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Cabinet
common law |
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The Cabinet is where
political power resides. A 15-25 member Cabinet is appointed by the Monarch
on the prime minister's recommendation, from the membership of the House of
Commons, the House of Lords, or even from outside Parliament. The number
varies according to the prime-ministerial style. |
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These persons serve
as chief executive officer of the largest and most important government
departments. This select group also meets collectively to plan government
policy and programs and, together, ensure that all government departments
support the government's legislative and political agenda. |
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Cabinet's policy
directions are translated into laws that are then brought before Parliament
for approval. In this manner, the political will of the government is
implemented. Ministers are responsible to Parliament for the proper
functioning of their departments and would be expected to resign if their
department failed or erred in an important duty or matter of state. |
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There are more
departments than there are vacancies in the Cabinet. Consequently, not all
department heads appointed from the ranks of Parliament, are members of the
Cabinet. |
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Canon law |
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The law of the
Christian Church. Has little or no legal effect today. Canon law refers to
that body of law which has been set by the Christian Church and which, in
virtually all places, is not binding upon citizens and has virtually no
recognition in the judicial system. |
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Some citizens resort to canon law, however, for procedures such as
marriage annulments to allow for a Christian church marriage where one of
the parties has been previously divorced. Many churchgoers and church
officers abide by rulings and doctrines of canon law. Also known as "ecclesiastical
law." |
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CAFCASS |
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CAFCASS looks after the
interests of children involved in family proceedings. It works with children
and their families, and then advises the courts on what it considers to be
in the children's best interests. CAFCASS only works in the family courts. |
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Call |
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An expression used to denote the experience of a
barrister. One who was called to the bar in 1998 would be said to have
6 years call in 2004 |
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Capital punishment |
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The most severe of all
sentences: that of death, which in the UK was by hanging. Also
known as the
death penalty, capital punishment has been banned in many countries
including the UK,
in the UK the death penalty was permanently removed for all offences by the
Human Rights Act 1998. |
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In the United States, an earlier
move to eliminate capital punishment has now been reversed and more and more
states are resorting to capital punishment for serious offences such as
murder |
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Case law |
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The entire collection of published legal decisions
of the courts, which, because of
stare decisis,
contributes a large part of the legal rules that apply in modern society. |
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If a rule of law cannot be found in written laws,
lawyers will often say that it is a rule to be found in "case law." In other
words, the rule is not in the
statutes but can be found as a principle of law established by a
judge in some recorded case. The word
jurisprudence has become synonymous for case law. |
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Causation |
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The rule particularly in criminal law that the
defendant has to have caused the result or consequence. The causation can be
either in law or in fact. So, death is the result or consequence of murder
and has to be strictly proved by the prosecution. Often the 'but for test'
is applied, 'but for what the defendant did would the result have
occurred?'. |
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Causa sine qua non |
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[Latin:
without which not]. |
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Literally translated = cause without which -
the event - could not have occurred.
Similar to the "but for test" that is found
in articles on causation in criminal law. "But for" the action of D
would the consequences have occurred? If the answer is "No" then there
is no factual causation. |
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See
Sine qua non, |
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Caveat |
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[Latin: let him beware]. A formal warning.
Caveat emptor means let the buyer beware or that the buyers should
examine and check for themselves things that they intend to purchase and
that they cannot later hold the vendor responsible for the broken condition
of the thing bought. Consumer legislation has radically reduced the
impact of caveat emptor in consumer sales. |
CEDR |
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The Centre
for Effective Dispute Resolution is the leader in the development of
neutral-assisted dispute resolution. |
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It is a non-profit organisation and its mission is to
encourage and develop cost effective dispute prevention and dispute
resolution in commercial and public sector disputes and in civil litigation.
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CEDR operates in the UK and internationally and has
been instrumental in helping to bring mediation into the heart of business
practice and into the judicial system. CEDR Mediator Accreditation is
recognised as an international standard. |
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www.cedr.com |
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Certiorari |
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[Latin: to inform] Now called a 'quashing order'.
