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 introduces the reader to the fault principle or negligence standard, along with its positive and negative implications. This chapter first asks. ‘What is negligence?’. It covers the standard of care and, within this, it looks at the objective standard. The chapter goes on to explore the way in which professional skill and care are assessed in the medical context. It also considers reasonable risk-taking and the absence of evidence of fault.
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David Ormerod and Karl Laird
Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.
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This chapter focuses on the second of the requirements necessary to establish a claim in the tort of negligence—breach of duty. Breach occurs where a defendant has fallen below the particular standard of care demanded by the law. This is largely an objective test and is determined by comparing the actions of the defendant to those imagined to be done in the same circumstances by the so-called ‘reasonable man’. The questions to be answered are how the defendant ought to have behaved (what was the required standard of care) and how the defendant did behave (did they in fact fall below that standard).
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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 Dunnage v Randall [2016] QB 639. 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 Dunnage v Randall [2016] QB 639. The document also included supporting commentary from author Craig Purshouse.
Book
Richard Glover
Murphy on Evidence is firmly established as a leading text for use on undergraduate law courses and in preparation for professional examinations. Frequently consulted by judges and practitioners, and regularly cited in judgments, it has come to be regarded as a work of authority throughout the common law world. The book’s unique approach effectively bridges the gap between academic study of the law of evidence and its application in practice, combining detailed analysis of the law with a wealth of practical information about how it is used in the courtroom. As in previous editions, the author’s teaching method is centred around two realistic case studies—one criminal and one civil—presenting challenging evidence issues and questions for discussion at the end of each chapter. The case study material for this new edition has been further developed with new videos on the Online Resource Centre. Fully up to date with the latest developments in this fast-moving subject, the fifteenth edition of Murphy on Evidence is as indispensable as its predecessors. Topics include: the language of the law of evidence; the judicial function in the law of evidence; the burden and standard of proof; character evidence; and the rule against hearsay.
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This introductory chapter begins by setting out the book’s three principal aims: to provide an exposition of the rules that make up the law of contract, to explore the law of contract in its transactional context, and to explore English contract law from a transnational and comparative perspective. The discussions then turn to the scope of the law of contracts; the growth in the use of standard form contracts and the increasing complexity of the form and the content of modern contracts; transnational contract law; and conflicting policies that underpin the law of contract.
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This chapter focuses on breach of duty. Breach occurs where a defendant has fallen below the particular standard of care demanded by the law. This is largely an objective test and is determined by comparing the actions of the defendant to those imagined to be done in the same circumstances by the so-called ‘reasonable man’. The questions to be answered are how the defendant ought to have behaved (what was the required standard of care) and how the defendant did behave (did they in fact fall below that standard).
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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 Dunnage v Randall [2016] QB 639. The document also included supporting commentary from author Craig Purshouse.
Book
Maureen Spencer and John Spencer
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. Concentrate Q&A Evidence offers expert advice on what to expect from your Evidence exam, how best to prepare and guidance on what examiners are really looking for. Written by experienced examiners, it provides clear commentary with each question and answer and bullet points and diagram answer plans plus tips to make your answer really stand out from the crowd and further reading suggestions at the end of every chapter. The book should help the reader identify typical law exam questions, structure a first-class answer, avoid common mistakes, show the examiner what the reader knows and find relevant further reading. After an introduction, the book covers burden and standard of proof, presumptions, competence and compellability, Special Measures Directions, character evidence, hearsay, confessions, the defendant’s silence, improperly obtained evidence, supporting evidence, identification expert opinion, issues in the course of trial, privilege, public policy and mixed questions. The final chapter gives guidance on assessed coursework. The book is suitable for undergraduate law students taking optional modules in Evidence.
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This chapter considers two discrete streams of authority – one based on the practice and jurisprudence of diplomatic protection, the other based on the generic standards in over 2,500 bilateral and multilateral investment treaties, as applied in some hundreds of tribunal decisions. The discussions cover the admission, expulsion, and liabilities of aliens; requirements for and standards of diplomatic protection; and breach and annulment of state contracts.
