Smith and Keenan's English Law

1028 Pages·2013·30.289 MB·English

by  Charles Wild, Stuart Weinstein

Smith and Keenan’s
Smith and Keenan’s
‘The latest edition of Smith and Keenan’s English Law English Law
English Law
cannot fail to impress once again. This comprehensive
introductory law text is a dependable companion for every
non-law student and layman alike. The new authors are
to be commended for successfully carrying on the tradition
Wild & Weinstein
upon which the book's excellent reputation was built.’
seventeenth edition
Andrea Cerevkova, Edge Hill University
Charles Wild & Stuart Weinstein
Have you ever wondered what ‘Smith and Keenan's English Law is the most
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comprehensive text on English law available on the market.
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Well-known for its uniquely comprehensive coverage of the legal system and the main, substantive areas of English
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law, Smith and Keenan’s English Law is the defi nitive introduction to the law of the land and an all-purpose reference
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guide for students and professionals alike.
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In addition to the latest developments in case and statute law, the new edition includes these important updates: h n
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■ Part 1 on the English Legal System has been substantially ■ The chapters dealing with the Law of Torts have been
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revised to give a clearer picture of the way the law reworked to include greater consideration of case law
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operates today, including a more in-depth exploration and judicial thinking in the area. In addition, a section on L
of the English common law, the country’s unwritten nervous shock (psychiatric harm) has been introduced.
constitution, the legal profession and the recent ■ The chapters on Employment Law have been expanded a
emergence of Alternative Business Structures (ABS). in order to give a more complete picture of the potential
■ Alternative Dispute Resolution (ADR), an area of growing issues both employers and employees may face,
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importance with far-reaching implications, is explored for including an analysis of the contract of employment, the
the fi rst time, examining the various procedures which termination of employment, and issues of discrimination
have been grouped together under this umbrella term in the workplace. The impact of the Equality Act 2010 is
(i.e. negotiation, mediation and arbitration). considered in detail throughout.
KEY FEATURES:
■ An extensive section on the defi ning cases and legal commentary on the essential legal principles derived s W
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materials that underpin the law and are vital to from these authorities
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understanding the relevant subject areas ■ A handy glossary of the legal terms most commonly e ld
■ Clear headnotes, verbatim extracts and incisive used in everyday practice n

summaries of the leading sources with expert t &
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For further resources accompanying this text, please visit www.pearsoned.co.uk/legalupdates n
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Professor Charles Wild (PhD, MBA, LLM) is Dean of the School of Law and Head of the Centre for International Law at the i
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University of Hertfordshire. He teaches Company Law to LLB and LLM students, undertakes postgraduate research supervision e
and is widely published in the area. d s
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Stuart Weinstein (JD, MBA) is Associate Dean (Research & Commercial Enterprise) of the Law School at the University of t e
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Hertfordshire and is also a practising solicitor/attorney with over twenty years’ practice o i
experience in the US, UK and Korea. He regularly teaches accountants and non-lawyers in the n n
UK and on overseas programmes throughout the world. seventeenth edition
To fi nd out how law is changing at Pearson, visit
www.pearsoned.co.uk/lawischanging www.pearson-books.com
Cover: © Motoring Picture Library / Alamy
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Smith & Keenan’s
EngliSh law
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17th Edition Smith & Keenan’s
EngliSh law

TEXT anD CaSES
Charles wild
PhD, MBA, LLM, PCHE, LPC, CPE, BSc (Econ)
Dean of the School of Law, University of Hertfordshire
Professor of Legal Education, University of Hertfordshire
Head of the Centre for International Law, University of Hertfordshire
Stuart weinstein
JD, MBA, BA
Associate Dean (Research & Enterprise), School of Law,
University of Hertfordshire
Solicitor, Supreme Court of England and Wales
Attorney-at-Law, New York, California, District of Columbia
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Pearson Education limited
Edinburgh Gate
Harlow CM20 2JE
United Kingdom
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Web: www.pearson.com/uk
First published in Great Britain under the Pitman Publishing imprint in 1963 (print)
Second edition published 1966 (print)
Third edition published 1969 (print)
Fourth edition published 1973 (print)
Fifth edition published 1975 (print)
Sixth edition published 1979 (print)
Seventh edition published 1982 (print)
Eighth edition published 1986 (print)
Ninth edition published 1989 (print)
Tenth edition published 1992 (print)
Eleventh edition published 1995 (print)
Twelfth edition published 1998 (print)
Thirteenth edition published under the Longman imprint in 2001 (print)
Fourteenth edition published 2004 (print)
Fifteenth edition published 2007 (print)
Sixteenth edition published 2010 (print)
Seventeenth edition published 2013 (print and electronic)
© Kenneth Smith and Denis Keenan, 1963, 1966 (print)
© Denis Keenan and Mrs K. Smith, 1969, 1973, 1975, 1979, 1982 (print)
© Denis Keenan, 1986, 1989, 1992, 1995, 1998, 2001, 2004, 2007 (print)
© Pearson Education Limited 2010 (print)
© Pearson Education Limited 2013 (print and electronic)
The rights of Charles Wild and Stuart Weinstein to be identified as author of this work has been asserted by them
in accordance with the Copyright, Designs and Patents Act 1988.