A writ of certiorari is a form of judicial review whereby a court is
asked to consider a legal decision of an
administrative tribunal,
judicial office or organisation (e.g. government) and to decide if the
decision has been regular and complete or if there has been an error of law. |
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For example, a certiorari
may be used to quash a decision of an administrative tribunal that was made
in violation of the rules of natural justice, such as a failure to give the
person affected by the decision an opportunity to be heard. |
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A prerogative order
since 1938, and since 1977 only available by way of Judicial Review |
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Cestui que
trust
or cestui que use |
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[Latin: for the
beneficiary or
donee of a
trust]. |
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Ceteris paribus |
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[Latin all things being equal or unchanged.] |
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Champerty |
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When a person agrees to finance someone else's
lawsuit in exchange for a portion of the judicial award. |
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Charterparty |
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[carta partita, a deed cut in two] A written
agreement by which a ship owner lets an entire ship, or part of it, to the
charterer. The charterer agrees to convey goods to a particular place. |
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Principally, the
agreement stipulates places of loading and delivery and how the freight is
to be paid for. In addition, it includes details of lay days, and demurrage.
The test is: has the owner parted with the whole possession and control of
the ship? |
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Chaste |
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A person who has never voluntarily had
sexual intercourse outside of marriage such as unmarried virgins. |
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Chattel |
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A chattel is any property except
freehold land. Moveable items of property that are neither land nor
permanently attached to land or a building, either directly or vicariously
through attachment to real property. |
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A piano is chattel but a flat, a tree
or a concrete building foundation are not. The opposite of chattel is
real property,
which includes lands or buildings. All property, which is not real property,
is said to be chattel. |
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"Personal property" or "personalty"
are other words sometimes used to describe the concept of chattel. The word
"chattel" came from the feudal era when "cattle" was the most valuable
property besides land |
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Chattel mortgage |
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When an interest is given on moveable property
other than
real property (in which case it is usually a "mortgage"),
in writing, to guarantee the payment of a debt or the execution of some
action. It automatically becomes void when the debt is paid or the action is
executed. |
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Chattels
personal |
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These are tangible goods (goods that can be
touched) such as furniture, clothes, watches and so on. |
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Chattels
real |
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This is another name for leasehold land. |
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Cheque |
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A form of
bill of exchange where the order to pay is given to a bank which is
holding the
payor's money. |
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Chose in action (pronounced "shows in action") |
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Rights of property in
intangible things or which are not in one's possession, enforceable through
legal or court action. |
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Examples may include
salaries, debts, insurance claims, shares in companies and pensions. |
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An intangible asset
such as a claim to money as where A owes money to B. In such a case, the
debt is a chose in action. Other forms of property are also included such as
copyright in a book and a potential claim on an insurance policy. In
essence, a chose in action is a piece of property, which the owner has the
right to recover by court action if it is withheld. |
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The financial entitlement is often
represented by a cheque. In an A.P. Herbert story the fictitious character
Albert Haddock wrote a cheque to the Inland Revenue on the side of a cow,
and led the cow to the tax offices. Missing the joke, an American paper The
Memphis Press-Scimitar published the case of "the negotiable cow" as true,
since when the myth of this being a real case has often been repeated. |
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Circumstantial evidence |
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Evidence that may allow a judge or
jury to deduce a certain fact from other facts that have been proven. In
some cases, there can be some evidence that cannot be proven directly as
with an eyewitness, yet,
that evidence may be essential to prove a case. |
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In these cases, the lawyer will provide the judge or jury
with evidence of the circumstances from which a jury or judge can logically
deduct, or reasonably infer, the fact that cannot be proven directly; it is
proven by the evidence of the circumstances; hence, "circumstantial"
evidence. |
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Fingerprints are an example of circumstantial evidence: while
there may be no witness to a person's presence in a certain place, or
contact with a certain object, the scientific evidence of someone's
fingerprints is persuasive proof of a person's presence or contact with an
object. |
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Citation |
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1. The calling on a person who is not a party to
an action or proceedings to appear before the court.
