Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. When property is held on trust, arising expressly or implied by law, any breach of the trustee/fiduciary obligation will lead to a remedy. This chapter explains the personal and proprietary remedies available to the claimant. A personal claim is one made against the trustee/fiduciary personally; it is not based upon the recipient having the property in their possession. A proprietary claim is based upon the defendant having the property or its replacement in their possession and being required to return it, or its substitute, to the claimant. The claimant, after identifying the breach, will often have the choice of which claim to make and there may be more than one possible remedy.
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Paul S Davies and Graham Virgo
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 its discussion on personal claims, where the claimant seeks a sum of money from the defendant but does not assert any right to any particular property. However, even where the defendant is solvent and could satisfy a personal claim, a proprietary claim might often be more desirable. If the property has risen in value, then that uplift in value will necessarily benefit the claimant if the claim is proprietary, but not if the claim is personal. A personal claim for the value of the property at the time of the third party’s wrong might be preferred where the property has fallen in value. Moreover, a personal claim will be the only possible type of claim available to the claimant if the property in question has been dissipated and no longer exists. In such circumstances, a proprietary claim is impossible and a personal claim alone can be pursued.
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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. When property is held on trust, arising expressly or implied by law, any breach of the trustee/fiduciary obligation will lead to a remedy. This chapter explains the personal and proprietary remedies available to the claimant. A personal claim is one made against the trustee/fiduciary personally; it is not based upon the recipient having the property in their possession. A proprietary claim is based upon the defendant having the property or its replacement in their possession and being required to return it, or its substitute, to the claimant. The claimant, after identifying the breach, will often have the choice of which claim to make and there may be more than one possible remedy.
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This chapter is intended to provide an introduction to the concepts that underpin the law as it relates to property other than estates and interests in land. The issues in the chapter are complex and there remain numerous troublesome areas where the law is far from clear. The chapter begins by considering some basic principles and outlining the way in which English law categorizes property before moving on to consider how ownership is best thought of as a bundle of rights over something that the law recognizes as something which can be owned. Two of the three types of proprietary claim to personal property are discussed here—ownership and possession—followed by a discussion of the nature of legal ownership, including co-ownership, along with the difference between legal and equitable ownership.
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Civil proceedings commence with the issuance of a claim form. Issuing a claim involves the court sealing the claim form with its official seal. This chapter discusses issuing and serving proceedings. It covers the claim form; jurisdictional endorsements; particulars of claim; specialist claims; issuing a claim form; service of the claim form; deemed date of service of the claim form; service of documents other than a claim form; deemed date of service (non-claim form documents); certificate of service; irregular service; and filing of documents at court.
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Civil proceedings commence with the issuance of a claim form. Issuing a claim involves the court sealing the claim form with its official seal. This chapter discusses issuing and serving proceedings. It covers the claim form; jurisdictional endorsements; particulars of claim; specialist claims; issuing a claim form; service of the claim form; deemed date of service of the claim form; service of documents other than a claim form; deemed date of service (non-claim form documents); certificate of service; irregular service; and filing of documents at court.
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The question of who pays for the costs of a claim is generally not determined until the claim is finally disposed of, whether by consent, interim process, or trial. However, an order for security for costs can be made against a party in the position of a claimant. Once security is given it may be retained, subject to the court’s discretion, pending an appeal. An order for security for costs usually requires the claimant to pay money into court as security for the payment of any costs order that may eventually be made in favour of the defendant, and staying the claim until the security is provided. On the application three issues arise: (a) whether one of the conditions for ordering security for costs is satisfied; (b) if so, whether, having regard to all the circumstances of the case, it would be just to exercise the court’s discretion in favour of making the order; and (c) if so, how much security should be provided. This chapter considers each of these three issues. It begins by looking at the procedure for making the application and the capacity of the respondent to the application.
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The question of who pays for the costs of a claim is generally not determined until the claim is finally disposed of, whether by consent, interim process, or trial. However, an order for security for costs can be made against a party in the position of a claimant. Once security is given it may be retained, subject to the court’s discretion, pending an appeal. An order for security for costs usually requires the claimant to pay money into court as security for the payment of any costs order that may eventually be made in favour of the defendant, and staying the claim until the security is provided. On the application three issues arise: (i) whether one of the conditions for ordering security for costs is satisfied; (ii) if so, whether, having regard to all the circumstances of the case, it would be just to exercise the court’s discretion in favour of making the order; and (iii) if so, how much security should be provided. This chapter considers each of these three issues. It begins by looking at the procedure for making the application and the capacity of the respondent to the application.
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Collecting and analysing evidence is often one of the most expensive elements of litigation. The approach to dealing with disclosure of evidence has been modified as part of the reforms introduced following the review carried out by Lord Justice Sir Rupert Jackson. The norm of standard disclosure has been replaced by options for the level of disclosure designed to ensure that disclosure is proportionate, which presents opportunities for saving costs and opens up some tactical considerations as regards the level of disclosure to seek and to offer. This chapter focuses on general principles and approaches that are most likely to be effective in preparing a case. It discusses the key rules of admissibility; questions of weight and reliability on the evidence presented; identifying what needs to be proved in a case; types of evidence; collecting evidence; disclosure of evidence; electronic disclosure of evidence; and reviewing and advising on evidence.