The print publication is protected by copyright. Prior to any prohibited reproduction, storage in a retrieval system,
distribution or transmission in any form or by any means, electronic, mechanical, recording or otherwise, permission
should be obtained from the publisher or, where applicable, a licence permitting restricted copying in the United Kingdom
should be obtained from the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS.
The ePublication is protected by copyright and must not be copied, reproduced, transferred, distributed, leased,
licensed or publicly performed or used in any way except as specifically permitted in writing by the publishers,
as allowed under the terms and conditions under which it was purchased, or as strictly permitted by applicable
copyright law. Any unauthorised distribution or use of this text may be a direct infringement of the author’s and
the publishers’ rights and those responsible may be liable in law accordingly.
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland.
Law Commission Reports are reproduced under the terms of the Click-Use Licence.
Contains public sector information licensed under the Open Government Licence
(OGL) v1.0. www.nationalarchives.gov.uk/doc/open-government-licence.
Pearson Education is not responsible for the content of third-party internet sites.
ISBN: 978-1-4082-9527-4 (print)
978-1-4082-9605-9 (PDF)
978-1-292-00349-8 (eText)
British library Cataloguing-in-Publication Data
A catalogue record for the print edition is available from the British Library
library of Congress Cataloging-in-Publication Data
Wild, Charles.
Smith & Keenan’s English law : text and cases / Charles Wild, Phd, MBA, LLM, PCHE, LPC, CPE, BSC (Econ), Dean
of the School of Law, University of Hertfordshire, Head of the Centre for International Law, University of Hertfordshire;
Stuart Weinstein, JD, MBA, BA Associate Dean (research & enterprise), School of Law, University of Hertfordshire solicitor,
Supreme Court of England and Wales Attorney-at-Law, New York, California, District of Columbia. -- 17th edition.
pages cm
Includes index.
ISBN 978-1-4082-9527-4 (pbk.)
1. Law--England. 2. Law--Wales. I. Weinstein, Stuart. II. Smith, Kenneth, 1910–1966. English law. III. Keenan,
Denis J. Smith and Keenan’s English law. IV. Title. V. Title: English law. VI. Title: Smith and Keenan’s English law.