2. The quoting of decided cases during legal
argument, as authorities.
3. In the USA an order of a court to either
do a certain thing or to appear before it to answer charges. The citation
(in UK a summons) is typically used for lesser offences (such as traffic
offences) because it relies on the good faith of the defendant to appear as
requested, as opposed to an arrest or
bail. |
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Civil law |
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Law inspired by old Roman Law, the primary feature
of which was that laws were written into a collection; codified, and not
determined, as is
common law, by judges. The principle of civil law is to provide all
citizens with an accessible and written collection of the laws, which apply
to them and which judges, must follow |
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Civil restraint order |
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Formerly a Grepe v Loam
order, used to prevent further actions by a 'vexatious litigant. |
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A civil restraint
order may be made at any level of court and by any level of judge. In its
simple form it is only apt to prohibit the issue of further applications
within a single set of proceedings without the permission of a judge. |
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A civil restraint
order is likely to be appropriate when the litigant’s conduct has the
hallmark of one who is content to indulge in a course of conduct which
evidences an obsessive resort to litigation and a disregard of the need to
have reasonable grounds for making an application to the court. |
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Normally, a civil restraint order
would not be made until after
the litigant has made a number of applications in a single set of
proceedings all of which have been dismissed because they were totally
devoid of merit. |
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Created in the
judgment of
Bhamjee v Forsdick [2003]. |
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Clandestine |
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Something that is purposely kept from the view or
knowledge of others either in violation of the law or to conduct or conceal
some illegal purpose. A "clandestine marriage" would be one that does not
comply with laws related to publicity. |
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Class action |
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When different
persons combine their lawsuits because the facts and the defendant are so
similar. This is designed to save Court time and to allow one judge to hear
all the cases at the same time and to make one decision binding on all
parties. |
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Class action lawsuits
would typically occur after a plane or train accident where all the victims
would sue the transport company together in a class action suit.
Recent class actions have occurred against tobacco companies |
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Clayton's
Case |
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The case, which established a presumption
that monies withdrawn from a money account are presumed to be debits from
those monies first, deposited. First in, first out. The proper citation is
Devaynes v Noble (1816) and the presumption is not applicable to
fiduciaries, who are presumed to withdraw their
own money first, and not
trust money |
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Clean hands |
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A maxim of equity to the effect that any person,
individual or corporate, that wishes to ask or petition a court for judicial
action, must be in a position free of fraud or other unfair conduct.
"He who comes to equity must come with clean hands". |
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Client-solicitor privilege |
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A right that belongs
to the client of a lawyer that the latter keep any information or words
spoken to him during the provision of the legal services to that client,
strictly confidential. |
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This includes being
shielded from testimony before a court of law. The client may, expressly or
impliedly, waive the privilege and, exceptionally, it may also be waived by
the lawyer if the disclosure of the information may prevent a serious crime. |
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Codecision procedure
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Since the Amsterdam Treaty came into force, the
simplified codecision procedure under art 251 (ex art 189b) of the EC Treaty
has applied to 39 legal bases in the EC Treaty that allow for the adoption
of legislative acts. It may therefore be
considered a standard legislative procedure. |
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It puts Parliament, in
principle, on an equal footing with the Council. If they agree the act is
adopted at first reading; if they do not agree the proposal undergoes a
second reading; if the second reading is unsuccessful the act can only be
adopted after successful conciliation; see also Consultation Procedure;
Cooperation Procedure and Conciliation Committee. |
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Codicil |
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An amendment to an existing
will. Does not mean that the will is totally changed; just to the extent
of the codicil. The codicil must be signed by the testator and
the signature must be witnessed by two people who do not benefit under the
will. |
Codification |
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In
most countries whole areas of law are contained in a single code rather
than, as in
England
and Wales,
being divided between the common law, which is derived from decisions of
judges over the centuries, and statute law enacted by Parliament.
