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Chapter

Cover Cross & Tapper on Evidence

XII. Hearsay in general  

This chapter takes a look at the hearsay rule. Though it is one of the most complex and confusing of the exclusionary rules of evidence, the hearsay rule can be used as the background and foundation to understand the new statutory provisions for civil and criminal proceedings. The chapter first discusses the hearsay rule at the common law level, explaining why such an exclusionary rule was thought necessary. It also indicates the tenor of this rule's development and reform. Next, the chapter more closely examines the scope of the rule, implied assertions, res gestae, the rule against narrative, and the extent to which admissions constitute an exception to the rule.

Chapter

Cover The Concept of Law

VII. Formalism and Rule-Scepticism  

H. L. A. Hart

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter first explains the open texture of law, which shows that there are, indeed, areas of conduct where much must be left to be developed by courts or officials, striking a balance between competing interests that vary in weight from case to case. It then discusses the varieties of rule-scepticism, finality and infallibility in judicial decision, and uncertainty in the rule of recognition.

Chapter

Cover Legal Skills

4. Using legislation  

This chapter discusses how to use legislation. It first looks at the ‘anatomy’ of an Act of Parliament and describes each of its composite parts. It then considers the various means by which the courts can interpret the wording of statutory provisions, including a discussion of the impact of the European Communities Act 1972 and the Human Rights Act 1998.

Chapter

Cover English Legal System

4. The interpretation of statutes  

This chapter explains the significance of statutory interpretation and how problems of interpretation arise. The chapter considers in detail the courts’ approach to interpretation, and traditional rules such as the literal rule, the golden rule, and the mischief rule are all analysed with examples from the case law. In modern times the courts employ a more purposive approach to interpretation, and there is coverage of how this approach works in practice. In particular, the chapter outlines a range of intrinsic and extrinsic aids to interpretation that the courts can rely on in interpreting an Act of Parliament. Among others, these aids include the long title, cross-headings, marginal or side notes, dictionaries, pre-parliamentary materials, statutes on the same subject matter, and, most notably, Hansard. The chapter concludes with an overview of the rules of language, namely ejusdem generis, noscitur a sociis, and expressio unius est exclusio alterius.

Chapter

Cover Public Law

4. The Rule of Law  

This chapter explains ‘the rule of law’. It first looks at the controversy over how to define the principle. Some experts argue that it should be ‘content-free’, dealing only with the form of law and the procedures by which law is made. Others favour a ‘content-rich’ meaning, so that the substance of laws should have to comply with fundamental rights. The chapter then examines the practical protection of the rule of law. In Britain, all three of the major branches of the state have functions in the development and application of rule of law principles. Judges use various approaches to protect the rule of law when adjudicating on cases. Parliament can enact legislation designed to safeguard the rule of law, though the principle of parliamentary supremacy means that legislation passed by Parliament that infringes the rule of law is not challengeable in the courts. Within government, various office-holders are responsible for ensuring respect for the rule of law.

Chapter

Cover The Law of Trusts

14. Fiduciary relationships  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the nature and scope of fiduciary relationships, the duties that govern them, and the remedies for breach. It begins by considering the fiduciary duty of loyalty and disentangling it from other duties of loyalty. Next, it considers the ‘no conflict’ principle; self dealing and fair dealing rules; the duty not to complete with one’s principal; the profit opportunity doctrine; the no-profit rule; and the proprietary and personal nature of the liability to account.

Chapter

Cover Family Law

1. Introduction  

Family law is more often than not associated in people's minds with negative times in their lives such as relationship breakdowns, childcare disputes, and financial problems relating to family life. However, from a legal perspective, family law is a fascinating area of law as no two cases are ever the same. There are so many issues that need to be considered: Who does family law protect? Who does family law fail to protect? What human rights affect family law? How far should rules extend into people's intimate relationships? This chapter asks all of these questions and presents the focus of the chapters to come.

Chapter

Cover The Concept of Law

V. Law as the Union of Primary and Secondary Rules  

H. L. A. Hart

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter begins by identifying two types of rules. The first, which may be considered the basic or primary type, requires human beings to do or abstain from certain actions, whether they wish to or not. The second type of rules are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. The chapter then argues that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. It attempts to show that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. This union of elements is accorded a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought.

Chapter

Cover Learning Legal Rules

1. Understanding the Law  

This chapter introduces some fundamentals that will underpin the understanding of law and ‘legal method’. It explains those core principles and techniques that underpin the process of legal reasoning. Topics discussed include the concept of law; functions of law, and the concept of regulation, which extends our understanding of law to include forms of delegated legislation and ‘soft’ law, and case law as it is developed by the courts. The chapter also discusses Parliament and legislation as a source of law; the structure and role of the courts; the importance of procedural law; the role of facts in legal decision-making; English law and the European Convention on Human Rights; and English law and the European Union.

Chapter

Cover Legal Skills

4. Using legislation  

This chapter discusses how to use legislation. It first looks at the ‘anatomy’ of an Act of Parliament and describes each of its composite parts. It then considers the various means by which the courts can interpret the wording of statutory provisions, including a discussion of the impact of the Human Rights Act 1998 and the European Communities Act 1972.