KD661.S6 2013
349.42--dc23
2013006607
10 9 8 7 6 5 4 3 2 1
16 15 14 13
© Motoring Picture Library/Alamy
Print edition typeset in 9/12pt ITC Giovanni Std by 35
Print edition Printed by Ashford Colour Press Ltd., Gosport
NOTE THAT ANY PAGE CROSS REFERENCES REFER TO THE PRINT EDITION
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Contents
Preface xiii The courts today 56
The book at a glance xv Magistrates’ Courts 58
Youth courts 65
law Report abbreviations xvi
The County Court 65
Table of cases xviii
The Crown Court 73
Table of statutes xlvii
The Central Criminal Court 75
The High Court – generally 75
PPaarrtt 11 The Commercial Court 77
TTHHEE EENNGGLLIISSHH LLEEGGAALL SSYYSSTTEEMM The Companies’ Court 78
The Bankruptcy Court 78
1 The nature and development The Court of Protection 78
of English law 3 The Technology and Construction Court 78
Restrictive practices 79
Classification of English law 3
The Court of Appeal – generally 79
The study of law 5
Appeals up to the Civil Division 79
The development and sources of
The Criminal Division 82
English law – generally 6
Assistance for transaction of judicial
The common law 6
business in the Supreme Court 85
Equity 9
The Judicial Committee of the Privy Council 88
Relationship of common law and equity 13
The Court of Justice of the European
Legislation 15
Communities 89
Delegated legislation 17
The role of the European Court at
Custom 17
Luxembourg 90
Canon law 18
The International Criminal Court 92
Legal treatises 19
The European Court of Human Rights 92
2 The unwritten constitution 20
5 Tribunals and judicial review 93
Key events in the development of the
Administrative tribunals 94
constitution 20
Employment tribunals 95
Fundamental principles underpinning the
Alternative dispute resolution (ADR) 99
constitution 23
Administrative inquiries 99
Advantages of tribunals 99
3 The law-making process:
The Tribunals and Inquiries Acts 100
legislation and case law 27
Domestic tribunals 101
The United Kingdom 27 Judicial control over inferior courts and
Delegated legislation 34 tribunals 102
Interpretation of statutes by the judiciary 38 Other controls on decision making 110
Case law or judicial precedent 43
6 Alternative dispute resolution 113
4 The courts of law 55 When is ADR appropriate? 114
The Senior Court of Judicature (formerly the Types of ADR 115
Supreme Court of Judicature) 55 Written offers 115
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vi Contents
Negotiation 115 Getting the accused into court 169
Mediation 116 Procedure at the police station 171
Conciliation 117 The trial of criminal proceedings 177
Arbitration 117 Commencing the prosecution 177
Funding the defence – legal aid 180
7 The main legal professions 122 Financial eligibility 180
Background 122 Bail 181
Barristers 125 Criminal trials and the Human Rights
Solicitors 128 Act 1998 185
Lawyers’ practising certificates 129 Summary trial before magistrates
Disciplining the legal profession 130 (other than in a youth court) 186
Legal executives 130 Proceedings in the youth court 190
Notary public 130 Trial on indictment in the Crown Court 190
Law centres 131 What is an indictment? 191
The Judicial Appointments Commission 131 Reporting 191
Removal and retirement of judges 134 Alibi 191
Other important judicial offices 135 Place and time of trial 192
The offence and indictment 193
8 Legal services 139 Arraignment 193
Legal Services Board 139 Jury trial 194
Alternative business structures 140 Committal to the Crown Court for sentence 202
Reserved legal activities 140 Appeal in criminal cases 202
Rights of audience 141 Contempt of Court Act 1981 202
Overriding duties of advocates and litigators 142 Sentencing 203
Rights of audience and employees of Custodial sentences – generally 203
the Crown Prosecution Service 142 Community orders 207
Conveyancing services 142 Prison sentences of less than 12 months 208
Probate services 143 Suspended sentences 208
Administration of oaths and the taking Deferred sentences 208
of affidavits 143 Release of offenders from custody 209
Payment for legal services 143 Fines 209
Absolute discharge 210
9 Civil procedure 146 Conditional discharge 210
Initial considerations 146 Binding over to keep the peace 210
Funding the claim – generally 147 Binding over of a parent or guardian 211
Conditional fee agreements (CFAs) 149 Travel restriction orders 211
Alternatives to a claim in court 152 Compensation orders 211
