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Chapter

N V Lowe and G Douglas

This chapter deals with the legal responses to various forms of personal behaviour within the domestic sphere which may amount to physical or emotional abuse. It begins with discussions of the definition of domestic violence and abuse; the scale of domestic abuse; government strategy; and gender-based abuse as a breach of human rights. It then turns to the protection afforded by the criminal law; civil law remedies; and remedies through housing law. It concludes by considering whether the legal response to domestic violence should primarily be the use of the criminal law or through the civil law.

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This chapter discusses Article 102 TFEU, which applies to abusive conduct engaged in by undertakings in a dominant position. The dominant position must be held in a ‘substantial part’ of the internal market for EU competition law to apply. Abuses can take many forms, and include conduct designed to preserve or expand the power of the undertaking (‘exclusionary abuses’) and conduct aiming to exploit the power of the undertaking (‘exploitative abuses’). No exemptions are available, but the alleged abusive conduct may be defended on the grounds that it is ‘objectively justifiable’ or if there are efficiency justifications. A breach of Article 102 TFEU may incur penalties, damages, and a requirement of conduct modification.

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This chapter focuses on the most important pricing and non-pricing practices, which together constitute the larger part of the anti-competitive and exploitative abuses of dominant firms. The types of conduct considered abusive of market power are similar under most competition regimes, and include both pricing and non-pricing practices. The ‘form-based’ analysis of abusive practices is progressively shifting to an ‘effects-based approach’. In the EU and the UK, both exclusionary and exploitative abuses may fall foul of the relevant competition law provisions. Exclusionary practices are usually considered abusive when they are likely to lead to ‘anticompetitive foreclosure’. The EU and UK law and practice in relation to all these potential abuses is and will remain aligned until the UK has formally left the EU.

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In the past, domestic abuse and intimate partner violence were viewed as private matters, ones that rarely necessitated criminal or civil sanction. The law has changed quite considerably over time thanks to a growing recognition of the nature and consequences of domestic abuse. This chapter considers the effect and nature of domestic abuse and looks at how the law has sought to address it. The chapter starts by defining the term ‘domestic abuse’. Domestic abuse is very difficult for the law to deal with effectively for a couple of key reasons: the legal powers are piecemeal and overlapping and the police and prosecution responses have been lacking. Rates of domestic abuse remain high so there is still work to be done to protect people.

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This chapter deals with abuses committed in the trading of shares, with particular reference to insider dealing and market manipulation, and the laws intended to control them. The chapter considers forms of control to prevent market abuse under three key pieces of legislation: Regulation (EU) No 596/2014, the Criminal Justice Act 1993 and the Financial Services Act 2012. It looks at regulations governing disclosure to regulated markets and the fiduciary duty of directors, and offences involving insider dealing and creating a false market. The chapter analyses a particularly significant case: Percival v Wright [1902] 2 Ch 421.

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18. Company Law III  

Company Meetings, Shareholder Protection, and Liquidation of Companies

This chapter discusses the different types of company meetings and how meetings are convened and managed. It examines the different types of resolutions that may be made by shareholders both at meetings and outside meetings, and the rights of shareholders to propose their own resolutions. It explains the difference between voting by a show of hands and voting by poll. It considers the protection given by law to minority shareholders. It discusses the meaning of insider dealing and market abuse and the penalties they attract. The chapter concludes with a discussion of methods by which a company can be wound up and the meaning of wrongful and fraudulent trading.

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The ‘price’ that companies are required to pay for the privilege of incorporation (separate personality) and limited liability is compulsory publicity about their affairs. The Companies Acts’ disclosure rules are largely based on this philosophy. This chapter discusses general disclosure obligations; public regulation of securities markets; transparency obligations; disclosure and public offerings of shares; market abuse; and public investigation of companies.

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This chapter defines equity. Equity is both a different system of law which recognizes rights and obligations that the common law does not, and a system which seeks to address the inherent gaps which can exist in following any set of rules. Equity plays a large, but largely hidden, role in all our lives. For instance, buying houses with a partner, borrowing money, investing in private or company pensions, making complex arrangements in a will, or preventing human rights abuse all use some form of mechanism developed in equity, such as trust. Thus, equity, even if we do not always appreciate it, intrudes into many parts of our lives.

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This chapter considers the economics of monopoly abuse. A monopolist is a firm which is the sole supplier in a relevant market. Monopolists are able to determine the market price. This will be higher than the competitive price, with the quantity supplied being lower. This situation leads to a loss of welfare to society as a whole, and also a redistribution of income from some of the monopolist’s customers to the monopolist. The monopolist may also engage in wasteful strategic behaviour to protect its privileged position. In both the EU and UK regimes, competition enforcement is largely complaint driven. This forces the courts, and therefore economists as expert witnesses, to consider the (anti-)competitive impact of short-run activity that might be expected to have little in the way of long-run repercussions.