Chapter

Cover Administrative Law

9. Bias, Impartiality, and Independence  

Mark Elliott and Jason Varuhas

This chapter examines the notions of impartiality (and bias) and independence. It first provides an overview of the scope and rationale of the rule against bias before discussing the connection between impartiality and procedural fairness. It then reviews the ‘automatic disqualification rule’ by which a decision-maker can be disqualified if he/she has a sufficient financial interest in the outcome of the decision-making process. It also explores the apprehension of bias and the ‘fair-minded observer rule’, along with the political dimensions of the rule against bias. Finally, it considers Article 6 of the European Convention on Human Rights in an administrative context and when Article 6(1) applies to administrative decision-making. A number of relevant cases are cited throughout the chapter, including R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256.

Chapter

Cover The Modern Law of Evidence

15. Confessions  

This chapter discusses the admissibility of confessions under the Police and Criminal Evidence Act 1984 (the 1984 Act). It considers how, under s 76(2) of the 1984 Act, confessions may be excluded as a matter of law where obtained by oppression or in consequence of something said or done which was likely to render any such confession unreliable. It also considers the discretion to exclude confessions under s 78(1) of the 1984 Act; the effect of breaches of the Codes of Practice issued under the 1984 Act; the voir dire; statements made in the presence of the accused; and facts discovered in consequence of inadmissible confessions.

Chapter

Cover The Modern Law of Evidence

9. Corroboration and care warnings  

This chapter discusses exceptions to the general rule that there is no requirement for evidence to be corroborated. There are three categories of exception (i) where corroboration is required as a matter of law (speeding, perjury, treason, and attempts to commit these offences) and therefore a conviction cannot be based on uncorroborated evidence; (ii) where neither corroboration in a technical sense nor supportive evidence is required as a matter of law, but the tribunal of fact may need to be warned to exercise caution before acting on the evidence of certain types of witness, if unsupported; (iii) five cases in which corroboration is not required as a matter of law, and there is no obligation to warn the tribunal of fact of the danger of acting on the unsupported or uncorroborated evidence, but there is a special need for caution. The five cases are confessions by mentally handicapped persons, identification evidence, lip-reading evidence, cases of Sudden Infant Death Syndrome, and unconvincing hearsay. Identification evidence is dealt with separately in Chapter 10.

Chapter

Cover Public Law

3. The rule of law  

This chapter starts by defining the rule of law, explaining its importance, and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the writing of Dicey, whose seminal text, An Introduction to the Study of the Law of the Constitution (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern-day authorities.

Chapter

Cover Commercial Law

21. Contracts of carriage of goods by sea  

This chapter discusses contracts for the carriage of goods where the person requiring goods to be carried by sea (called the `shipper’) has booked space on a ship by entering into a contract of carriage with the carrier rather than chartering a whole vessel. The chapter deals initially with the common law approach to contracts of carriage by sea before showing how the Hague Visby Rules apply to the rights and duties of both shipper and carrier arising under such contracts.

Chapter

Cover A Practical Approach to Civil Procedure

20. Additional Claims under Part 20  

This chapter discusses the rules for additional claims under Part 20 of the Civil Procedure Rules 1998 (CPR). An additional claim typically will seek to pass any liability established against the defendant to a third party. This is achieved by seeking indemnities, contributions, or related remedies against the third party. A third party may in turn seek to pass on its liability to a fourth party, and so on. Permission to issue an additional claim is not required if the additional claim is issued before or at the same time as the defendant files its defence. An additional claim operates as a separate claim within the original claim.

Chapter

Cover A Practical Approach to Civil Procedure

27. Small Claims Track  

The Civil Procedure Rules 1998 (CPR) provide for the allocation of claims with a limited financial value to what is known as the small claims track. This is intended to provide a streamlined procedure with limited pre-trial preparation, with very restricted rules on the recovery of costs from the losing party, and without the strict rules of evidence. It is appropriate for the most straightforward types of cases, such as consumer disputes, accident claims where the injuries suffered are not very serious, disputes about the ownership of goods, and landlord and tenant cases other than claims for possession. This chapter discusses provisions of the CPR that do not apply; standard and special directions of the court; determination without a hearing; final hearings in small claims track cases; cost restrictions for claims allocated to the small claims track; and rehearings.

Chapter

Cover A Practical Approach to Civil Procedure

31. Disclosure  

The Civil Procedure Rules 1998 (CPR) require the parties to give advance notice to their opponents of all the material documentation in their control. This is done in two stages. At the first stage the parties send each other lists of documents, a process called ‘disclosure’. The second stage is ‘inspection’, which is the process by which the other side can request copies of documents appearing in the list of documents, typically with photocopies being provided by the disclosing party. This chapter discusses these processes. It covers lawyers’ and clients’ responsibilities; the stage when disclosure takes place; disclosure orders; standard disclosure; menu option disclosure; duty to search; list of documents; privilege; inspection; orders in support of disclosure; documents referred to in statements of case, etc.; admission of authenticity; and collateral use.

Chapter

Cover Public Law

4. The Rule of Law  

This chapter explains ‘the rule of law’. It first presents a definition of the rule of law followed by a discussion of the practical protection of the rule of law. In Britain, all three of the major branches of the state — the judiciary, Parliament, and government (especially through the office of Lord Chancellor) — have functions in the development and application of rule of law principles.

Chapter

Cover Essential Cases: Contract Law

Adams v Lindsell [1818] EWHC KB J59; (1818) 1 B & Ald 681; (1818) 106 ER 250  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Adams v Lindsell (1818) 106 ER 250. The document also includes supporting commentary from author Nicola Jackson.