This chapter addresses issues that must be confronted by litigants who propose to launch judicial review proceedings, and by courts dealing with such claims. First, it considers what sort of decisions can be judicially reviewed. Second, it examines the procedure under which courts subject decisions to judicial review. Third, it looks at the remedies that courts may issue in judicial review proceedings.
Chapter
14. Judicial Review—Scope, Procedures, and Remedies
Chapter
13. Infringement and loss of registration of trade marks
This chapter focuses on trade mark infringement, setting out the rights of a trade mark owner to prevent others from making use of any sign which is the same as or similar to the registered mark in the course of trade. A claimant who brings a trade mark infringement action will have to show two things: that an act of infringement has been committed, and that such conduct falls within the scope of protection afforded to the registered mark. Once these two points have been established, the court will normally find in favour of the claimant unless one or more of the counter-arguments raised by the defendant succeeds. A defendant who is sued for trade mark infringement, besides denying that infringement has been made out or raising one of the statutory defences, will usually try to counterclaim that the mark should be revoked or declared invalid.
Chapter
14. Judicial Review—Scope, Procedures, and Remedies
This chapter addresses issues that must be confronted by litigants who propose to launch judicial review proceedings, and by courts dealing with such claims. The reluctance of the courts to allow their supervisory jurisdiction to be ousted by legislation, their preparedness to hear claims from parties unaffected by the challenged decision when this is necessary for the maintenance of the rule of law, and their willingness to rule in advance on important legal questions all paint a picture in which judicial review plays a fundamental role in ensuring good governance. The chapter first, it considers what sort of decisions can be judicially reviewed. Second, it examines the procedure under which courts subject decisions to judicial review. Third, it looks at the remedies that courts may issue in judicial review proceedings.
Chapter
5. Consideration and Promissory Estoppel
This chapter evaluates the other requirement for an agreement to be legally enforceable: consideration. In its simplest form, consideration is often described as being something of value that is given (or promised) by each party in exchange for the other party’s promise or performance. Disputes concerning consideration usually begin by one party claiming that the other is in breach of their contract. The other party then argues that no consideration had been given in return for what they promised to do, and therefore the agreement is not enforceable. In a case concerning consideration, courts will typically focus on the obligations to be enforced, and then work out if something of value was given (or promised) in return for the performance of those obligations. Sometimes, a strict application of the consideration requirement is a barrier to reflecting the parties’ intentions. For that reason, the courts have developed a more relaxed approach in certain circumstances. There is also a limited exception to the requirement for consideration, which is known as promissory estoppel.
Chapter
7. Courts
Courts play an important role in environmental law. Among other things, they uphold the rule of law and adjudicate on the legal disputes that inevitably arise. This chapter explores the role of courts in environmental law. It outlines why courts are understood to be important in environmental law, what courts are, the different types of courts relevant to UK and EU environmental law, the importance of access to justice, and the actual and potential role of specialist environmental courts. Overall, what is apparent from this chapter is not only that the role of courts is an important one, but that it is also complex.
Chapter
16. The Variation of Trusts
This chapter considers issues concerning the process of changing the terms of a trust. It explains that a trustee cannot make any changes in the terms of a trust but the court can confer on the trustees a statutory power to vary the terms of the trust upon application of the trustee or a person beneficially entitled under the trust. This statutory power may not be used to alter any of the beneficial interests under the trust. This chapter also discusses the provisions of the Variation of Trusts Act 1958 which gives the court the power to approve by order any arrangement that revokes or varies a trust or enlarges the powers of the trustees to manage or administer the trust property.
Chapter
1. The English legal system
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. This chapter discusses the English legal system. It provides an overview of the courts in the civil and criminal divisions, and their hierarchy. It discusses the source of law, delegated legislation, the impact of membership in the EU and the Human Rights Act 1998, and alternative forms of dispute resolution (ADR). The implications of ADR are increasingly important in civil disputes and essential between businesses where traditional court action can destroy commercial relationships.
Chapter
16. The Variation of Trusts
This chapter considers issues concerning the process of changing the terms of a trust. It explains that a trustee cannot make any changes in the terms of a trust but the court can confer on the trustees a statutory power to vary the terms of the trust upon application of the trustee or a person beneficially entitled under the trust. This statutory power may not be used to alter any of the beneficial interests under the trust. This chapter also discusses the provisions of the Variation of Trusts Act 1958 which gives the court the power to approve by order any arrangement that revokes or varies a trust or enlarges the powers of the trustees to manage or administer the trust property.
Chapter
29. Variation of beneficial interests
This chapter considers the variation of beneficial interests. One route is for a trust to include provisions which allow the terms of the trust to be varied by the settlor, or by the trustees, or by a protector, in each case, with or without a requirement of consent by someone else. Variation by the beneficiaries is also explored, as is the surrender of a beneficial interest, the release of a power, the statutory powers of variation, and inherent court powers. The chapter next turns to consensual variation and variation under the inherent jurisdiction of the court. Miscellaneous statutory powers are also discussed. Finally, the chapter gives an overview of the Variation of Trusts Act 1958.
