This chapter explains the various commercial and legal justifications that gave rise to the creation of Limited Liability Partnerships (LLPs), and gives an overview of similar bodies in different jurisdictions. It explains the legislative scheme by which LLPs were introduced, and how the provisions of company law have been applied.
Chapter
10. LLPs: An Introduction
Chapter
19. Actions under the rule of Rylands v Fletcher
This chapter examines the rule from Rylands v Fletcher [1868]. The rule holds that where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier of that land is liable for the damage to another caused as a result of the escape, irrespective of fault. The rule today is best understood through a trilogy of cases: Rylands v Fletcher, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] and Transco v Stockport Metropolitan Borough Council [2004]. The development of the rule has led to an increased overlap with ideas from nuisance and negligence.
Chapter
14. Privity of Contract
M P Furmston
This chapter discusses the doctrine of privity of contract. It covers exceptions to doctrine, the Contracts (Rights of Third Parties) Act 1999; and attempts to impose liability upon nonparties to the contract.
Chapter
19. Actions under the rule of Rylands v Fletcher
This chapter examines the rule from Rylands v Fletcher [1868]. The rule holds that where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier of that land is liable for the damage to another caused as a result of the escape, irrespective of fault. The rule today is best understood through a trilogy of cases: Rylands v Fletcher, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] and Transco v Stockport Metropolitan Borough Council [2004]. The development of the rule has led to an increased overlap with ideas from nuisance and negligence.
Chapter
15. Constructive trusts and fiduciary duty
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The chapter looks at the nature of fiduciary duty and how someone becomes a fiduciary. The liability of fiduciaries for breach of trust is considered. Bribery and secret profits are explained, the meaning, nature, and approaches to constructive trusts are studied, and the various circumstances in which constructive trust might emerge are discussed. These include remedial and institutional constructive trusts. The liability of third parties (strangers) in constructive trusts as trustees de son tort, dishonest assisters, and those in knowing receipt are considered. The meanings of ‘knowledge’ and ‘dishonesty’ in this area of the law are explained, as is the level of liability of constructive trustees.
Chapter
13. Nuisance
Private nuisance is defined as any substantial and unreasonable interference with the claimant’s land, or with his rights to peaceful enjoyment of that land and any right that exists in connection with it. It need not result from ‘direct’ or ‘intentional’ interference; it is sufficient that the defendant have ‘adopted or continued’ a state of affairs that constitutes an unreasonable interference. This chapter discusses the basis of liability in private nuisance; the concept of unreasonable interference and the difference between this concept and the notion of ‘reasonableness’ in negligence; who can sue and who can be sued; defences; and remedies. It also discusses, in outline, public nuisance; the relationship between nuisance and other forms of liability; and nuisance and protection of the environment.
Chapter
16. The Rule in Rylands v. Fletcher
This chapter examines the rule in Rylands v. Fletcher, a rule which remains controversial to this day. The rule states that anyone who, in the course of a ‘non-natural’ use of his land ‘accumulates’ thereon for his own purposes anything likely to do mischief if it escapes, is answerable for all direct damage thereby caused. It discusses the requirements for liability, the various controlling mechanisms used to limit the scope of the rule; what and whose interests are protected by it; and the relationship between Rylands v. Fletcher and private nuisance. The chapter also explores the important questions that the rule in Rylands v. Fletcher raises about the nature, and future, of strict liability in the law of tort in general.
Chapter
34. Admissions and Documentary Evidence
This chapter discusses the rules relating to the proof of admissions and documents at trial. It covers the nature of admissions; pre-action admissions of liability; permission to withdraw an admission; notice to admit facts; and proving documents.
Chapter
11. The Corporate Structure
This chapter explains the statutory requirements with respect to the formation of an LLP and explains the process by which an LLP is incorporated. It explains how, as an incorporated body, an LLP acts through its members and other agents, and how their acts and their potential wrongdoing can be attributed in law to the LLP itself. It addresses the concept of limited liability that is consequent to an LLP's incorporation, and identifies the obligations that are imposed on an LLP arising from limited liability, in terms of registration and publicity.
Chapter
20. Vicarious liability
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 (or one akin to this) between the defendant and the person for whose actions they are being held liable; and (b) a close connection between this relationship and the tortious wrongdoing of the employee
Chapter
11. Occupiers’ liability
This chapter discusses occupiers’ liability, which deals with the risks posed, and harms caused, by dangerous places and buildings. In such cases, the occupier of the premises may be liable where a person who comes onto their land is injured in or by unsafe premises if the occupier has not taken reasonable care to ensure that those entering are safe. The general principles of negligence have been incorporated into, and modified by, statute in the form of the Occupiers’ Liability Acts 1957 and 1984. Although the Acts define the circumstances in which a duty of care will be owed (and tell us something as to its extent, as well as matters relating to its discharge and limitation), questions of breach and causation still need to be established by reference to the ordinary principles of negligence.