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Coke, Sir Edward |
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Sir Edward
Coke was born February 1, 1551, called to the Bar by the Inner Temple
in 1578, became Recorder of London, 1591-92, Solicitor-
General, 1592, member and speaker the House of Commons, 1593,
Attorney-General, 1594, was knighted on the accession of James
I, made Chief Justice of the Common Pleas, 1606, of the King’s Bench, 1613,
from which he was removed in 1616 and committed to the Tower in consequence
of resistance to the king and the Court of Chancery; he was again returned
Parliament in 1621, and died on September 3, 1633.
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Coke, as a champion of the common law was bitterly hostile to the courts of
equity, and the controversy between Coke and Lord Ellesmere, the Chancellor,
was acute. He stood up to James I on the question of interfering with the
judges, and also protested against capital punishment - ‘the cursed gallows
tree’ - frequently in use in his day for the most trivial of offences.
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His principal works
are the Institutes of the Laws of England; commentary on many Acts of
Parliament; and an account of various courts; thirteen volumes of law
reports; and a volume of law tracts |
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Although he was a
famous text-writer and reporter among English lawyers, one of his
characteristics was said by Sir James Stephen to be an ‘utter incapacity for
anything like correct language or consecutive thought.’ Lord Campbell,
however, wrote in the nineteenth century that his works ‘may be studied with
advantage, not only by lawyers, but by all who wish to be well acquainted
with the…manners and customs prevailing in England in times gone by’. |
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Collateral |
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[by the side of] As in collateral insurance,
agreement, which is independent of, but subordinate to, the main agreement,
but affecting the same subject matter. Property that has been
committed to guarantee a loan. Sometimes collateral contracts. |
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Collateral descendant |
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A
descendant that is not direct, such as a niece or a cousin. |
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Collateral source rule |
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A rule of
tort law which holds that the
tortfeasor is not allowed to deduct from the amount he or she would be
held to pay to the victim of the tort, any goods, services or money received
by that victim from other "collateral" sources as a result of the tort
(e.g.. insurance benefits |
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Collusion |
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A secret agreement between two or more persons,
who seem to have conflicting interests, to abuse the law or the legal
system, deceive a court or to defraud a third party. For example, if the
partners in a marriage agree to lie about the duration of their separation
in order to secure a divorce. |
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Comfort letter
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Letter from an EU official stating that the European
Commission intends to close the file on a case involving a possible breach
of the competition rules. |
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Commission |
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A formal group of experts brought together on a
regular or
ad hoc basis to debate matters within that sphere of expertise, and with
regulatory or
quasi judicial powers such as the ability to license activity in the
sphere of activity or to
sub poena
witnesses. |
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Commissions usually
also have advisory powers to government, for example the Law Commission. The
organisational form of a commission is often resorted to by governments to
investigate exhaustively a matter of national concern, and is often known as
a "commission of inquiry." |
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This legal structure can be contrasted with a
council, the latter not enjoying quasi-judicial or regulatory powers |
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Committal hearing |
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A procedure in the magistrates’ court where, in either
way cases, the defendant is committed to stand his or her trial in the Crown
Court, provided the court is satisfied on the evidence that the defendant
has a case to answer. |
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Committee |
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A term of
parliamentary law that refers to a body of one or more persons appointed by
a larger assembly or society, to consider, investigate and/or take action on
certain specific matters.
A committee only has
those powers that have been assigned to it by the constituent assembly. |
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Most are merely created to study matters in detail and
to then report to the larger group. This saves the larger assembly time when
it meets and allows it to review and approve a greater number of items,
relying on the committee's report and recommendations. Committees are either
standing or
ad hoc
(this latter kind is also known as a "special committee). |
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The committee stage
of a bill through parliament. |
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Common law |
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Judge-made law or
'case law'. Has its origins in the reign of Henry II. |
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A body of legal rules
and principles contained in the decisions of the judges, particularly judges
in the higher courts in the hierarchy. |
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Judges develop
rules and principles in cases coming before them, therefore these are
practical in nature and not hypothetical rulings. |
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Common Law can be identified by legal precedents some dating back hundreds of years.