Chapter
4. Certainty and the Intention to Enter a Legal Relationship
This chapter investigates the basic law on the certainty and intention requirements in the creation of an agreement. To be legally enforceable as a contract, the agreement must be sufficiently certain and show an intention to enter a legal relationship. Agreements can be uncertain because they are vague, or because they are incomplete. This can indicate there was no intention to enter a legal relationship. The courts must not rewrite the agreement; they must simply interpret it. If an agreement is incomplete, the courts may decide that the missing terms are implied, and this is more likely if there has been performance. A gap in an incomplete agreement can be filled if the parties have provided a mechanism for doing so, or if the terms can be construed so as to do so. The chapter then differentiates between an agreement to negotiate (a lock-in agreement) and agreements not to negotiate with other parties (lock-out agreements). Agreements between businesses are presumed to be made with the intention to be legally binding, but the facts, the interpretation of the terms, or the surrounding circumstances could mean there was no such intention.
Chapter
7. The Judiciary
This chapter, which focuses on the judiciary, discusses the structure of the judicial system, the role of the judiciary, and the characteristics of the judiciary.
Chapter
4. Separation of Powers—An Introduction
This chapter explains the separation of powers doctrine, first describing the three branches of government: the legislative, judicial, and executive. It then discusses why separation of powers is needed, different conceptions of separation of powers, and separation of powers in the UK.
Chapter
13. The Grounds of Judicial Review
This chapter discusses the grounds upon which it is possible to challenge administrative decisions by way of judicial review, and shows that there are many and varied grounds on which courts may review decisions taken by public bodies. A notable theme in this area concerns the deepening, in recent years, of judicial scrutiny of the executive. New grounds of review—such as legitimate expectation and proportionality—have emerged, often involving a greater degree of judicial oversight of executive decisions than has traditionally existed.
Chapter
2. The administration of the law
This chapter examines the administration of the law under the English legal system. It aims to clarify how, and by whom, the law is administered. It identifies the structure, jurisdiction, and composition of the various courts, and also discusses how the tribunals system fits into the administration of the law. In addition, the chapter looks at less formal approaches to dispute resolution, such as alternative dispute resolution. This chapter describes the duties and responsibilities of the different members of the legal profession including the judiciary, the law officers, barristers, solicitors, legal executives, and paralegals. It also considers the appellate procedure.
Chapter
7. The terms of the contract
This chapter focuses on the actual content or terms of a contract. It discusses the two main classifications of contractual terms, namely express and implied terms, and considers the courts’ approach in the determining when terms should be implied into a contract. It explains that express terms are those specifically agreed upon by the parties while implied terms are those that may be implied by the court, statute, or custom. This chapter also explains how some implied terms can be excluded via an express provision and discusses the parol evidence rule, collateral contract, and entire agreement clause. The chapter concludes by looking at the principles established by the courts when interpreting contractual provisions.
Book
Mark Thomas and Claire McGourlay
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. English Legal Systems Concentrate starts with an introduction to the English legal system (ELS). It then looks at sources of law: domestic legislation, case law, and the effect of EU and international law. The text also examines the court structure. It then looks at personnel of the ELS. It moves on to consider the criminal justice system and the civil justice system. After that, it looks at funding access to the ELS. Finally, it looks to the future of the ELS.
Chapter
13. The Grounds of Judicial Review
This chapter discusses the grounds upon which it is possible to challenge administrative decisions by way of judicial review, and shows that there are many and varied grounds on which courts may review decisions taken by public bodies. Administrative law, for all of its technicality and detail, is part of our wider constitutional fabric, and represents the working out, in a particular legal context, of much broader debates about the proper relationship between the different branches of the constitution. A notable theme in this area concerns the deepening, in recent years, of judicial scrutiny of the executive. New grounds of review—such as legitimate expectation and proportionality—have emerged, often involving a greater degree of judicial oversight of executive decisions than has traditionally existed.
Chapter
4. Separation of Powers—An Introduction
This chapter explains the separation of powers doctrine, first describing the three branches of government: the legislative, judicial, and executive. One complicating factor is that these branches of the state are not confined solely to the UK level; they also exist both above and below the UK level. This is what we call the ‘multilayered constitution’. Above the UK level is the Council of Europe and below the UK level are the devolved governments and legislatures in Scotland, Wales, and Northern Ireland. The chapter further discusses why separation of powers is needed, different conceptions of separation of powers, and separation of powers in the UK.
Chapter
7. The Judiciary
This chapter focuses on the judiciary; the courts play a special role in constitutional terms and an independent judiciary is a prerequisite in any civilised society subject to the rule of law. The chapter first discusses the hierarchical structure of the judicial system in the UK before moving on to consider the role of the judiciary and issues that concern the courts’ place within, and responsibility for upholding the principles of, the constitution. Finally, the chapter examines the characteristics of the judiciary, such as the way that judges are appointed, the independence of the judiciary, and its diversity.