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Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Lister v Hesley Hall Ltd [2002] 1 AC 215. The document also included supporting commentary from author Craig Purshouse.

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Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Lister v Hesley Hall Ltd [2002] 1 AC 215. The document also included supporting commentary from author Craig Purshouse.

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This chapter examines the offence of fraud. It is a statutory offence that can be committed in one of three ways: by making a false representation; by failing to disclose information; and by abuse of position. Each has a different actus reus and mens rea, but for the most part liability turns on whether D was dishonest. The chapter also considers the related offences of obtaining services dishonestly, possession of articles for fraud, and making or supplying articles for use in frauds.

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This chapter considers the ingredients of successful action for malicious prosecution. The claimant must show: that the defendant prosecuted him; that the prosecution ended in the defendant’s favour; that there was no reasonable and probable cause for the prosecution; and that the defendant was actuated by ‘malice’. It covers not merely criminal prosecutions but certain forms of abuse of civil process, for example tort claims alleging deceit or malice. Damage also in all cases is a necessary ingredient. The tort, while ancient, is still being actively litigated, and the chapter analyses a number of recent cases in the higher appellate courts.

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This chapter examines the offence of fraud. It is a statutory offence that can be committed in one of three ways: by making a false representation; by failing to disclose information; and by abuse of position. Each has a different actus reus and mens rea, but for the most part liability turns on whether D was dishonest. The chapter also considers the related offences of obtaining services dishonestly, possession of articles for fraud, and making or supplying articles for use in frauds.

Chapter

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Lister v Hesley Hall Ltd [2002] 1 AC 215. The document also included supporting commentary from author Craig Purshouse.

Chapter

This chapter begins with a discussion of the law on fraud, covering fraud by false representation; fraud by failing to disclose information; fraud by abuse of position; fraud and possession offences; obtaining services dishonestly; conspiracy to defraud; and making off without payment. The second part of the chapter focuses on the theory of fraud, covering the extent and nature of fraud, and the Fraud Act 2006.

Chapter

27. Competition Law:  

Article 102

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on another principal provision concerned with competition policy: Article 102 TFEU. The essence of Article 102 is the control of market power, whether by a single firm or, subject to certain conditions, a number of firms. Monopoly power can lead to higher prices and lower output than would prevail under more normal competitive conditions, and this is the core rationale for legal regulation in this area. Article 102 does not, however, prohibit market power per se. It proscribes the abuse of market power. Firms are encouraged to compete, with the most efficient players being successful.

Chapter

David Gadd

This chapter outlines the key definitional and aetiological issues surrounding domestic violence perpetration. It begins with international estimates of the prevalence of domestic violence, many of which confine themselves to assessments of the percentage of women worldwide who have ever been physically or sexually assaulted by a partner. The second section of the chapter reviews the British historical literature to show how Victorian concern with the protection of respectable women from ‘wife-beaters’ yielded to a medical-psychiatric discourse that blamed hysterical women for provoking men with quick tempers. It then outlines how twentieth-century feminist accounts reframed the problem of ‘wife-beating’ variously in terms of ‘domestic violence’, ‘domestic abuse’, ‘intimate partner violence’, ‘coercive control’, and ‘gender-based violence’ in efforts that exposed the roles of sexism, inadequate legal protection, and gender inequality in perpetuating a ‘continuum’ of abuse against women under patriarchy. The third part of the chapter appraises the critique of gender-based perspectives provided by: psychological studies, some of which point to ‘gender symmetry’ in the perpetration of domestic violence and some of which reveal personality differences between perpetrators and non-violent men; and sociological studies that expose how the intersections between gender and ethnicity, sexuality and age manifest themselves, both in incidents of domestic violence and in official reactions to them. The chapter concludes by pointing to the challenge of finding a common voice capable of capturing the collective experiences of those in need of protection from domestic violence as well as the need to find ways of responding to perpetrators whose attitudes, motives, backgrounds are not necessarily identical to each other. These challenges are rendered more acute when the law is revealed as unpredictable in its capacity to determine the culpability of the small minority of men who perpetrate grievous assaults on their partners.

Chapter

Mark Elliott and Jason Varuhas

This chapter examines principles of administrative law which seek to prevent abuse of discretion. It first considers the notion that there is no such thing as an unfettered discretion before discussing two key principles that encourage a mode of administration which is faithful to the legislative scheme set out by Parliament: those which require decision-makers to act only on the basis of factors which are legally relevant, and those which dictate that statutory powers may be used only for the purposes for which they were created. It also explores the propriety of purpose doctrine and the relevancy doctrine, citing a number of relevant cases such as Padfield v. Minister of Agrictulture, Fisheries and Food [1968] AC 997.

Chapter

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373. The document also included supporting commentary from author Craig Purshouse.