular
house that the testator sold during his lifetime, or if after making a will giving a
legacy to his child the testator gives the child property constituting a *portion, the
legacy is in each case adeemed. The gift of the house is cancelled and the child's
legacy is reduced by the amount of the portion (see also SATISFACTION). Ademption
need not occur by the testator's own deed; for example, an Act of Parliament that
nationalized a company in which the testator had shares would cause a legacy of
those shares to adeem.
ad idem [Latin: towards the same] Indicates that the parties to a transaction are in
agreement. See CONSENSUS AD IDEM.
ADIZ See AIR DEFENCE IDENTIFICATION ZONE.
adjective law The part of the law that deals with practice and procedure in the
courts. Compare SUBSTANTIVE LAW.
adjournment n. (in court procedure) The postponement or suspension of the
hearing of a case until a future date. The hearing may be adjourned to a fixed date
or sine die (without day), i.e. for an indefinite period. If an adjournment is granted at
the request of a party the court may attach conditions, e.g. relating to the payment
of any *costs thrown away.
adjudication n. 1. The formal judgment or decision of a court or tribunal. 2. A
decision by the Commissioners of Inland Revenue as to the amount (if any) of
*stamp duty payable on a written document.
adjudication order Formerly, a court order that made a debtor bankrupt. See
BANKRUPTCY ORDER.
adjustment n. 1. The determination of the amount due under a policy of
insurance. 2. The working out by an average adjuster of the rights and liabilities
arising in a case of general *average.
ad litem [Latin] For the suit. A grant ad litem is the appointment by a court of a
person to act on behalf of an estate in court proceedings, when the estate's proper
representatives are unable or unwilling to act. For example, the Official Solicitor
may be appointed administrator ad litem when a person wishes to claim under the
Inheritance (Provision for Family and Dependants) Act 1975(see FAMILY PROVISION) but
the personal representatives are not willing to act, or nobody is entitled to a grant,
or the only person entitled to a grant is the litigant himself. A guardian ad litem is
the former name for a *children's guardian.
administration n. 1. The collection of assets, payment of debts, and distribution
to the beneficiaries of property in the estate of a deceased person. See also GRANT OF
REPRESENTATION. 2. The granting of *letters of administration to the estate of a
deceased person to an *administrator, when there is no executor under the will.
3. The process of carrying out duties imposed by a trust in connection with the
property of a person of unsound mind or a bankrupt.
administration action Proceedings instituted in court by a personal
representative or any other person interested in the estate of a deceased person to
obtain a *grant of representation.
administration bond A guarantee by a third party, often an insurance company,
to make good any loss arising if a person to whom letters of administration have
been granted fails to deal properly with the estate. The court usually requires an
administration bond as a condition of granting letters of administration only when
the beneficiaries are considered to need special protection, e.g. when the
administrator lives abroad or where there has been a dispute as to who should
administer the estate.
administration of poison See POISON.
administration order 1. An order made in a county court for the administration
of the estate of a judgment debtor. The order normally requires the debtor to pay
his debts by instalments: so long as he does so, the creditors referred to in the order
cannot enforce their individual claims by other methods without the leave of the
court. Administration orders are issued when the debtor has multiple debts but it is
thought that his bankruptcy can be avoided.
2. An order made by the court under the Insolvency Act 1986, directing that, during
the period for which it is in force, the affairs, business, and property of a company
shall be managed by a person appointed by the court (known as the administrator).
In order for the court to grant such an order it must be satisfied that the company
cannot or is unlikely to be able to pay its debts when due and that the order is likely
to allow (1) the survival of the company, or (2) the approval of a *voluntary
arrangement, or (3) a more favourable realization of its assets than would be
possible under a *winding-up or through an arrangement with creditors.
The Insolvency Act does not specify a period for the duration of the order: it
remains in force until the administrator is discharged, by the court, having achieved
the purpose(s) for which the order was granted or having decided that the purpose
cannot be achieved.
While the order is in force the company may not be wound up; no steps may be
taken to enforce any security over the company's property or to repossess goods in
the company's possession, except with the leave of the court, and no other
proceedings or other legal processes may be initiated or continued, against the
company or its property, except with the court's leave.
administration pending suit Administration of a deceased person's estate by a
person appointed by the High Court (the administrator pending suit) when legal
proceedings are pending concerning the validity of the will or for obtaining,
recalling, or revoking any grant. An administrator pending suit has all the rights,
powers, and duties of a general administrator except that he may not distribute any
part of the estate without the leave of the court.
administrative letter See COMFORT LETTER.
administrative powers Discretionary powers of an executive nature that are
conferred by legislation on government ministers, public and local authorities, and
other bodies and persons for the purpose of giving detailed effect to broadly
defined policy. Examples include powers to acquire land compulsorily, to grant or
refuse licences or consents, and to determine the precise nature and extent of
services to be provided. Administrative powers are found in every sphere of public
administration, including town and country planning, the regulation of public
health and other environmental matters, the functioning of the welfare services,
and the control of many trades, professions, and other activities. Their exercise is
subject to judicial control by means of the doctrine of *ultra vires.
administrative receiver A *receiver who, under the terms of a debenture
secured by floating *charge, takes control of all (or substantially all) of a company's
assets. See also INSOLVENCY PRACTITIONER.
administrative tribunal A body established by or under Act of Parliament to
decide claims and disputes arising in connection with the administration of
legislative schemes, normally of a welfare or regulatory nature. Examples are
*employment tribunals and *rent assessment committees. They exist outside the
ordinary courts of law, but their decisions are subject to judicial control by means
of the doctrine of *ultra vires and in cases of *error of law on the face of the record.
Compare DOMESTIC TRIBUNAL. See also COUNCIL ON TRIBUNALS.
administrator n. 1. A person appointed by the court to collect and distribute a
deceased person's estate when the deceased died intestate, his will did not appoint an
executor, or the executor refuses to act. An administrator's authority to deal with
the estate does not begin until the court has granted *letters of administration. The
Administration of Estates Act 1925lays down the order in which people are entitled
to a grant of representation. Compare EXECUTOR. 2. See ADMINISTRATION ORDER.
Admiralty Court A court forming part of the *Queen's Bench Division of the
High Court whose jurisdiction embraces civil actions relating to ships and the sea.
*Puisne judges hear cases with the assistance of nautical assessors. The court's work
includes cases about collisions, damage to cargo, prizes (see PRIZE COURT), and salvage,
and in some cases *assessors may be called in to sit with the judge. The distinctive
feature of the court's procedure is the action *in rem, under which the property
that has given rise to the cause of action (usually a ship) may be "arrested" and held
by the court to satisfy the claimant's claim. In practice, it is usual for the owners of
the property to give security for its release while the action is proceeding. If the
claim is successful, the property held or the sum given by way of security is
available to satisfy the judgment. Until 1971 the Admiralty Court was part of the
*Probate, Divorce and Admiralty Division of the High Court. Since the Access to
Justice Act 1999, all Admiralty proceedings will be allocated to the *multi-track.
admissibility of evidence The principles determining whether or not particular
items of evidence may be received by the court. The central principle of
admissibility is *relevance. All irrelevant evidence is inadmissible, but evidence that
is legally relevant may also be inadmissible if it falls within the scope of one of the
*exclusionary rules of evidence. See also CONDITIONAL ADMISSIBILITY; MULTIPLE
ADMISSIBILITY.
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