For example, murder is an offence created by common law. Judges apply rules and principles
found in precedents, or they create a precedent to apply to a
difficult or novel problem in cases before them. |
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Common law is so called because of the
gradual change, during the Middle Ages, from separate systems of local
customary law in various regions to a uniform legal code common the entire
country. What developed were powerful central courts spreading their
tentacles to all the regions. |
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Common law is to be contrasted
with Parliamentary law which is produced by politicians and civil servants
through Parliament and by delegated powers. |
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Where Parliamentary law and common law conflict
Parliamentary law prevails. |
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Common law is to be contrasted
with
civil law
or Roman Law which are typified by written codes. |
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Common law is to be contrasted
with
Equity
which developed to soften the rigid judgments of medieval common law judges. |
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The rise of Equity was spurred by the
need to obtain a writ (claim form) 500 years ago which was accompanied by
bureaucratic complications and cases were lost because of minor technical
defects. |
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Furthermore, the only remedy at common
law was damages (money compensation) and there was no remedy for breach of
contract. |
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A further development of Equity was to
allow the transfer of property through trusts. |
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For several hundred
years, there were separate courts for common law and for equity. |
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Where Equity and Law
conflict Equity prevails. |
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Common Law offences include murder and kidnapping. |
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Common share |
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The basic
share in a
company. Typically, common shares have voting rights and a
prorata right to any
dividends declared. They differ from
preferred shares, which, by definition, carry some kind of right or
privilege above the common shares (e.g. first to receive any
dividends). |
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Company |
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A legal entity, allowed by
legislation,
which permits a group of people, as shareholders, to create an organisation,
which can then focus on pursing set objectives, and empowered with legal
rights which are usually only reserved for individuals, such as to sue and
be sued, own property, hire employees or loan and borrow money. |
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Also known as a "corporation."
The primary advantage of a company structure is that it provides the
shareholders with a right to participate in the profits (by
dividends) without any personal liability (the company absorbs the
entire liability of the business). |
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Comparative negligence (see Contributory negligence below) |
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A principle of
tort law which looks at the
negligence of the victim and which may lead to either a reduction of the
award against the defendant, proportionate to the contribution of the
victim's negligence, or which may even prevent an award altogether if the
victim's negligence, when compared with the defendant, is equal to or
greater in terms or contributing to the situation which caused the injury or
damage |
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Condition precedent |
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A contractual condition that suspends the coming
into effect of a
contract
unless or until a certain event takes place. |
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Many house
purchase contracts have a condition precedent that states that the contract
is not binding until and unless the property is subjected to a surveyor's
inspection, the results of which are satisfactory to the purchaser. Compare
with "condition
subsequent." |
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Condition subsequent |
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A condition in a
contract
that causes the contract to become invalid if a certain event occurs e.g.
marriage, a Royal event etc. |
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This is different from a
condition precedent. The happening of a condition subsequent may
invalidate a contract that is, until that moment, fully valid and binding.
In the case of a condition precedent, no binding contract exists until the
condition occurs |
Conditional Fee Agreement (CFA)
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Usually referred to as a 'no win no fee' arrangment. |
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A
Conditional Fee Agreement (CFA) is a type of arrangement whereby payment to
the solicitor is dependent upon the result of the proceedings, and is
permitted (in certain instances) by Section 58 of the Courts and Legal
Services Act 1990 and the Conditional Fee Agreements Order 1998. |
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Under a CFA,
a solicitor can charge his client his usual hourly rate (charge out rate),
plus an uplift (or "success fee"), if he pursues his clients' case
successfully. |
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Condonation |