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8. Micro-prudential regulation I
Capital adequacy
Iris Chiu and Joanna Wilson
This chapter studies capital adequacy regulation, which prescribes that banks can only take certain levels of risk that are supported by adequate levels of capital. In this way, capital adequacy rules provide a form of assurance that banks with adequate levels of capital are likely able to withstand losses that may result from their risk-taking. The Basel Committee developed its first set of capital adequacy standards in the Basel I Capital Accord of 1988. It was subsequently overhauled into the Basel II Capital Accord in 2003. After the global financial crisis of 2007–9, the Basel II Accord’s shortcomings were extensively discussed and the Basel Committee introduced a package of reforms in order to plug the gaps in Basel II. The Basel III package is the most extensive suite of micro-prudential regulation reforms seen to date, as they deal with capital adequacy and a range of other micro-prudential standards.
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Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare
This chapter begins with a discussion of the reasons for bank regulation. Traditionally the focus of bank regulation has been the protection of individual institutions' stability from a depositors' run, and of depositors and deposit guarantee schemes from incurring losses in the event of bank failures. Another fundamental goal was the protection of taxpayers from a public bailout and from the kind of moral hazard that arises when public bank rescues are likely. However, in recent years, and especially since the global financial crisis the focus of bank regulation has broadened to include eliminating too-big-to-fail institutions; increasing capital cushions and introducing liquidity requirements; and enhancing the resilience of the financial system to withstand system-wide shocks. The remainder of the chapter covers prudential regulation, capital regulation, the different phases of the Basel capital framework, and the total loss absorbing capacity standard.
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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 elaborates on the issues regarding the administration of a trust and its relation to the trustees. Trustees are responsible for the administration of the trust and are subject to certain duties and have a number of powers relating to trust administration. To assist with the administration of the trust, trustees have the option, collectively and individually, to delegate certain functions to others. They are required to perform their administrative responsibilities diligently, and are subject to a duty to comply with the standard of skill and care expected of all trustees. Trustees have a duty to act in the interests of all the beneficiaries, maintaining a fair balance between them. They are also responsible for safeguarding the trust assets for the benefit of all beneficiaries, and, as such, have a duty to invest trust assets in the best interests of present and future beneficiaries.
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Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.
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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Part II of the Trustee Act 2000 gives every trustee the power to make any kind of investment as long as he is absolutely entitled to the assets of the trust, a power that permits trustees to hold investments jointly or in common with other persons. There are no unauthorised types of investment, but it is important to know whether the type of investment chosen was appropriate to the trust on the basis of the ‘standard investment criteria’. This chapter examines the types of investment permitted by the general law, a breach of the duty to invest with appropriate care, the significance of modern portfolio theory to trustee investments and the impact of the Trustee Act 2000 upon trustee investments. It also looks at the historical need for income production and discusses capital gains as investment returns, the standard investment criteria, the need for trustees to obtain and consider proper advice about investments, particular types of investment and investment policy.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter introduces the common law of passing off and the statutory regime that protects registered trade marks found in the Trade Marks Act 1994. It commences with a brief history of trade marks and the development of their legal protection. This is followed by a discussion of the ways in which legal protection of signs and symbols are justified. It then considers the international and regional background that informs and constrains the law on trade marks in the UK, with particular reference to registration and the harmonization of standards. The chapter concludes by looking at challenges posed to trade marks by electronic commerce and the use of trade marks as domain names, as well as recent developments in artificial intelligence which will impact this field.
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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. This chapter discusses negligence in terms of breach of duty. To answer questions on this topic, students need to understand the following: the concept of duty of care in negligence; the objective standard of care: the ‘reasonable person’ and factors relevant to the standard of care; variations of the objective standard: children, emergency situations, sporting events, and skilled persons ‘professing to have a special skill’; and res ipsa loquitur.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.
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This chapter examines how contract terms are identified and interpreted. It also considers the problems arising from standard form contracts. The increasing use of such contracts has put enormous pressure on traditional contract rules, which are premised on a different model of individual negotiation between notionally equal parties. The topics covered are: express terms, collateral terms, interpretation of terms, interpretation of exemption clauses, and implied terms.