The commencement of proceedings 154 Anti-social behaviour orders 211
The defendant’s response to the claim 155 Youth crime and disorder: sentencing 212
Reply to the defence 156 Youth community orders 212
Requests for further information 156 Restitution of property in criminal cases 214
Case management and allocation of cases 157 Rehabilitation of Offenders Act 1974 –
Court enforcement of timetables 159 non-disclosure of sentence 215
The trial 160
Appeals 162 11 The Human Rights Act 217
Enforcing a judgment 162 The scope of the Convention 217
The European Court of Human Rights 218
10 Criminal procedure 166 Impact of the Human Rights Act 1998 218
Criminal procedure – generally 166 The European Court of Justice and
The prosecutor 167 Human Rights 225
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Contents vii
12 Persons and the Crown 227 Insurance contracts: Articles 8–14 295
Consumer contracts: Articles 15–17 296
Natural persons 227
Employment contracts: Articles 18–21 297
Juristic persons 246
Unincorporated associations 249
Limited liability partnerships (LLPs) 254 PPaarrtt 33
The Crown 255 TTHHEE LLAAWW OOFF CCOONNTTRRAACCTT
PPaarrtt 22 16 Making the contract I:
EEUURROOPPEEAANN UUNNIIOONN LLAAWW offer and acceptance 301
Overview of contract law 301
13 The legislative organs Freedom of contract 301
of the European Union 263 The essentials of a valid contract 302
The European Union 263 Classification of contracts 302
The Treaty on European Union 1992 The formation of a contract 305
(Maastricht Treaty) 264 Agreement 305
The Treaty of Amsterdam 1997 264 Offer and invitation to treat 306
The Treaty of Nice 2001 265 Acceptance – generally 308
The Treaty of Lisbon 2007 Termination of offer 314
(The European Reform Treaty) 265 Trading electronically 317
Subsidiarity and its application 265
17 Making the contract II:
The institutions of the European Union 266
consideration and estoppel 319
14 Sources of European Union law 271 Consideration 319
Introduction 271 Consideration in relation to formation of
Sources of European Union law 271 a contract – generally 320
Direct effect in the United Kingdom 272 Consideration viewed in relation to
Vertical and horizontal effect of EU law 274 the discharge or variation of a contract 330
National courts and the European Court Common law – the rule of accord and
of Justice 276 satisfaction 330
Equity – the rule of promissory estoppel 332
15 Jurisdiction i n personam : Discharge of contract by performance –
the Brussels regime 280 relevance of the High Trees case 334
The meaning of jurisdiction 280 Equitable estoppel – other applications 334
The liberality and simplicity of the common Intention to create legal relations 334
law of jurisdiction 280
18 Making the contract III:
The development of the Brussels regime 281
formalities and capacity 338
Actions in personam where the defendant
is ‘domiciled’ in the EU 283 Formalities 338
The interpretation of the Regulation 283 Capacity to contract 341
The scope of the Brussels I Regulation 284 Minors 341
The concept of ‘domicile’ under Consequences of the defective contracts
the Brussels regime 285 of minors 342
The central jurisdictional rules under Mental disorder and drunkenness 343
the Regulation 287 Corporations 344
Exclusive jurisdiction 289
19 Reality of consent: mistake,
Prorogation of jurisdiction 290
Special jurisdiction 292 misrepresentation and duress 347
Contract: Article 5(1) 292 Introduction 347
Tort: Article 5(3) 294 Mistake 347
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viii Contents
Unilateral mistake 348 The approach of Parliament to exclusion
Non-identical bilateral (or mutual) mistake 348 clauses 387
Bilateral identical (or common) mistake 349 Exclusion clauses applicable if reasonable 388
Documents mistakenly signed 350 Reasonableness 389
Rectification 351 Provisions against evasion of liability 392
Misrepresentation 351 Unfair contract terms regulations 392
Meaning of representation 352
Types of actionable misrepresentation and 22 Illegality, public policy and
remedies in general 355 competition law 396
Remedy of rescission 357
Introduction 396
Damages 358
Public policy – the contribution of the
Duress 359
judiciary: illegal contracts 397
Consequences 399
20 Contractual terms 361
Public policy and the judiciary –
Inducements and terms – generally 361 void contracts 400
Inducements and terms distinguished 362 Contracts in restraint of trade – generally 401