Chapter
13. Employers’ liability
This chapter discusses employers’ liability and, in particular, the non-delegable duty of care, which employers owe to their employees to ensure that they are reasonably safe when at work. The duty ensures that an employer remains responsible for key tasks even when their obligations have been delegated to another. The duty of care is typically said to have four components (building on Lord Wright’s statement in Wilsons & Clyde Coal Co Ltd [1938]) comprising the provision of: a competent workforce; adequate material and equipment; a safe system of working (including effective supervision); and a safe workplace.
Chapter
4. Special duty problems: psychiatric harm
This chapter discusses the ‘special duty issue’ that arises when a person has suffered psychiatric harm as a result of the defendant’s negligence. This issue has an interesting history, for it was thought at first that a claimant could only succeed if he or she was within the range of physical impact. In other words, only the ‘primary’ victim could sue. Liability was later extended to secondary victims; that is, where the claimant was not at risk of physical injury, but saw or heard the accident which caused the shock with his or her own unaided senses.
Chapter
4. Special duty problems: psychiatric harm
This chapter discusses the ‘special duty issue’ that arises when a person has suffered psychiatric harm as a result of the defendant’s negligence. This issue has an interesting history, for it was thought at first that a claimant could only succeed if he or she was within the range of physical impact. In other words, only the ‘primary’ victim could sue. Liability was later extended to secondary victims; that is, where the claimant was not at risk of physical injury, but saw or heard the accident which caused the shock with his or her own unaided senses.
Chapter
34. Admissions and Documentary Evidence
This chapter discusses the rules relating to the proof of admissions and documents at trial. It covers the nature of admissions; pre-action admissions of liability; permission to withdraw an admission; notice to admit facts; and proving documents.
Chapter
20. Vicarious liability
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.
Chapter
10. Advisory and Transactional Liability
Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare
The chapter first discusses the general principles governing a bank's liability. One way to approach the topic involves a consideration of the relevant doctrines whereby banks can incur liability. Section I selects just a few such doctrines. Another approach considers the various factual matters which feed into legal decisions about bank liability. The same factors recur across different legal doctrines: indeed, they arise for consideration in other systems of law. This is the focus of Section II. Section III considers advisory liability, which can arise in two ways: a failure to advise where the law imposes a duty to do so, and a failure to advise adequately when a bank assumes the task of advising a customer or third party. Section IV turns to the English law doctrines which have a particular application to transactions involving those the law regards as vulnerable. The final section deals with ‘lender liability’.
Chapter
11. Occupiers’ liability
This chapter discusses occupiers’ liability, which deals with the risks posed, and harms caused, by dangerous places and buildings. In such cases, the occupier of the premises may be liable where a person who comes onto their land is injured in or by unsafe premises if the occupier has not taken reasonable care to ensure that those entering are safe. The general principles of negligence have been incorporated into, and modified by, statute in the form of the Occupiers’ Liability Acts 1957 and 1984. Although the Acts define the circumstances in which a duty of care will be owed (and tell us something as to its extent, as well as matters relating to its discharge and limitation), questions of breach and causation still need to be established by reference to the ordinary principles of negligence.
Chapter
13. Employers’ liability
This chapter discusses employers’ liability and, in particular, the non-delegable duty of care, which employers owe to their employees to ensure that they are reasonably safe when at work. The duty ensures that an employer remains responsible for key tasks even when their obligations have been delegated to another. The duty of care is typically said to have four components (building on Lord Wright’s statement in Wilsons & Clyde Coal Co Ltd [1938]) comprising the provision of: a competent workforce; adequate material and equipment; a safe system of working (including effective supervision); and a safe workplace.
Chapter
34. Remedies against the trustee for breach of trust
This chapter examines the nature of liability for breach of trust. Trusts impose obligations on the trustees, and the trustees can be held liable for breach of trust if their failure to meet the obligations imposed upon them causes a loss. The liability of a trustee for a breach of trust is a personal liability, and any remedy is available only against the trustee as an individual, and not against any specific assets. If the trustee in breach has died, their personal liability continues against their estate. There may be separate remedies in relation to any assets retained by the trustee or in the hands of a third party, and different remedies are also available for breach of fiduciary duty.