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This chapter examines the principle of vicarious liability, a form of secondary liability through which employers may, in certain circumstances, be liable for the torts of their employees, even though the employer themselves may be entirely blameless. The imposition of vicarious liability is one of the most important exceptions to the general approach of the common law whereby liability for any wrongdoing is imposed on, and only on, the wrongdoer(s). A defendant will not be vicariously liable unless the following conditions are met: (a) there is an employer–employee relationship between the defendant and the person for whose actions they are being held liable; (b) the employee committed the tortious act while acting in the course of their employment.
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Qualified one-way costs shifting (QOCS) provides costs protection to claimants in personal injuries claims. If the claimant wins, the defendant should be ordered to pay the claimant’s costs in the usual way. However, if the claimant loses, under QOCS, while the claimant remains liable to pay its own lawyers’ costs, and may be ordered to pay the successful defendant’s costs, the claimant will be protected against actually having to pay those costs to the defendant. This chapter discusses cases where QOCS applies; the effects of QOCS; and loss of QOCS protection.
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Part 36 of the Civil Procedure Rules 1998 (CPR) provides a means for a party to make a formal offer in settlement of the claim which will be treated as without prejudice for the purposes of liability and remedies, but which can be disclosed to the court on the question of costs. This chapter discusses offers to settle before the commencement of proceedings; making a Part 36 offer; acceptance of a Part 36 offer; rejections, counter-offers, and subsequent offers; withdrawal and amendment of Part 36 offers; failing to obtain judgment more advantageous than a Part 36 offer; advising on Part 36 offers; non-disclosure to judge; and Part 36 offers in appeals.
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Part 36 of the Civil Procedure Rules 1998 (CPR) provides a means for a party to make a formal offer in settlement of the claim which will be treated as without prejudice for the purposes of liability and remedies, but which can be disclosed to the court on the question of costs. This chapter discusses offers to settle before the commencement of proceedings; making a Part 36 offer; acceptance of a Part 36 offer; rejections, counter-offers, and subsequent offers; withdrawal and amendment of Part 36 offers; failing to obtain judgment more advantageous than a Part 36 offer; advising on Part 36 offers; non-disclosure to judge; and Part 36 offers in appeals.
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This chapter begins with a discussion of court selection. The issue of proceedings, and to some extent the choice of court, is increasingly being streamlined, with the procedure for County Court money claims and bulk claims being moved online. For the larger multi-track cases, however, the High Court and the County Court have concurrent jurisdiction for many types of proceedings. The chapter then explains the issuance of the claim form, which marks the start of formal litigation; the service of proceedings, i.e. the formal process by which the defendant is notified of the claim; the claimant's selection of the court in which the claim is brought; and the court's allocation of the case to a particular ‘track’. The final section deals with the directions questionnaire (form N180), which should not be seen as a formality but as a key step in defining how the case should move forward.
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Qualified one-way costs shifting (QOCS) provides costs protection to claimants in personal injuries claims. If the claimant wins, the defendant should be ordered to pay the claimant’s costs in the usual way. However, if the claimant loses, under QOCS, while the claimant remains liable to pay its own lawyers’ costs, and may be ordered to pay the successful defendant’s costs, the claimant will be protected against actually having to pay those costs to the defendant. This chapter discusses cases where QOCS applies; the effects of QOCS; and loss of QOCS protection.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Montagu’s Settlement Trusts [1987] Ch 264, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Montagu’s Settlement Trusts [1987] Ch 264, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.
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This chapter focuses on the rights of those wishing to take action against an infringement of competition law, potentially with a view to being compensated for the harm they may have suffered. One option is going to the relevant competition authority and filing a complaint to trigger the public enforcement route, saving the cost of litigation. The other option is to seek competition law enforcement in private claims before the courts. Claimants may seek damages or other remedies, including injunctions. In the UK, damages may be sought before the Competition Appeals Tribunal (CAT) and before the national courts. Collective claims can only be brought before the CAT. The number of private actions is increasing, and efforts have been made both by the EU and UK legislators to encourage more private litigation.
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Christopher Staker
This chapter focuses on the principles of international law that govern the right of States to apply their laws to conduct and events occurring within or outside their own territories; the resolution of disputes arising from overlapping jurisdictional claims; and the problems of enforcing national laws. The discussions cover the meaning of ‘jurisdiction’; the significance of the principles of jurisdiction; doctrinal analysis of jurisdiction; the territorial principle; the national principle; the protective principle; the universal principle; treaty-based extensions of jurisdiction; controversial bases of prescriptive jurisdiction; types of jurisdiction; limitations upon jurisdiction; inadequacies of the traditional approach; and the fundamental principle governing enforcement jurisdiction.