Conditions and warranties 364 Voluntary contractual restraints of trade on
Innominate or intermediate terms 364 employees generally 401
Implied terms – generally 365 Contractual restraints on employees
Implied terms in consumer law – through the period of notice 402
sale of goods 366 Non-contractual restraints on employees:
Title 366 confidential information 403
Sales by description 367 Employee restraints arising from agreements
Implied conditions as to fitness 368 between manufacturers and traders 405
Satisfactory quality 370 Restraints imposed on the vendor of
Fitness and satisfactory quality 372 a business 405
Sale by sample 373 Restrictions on shareholder-employees 406
Implied terms in consumer law – the supply Restrictions accepted by distributors of
of goods and services 373 merchandise 406
Supply of goods other than by sale 373 Involuntary restraints of trade 406
Contracts for the transfer of property in goods 374 Consequences where the contract is
Contracts for work and materials 374 contrary to public policy: severance 407
The terms implied 374 Public policy: the contribution of Parliament 408
Remedies 376 Wagering contracts: insurance and dealing
Exchange and barter 376 in differences 409
Contracts for the hire of goods 377 Competition law 409
The terms implied 377 The European Community approach to
Exclusion clauses – supply of goods 378 restrictive practices 415
The supply of services 379
Exclusion clauses – supply of services 380 23 Discharge of contract 417
The Sale and Supply of Goods to
Discharge by performance 417
Consumers Regulations 380
Construction of the contract as entire 417
Substantial performance 418
21 Exclusion clauses and other
Acceptance of partial performance 418
unfair terms 383
Full performance prevented by the promisee 418
Exclusion clauses – the issue of Time of performance 419
communication 383 Tender 419
Construction of exclusion clauses 386 Appropriation of payments 420
The doctrine of fundamental breach 386 Discharge by agreement 421
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Contents ix
Discharge by frustration 422 Nervous shock 489
Contracts for personal service 422 Professional liability 492
Government interference 423
Destruction of the subject matter of the 27 Torts relating to property 500
contract 423
Trespass to land 500
Non-occurrence of an event 423
Nuisance 506
Illegal 424
Public nuisance 506
Commercial purpose defeated 424
Private nuisance 507
Situations in which the doctrine
The Rule in R ylands v Fletcher 514
does not apply 424
Wrongful interference with goods 517
Consequences of frustration 425
The Law Reform (Frustrated Contracts)
28 Miscellaneous torts 522
Act 1943 425
Trespass to the person 522
Discharge by breach 426
Arrest and the tort of trespass to
Anticipatory breach and supervening events 427
the person 526
Effect of breach on a contract 427
Remedies available against false
Other matters relevant to breach 428
imprisonment 527
Affirming or discharging the contract 428
Defamation 527
Publication 531
24 Remedies and limitation of actions 430
Remedies for defamation 542
Common-law remedies 430 Passing off 543
Equitable remedies 438
Remedies agreed by the parties 441 29 Defences and remedies in tort 546
Contributory negligence 546
Volenti non fit injuria 549
PPaarrtt 44
Remedies 556
TTHHEE LLAAWW OOFF TTOORRTTSS
Damages – generally 557
Damage after successive accidents 563
25 The law of torts: general
Cessation of liability 565
principles 445
The nature of a tort 445
Damage and liability 446 PPaarrtt 55
Parties in the law of torts 447 TTTTHHHHEEEE LLLLAAAAWWWW OOOOFFFF PPPPRRRROOOOPPPPEEEERRRRTTTTYYYY
Vicarious liability 454
Who is an employee? 454 30 The law of property 571
Rights of non-employees 458
The nature of property 571
Nature of vicarious liability 458
Ownership 572
Liability for torts of independent contractors 462
Possession 573
Bailment 576
26 Tort of negligence 464
Land law 580
Negligence – generally 464 Equitable interests 584
The duty of care – generally 464 Co-ownership 586
Economic loss 468 A leasehold or a term of years 589
Product liability 476 Privity of contract 594
Consumer Protection Act 1987 479 Tenants’ rights to acquire the freehold
Occupiers’ liability 480 of houses and blocks of flats 596
Highway authorities 485 Servitudes 600
Defective Premises Act 1972 485 Restrictive covenants 606
Employer’s liability 486 The transfer of land 608
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