Contract rests on the agreement of the parties: as it is their agreement that binds them, so by their agreement they may be discharged. This chapter begins by identifying two sources of difficulty, which render the topic of discharge by agreement one of considerable artificiality and refinement, and then discusses the forms of discharge by agreement, covering release, accord and satisfaction, rescission, variation, waiver, and discharge provisions contained in the contract itself.
Chapter
13. Discharge by Agreement
Jack Beatson, Andrew Burrows, and John Cartwright
Chapter
4. Due process
This chapter explains the overlapping ideas of natural justice, procedural fairness, and due process, and discusses the importance of comity between judges and administrative agencies. The elements of process are outlined: notice and disclosure, oral hearings, waiver, reconsideration, and appeals. Proportionality is presented as a general principle of the procedural duties of public authorities, and the chapter explains the three process values: procedural requirements can improve decisions, treat people with respect, and subject the administration to the rule of law. The chapter explains the irony of process: the law must sometimes require procedures that impose disproportionate burdens on administrative authorities, in order to protect due process. The chapter concludes with an explanation of discretion in process and of the potential dangers involved in administrative processes.
Chapter
5. Impartiality and independence
This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.
Chapter
13. The jury
A jury consists of twelve, randomly-selected members of the public, who decide guilt or innocence in the most serious criminal trials in the Crown Court. This chapter explains the rules on eligibility for, and disqualification or excusal from jury service. It considers the power of the jury to acquit in defiance of the evidence (‘jury equity’), the confidentiality of jury deliberations and the implications of that for appeals, the ethnic composition of a jury, whether juries should be excluded from certain trials such as those involving serious fraud or where there is evidence of jury ‘tampering’, whether the accused should be able to ‘waive’ their right to jury trial, and the impact of social media on jury trials. It concludes by examining the relative advantages and disadvantages of jury trials.
Chapter
7. Legal Nature of Powers
Sir William Wade and Christopher Forsyth
This chapter begins with a discussion of sources of power, including statutory powers and duties, the royal prerogative, corporate and contractual powers, and non-legal and abnormal powers. It then describes the conditions imposed on powers conferred on public authorities; the power to revoke or modify the decisions or orders of an administrative authority or tribunal; situations in which the court will hold administrative decisions to be irrevocable; the principle of estoppel; waiver and consent; and the role of res judicata in administrative law.
Chapter
13. The Judicial Review Procedure
Mark Elliott and Jason Varuhas
This chapter examines the judicial review procedure, with particular emphasis on two issues: first, what judicial review procedure which claimants seeking a prerogative remedy are required to use; second, the extent to which a claimant seeking to raise a public law matter may avoid having to use the judicial review procedure by issuing a claim for an injunction or declaration. After providing a background on the origins of today's judicial review procedure, the chapter discusses the nature of the judicial review procedure and the impact of human rights claims on judicial review procedure. It also considers when the judicial review procedure must be used, focusing on procedural exclusivity, waiver of exclusivity, defensive use of public law arguments, and the connection between private law rights and public law.
Chapter
13. The jury
A jury consists of twelve randomly-selected members of the public, who decide guilt or innocence in the most serious criminal trials in the Crown Court. This chapter explains the rules on eligibility for, and disqualification or excusal from jury service. It considers the power of the jury to acquit in defiance of the evidence (‘jury equity’), the confidentiality of jury deliberations and the implications of that for appeals, the ethnic composition of a jury, whether juries should be excluded from certain trials such as those involving serious fraud or where there is evidence of jury ‘tampering’, whether the accused should be able to waive their right to jury trial, and the impact of social media on jury trials. It concludes by examining the relative advantages and disadvantages of jury trials.
Chapter
10. Moral Rights
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter focuses on moral rights conferred by the Copyright, Designs and Patents Act 1988 on the authors of certain works to protect their non-pecuniary or non-economic interests. It begins by describing the nature of and rationales for grant of moral rights as well as a number of criticisms made about such rights. This is followed by a detailed consideration of the moral right of attribution or right of paternity, the right to object to false attribution, and the right of integrity. This discussion identifies when such rights arise (including the requirement of assertion of the attribution right), when the moral rights are infringed, and exceptions to such rights. The chapter also considers how far such rights can be waived.
Chapter
22. Privilege
This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Art 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.
