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Cambridge Professional English in Use. Law

Cambridge Professional English in Use. Law

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Contents

THANKS AND 2 LEGAL PROFESSIONALS
ACKNOWLEDGMENTS m Solicitors 24
INTRODUCTION 6 A Legal practitioners
B Training
C A partner iII a law firm
THE LEGAL SYSTEM
D 1m Barristers 26
Legal systems 8
A Organisation
A ThL: structure ot the law Training and qunlificnrions of practising
B The constitution banisters
C jurisdiction
m Working lives 28
fJ Sources of law: legislation 10 A A company commercial lawyer
A Background to making new- law B A leg n l secretary
B Early development of a Bill m Judges
c Passing an Act 30
A Judicial appointments in England and \{'alcs
0 Sources of law: 12 The training of judges.
common law c Civil courts: sen-cueing und court orders
A Common law in (he UK III A law firm's structure and 32
L~ ...... , T"I,-"PUrlS practice
D The court system 14 A A law finn")s structure r.nd practice
A Civil courts
Criminal courts LEGAL PROFESSIONALS IN PRACTICE
B Criminal justice and 16 m Client care procedures 34
criminal proceedings A Explaining cl icnr ce re procedures
A Crimina] justice
B Cucg_orics of criminal of knee 1m Money laundering 36
C Criminal court proceedings; procedures
iii Civil procedure 18 A Monev laundering procedures
A Civil Procedure Rules 1m Client correspondence 38
B Proceeding with a claim
A Client correspondence
U Tribunals 20 B Standard ph-ases for starring und end ing
A The status and range of tribunal" 'etters and cmails
B Composition of tribunals and procedure m Explanations and 40
iii European Un ion law 22 clarification
A What" the I'U' A Explaining a procedure
How does the Ell impact lin B Approximating and comparing
Member Stares? C Rephrasing and d<lrifying Professional Englfsh in Use Law

1m Legalese

A Lega I language B 1 .ati n term,

C Older words and modern equivalents

LAW IN PRACTICE

1m Business organisations

A Sole trader B Partnerships

C Limited Companies

em Formation of a company 46

A Incorporation

B Mcmonutdum and Articles of Association

fD Raising capital by share sale

A Share C;J pita] B Share value

C Rights attaching to share ..

m Debt financing: secured lending

A Granting 5[,( Lint)

B The terms of u charge

m Company directors and company secretaries

A Qualiticarions and duties of a company director

B Qua_lifi(;atinil~ and duties ot a C(JInp~ny secretary

OJ Insolvency and winding up 54

A Insolvency

B Insolvency scenarios

m Alternative dispute 56

revolution

A Alternative dispute resolution AnI{ procedures

m Corporation Tax

A Corporation Tax liability in the UK B Word combinations with 'ta x'

4

Profe:;:;IDnal English in u.~~ Law

42

A Exclusion und limirarion clauses B Standard clauses

m Mergers and acquisitions

60

A Mergers and acquisitions.

B Dealing disclosure requirements

fIll Anti-competitive behaviour 62

44

A Competition 1<1",-"

B Cc-npcririon inquiry

C Information garhcri ng; hcarlng~l ami remedies

LIABILITY

fli] Tort 1: personal injury claim

64

48

A Ton

B Cheat briefing notes - personal inj ury claims

1m Tort 2: clinical negligence 66

A CllIlEc.1.1 nt'glig.t'nct' practice

50

CONTRACT

m Forming a contract 1

68

A Ba sic principles Formation of J. coutracr

If) Forming a contract 2

70

52

A Form of conrrucr

B Void or voidable or unenforceable contracts

ED Structure of a commercial 72 contract

A Structure of a commercia. contract

In Express and implied terms 74

A Exp ["tS~ terms Implied terms

1m Exclusion, limitation and 76

standard clauses

58

m Privity of contract, discharge, and remedies

A Privity of contract

B Discharge of contract

C Remedies for breach of conrcacr

m Standard terms in the sale and supply of goods

A USl ng standard terms Incorporating terms

1m Licensing agreements and computer programs

A Licences ariel software products. B Exclusion and lirnirarion clauses

OJ Commercial leases

A Interest in property

B Terms of It commerciallease C Obtaining leasehold interest

em Buying and selling commercial property

A Commercial convevancinc B Sale by auction

C Sale by private treaty

m Employment law

A Employment law

B Conrracr of emolovmenr

INTELLECTUAL PROPERTY

CD Copyright and patent 90

A Cnpyrig,hr 8 Patent

OJ Trade marks, domain 92

names, and remedies for

IP infringement

A Trade marks and domain names B Remedies for TP infringement

78 INFORMATION TECHNOLOGY LAW
OJ Information technology 94
law and cybercrime
A Computer security
B Cvhercrirne
80 C Data protection
ENVIRONMENTAL LAW
em Environmental law 96
82 A Iutc-na tionul ell vironmental law
B National environmental law
C Application of envircnrner.tal b\\l
84 Answer key 98
Index '13
86 88

Profe.s.si(Jna! Englfsh in Use Law

Introduction

Who is this book for?

Projessirmal Fnglish in Use I.au: is for" wide range of people who need to lise legal English vocabulary in their work, for example as lawyers or htigarors, paralegals or legal researcher.';, 'legal secretaries or trainee 'lawyers. English language learners rr a y need to use legal Engl.s}; to work with foreigr. colleagues Or clients; to describe or expl;1in aspects of [heir own legal system; to find om about other SYStCl1K The book is also for students of law who wisb co develop their kno\\dcJge of legal English vocabulary to assist their legal studies. It will also help extend the vocabulary of business professionals who need some knowledge of legal English vocabulary for commercial agreements ;and rransactions. The book is suitable for learners who have reached an upper-intermediate or advanced level of English. The book can be used effectively for individual study or by 3 teacher in class, one to one or in groups. If you are preparing for the [LEe exam (International Legal English Certificate), this book will help you to develop your vocabulary,

Language and law

I'he book aims to help learners develop their legal English vocahulary, It is nor intended

to be an introduction to law in English spea,king countries nor to be relied upon for information or advice .about law or the practice of law. It presents vocabulary- in the context of the legal systems in the UK because the meaning of any legal terms and the cor.ceprual relationship between terms is located within a specific legal system. The authors assume

rhar you will need to talk and write about your own leg;} I system. Consequently) some tasks encourage you to think abour how f,H your own system shares the same legal concepts

Or procedurc5';, and to decide whether to usc a legal term in English as an equivalent to a concl'pt in your own system or to enlploy J.11 .rpp-oximarion in discussion or wri-ing (see Unit 17).

What kind of legal English is in this book?

This book concentrates on the vocabulary arising from the practice of commercial iaw (including company law, contract formation, employment law, sale of goods, real properryj and intellectual propenyl but also presents more general legal Engh.sh vocabulary. The legal topics covered arc common to manylegal systems and In that context the book has an inrernarionu. dimension. There are references In most urnts of the book to Enghsh language websires to help you to extend your language practice and to assist your understanding of legal concepts in Ellg!ish in authentic contexts.

How is the book organised?

The book consists, of 4S two-page units organised into four thcmar.c sections: The legal system, Legal professionals, Legal professionals in practice, and Law in practice lincluding Liability) Contract, Intellectual property) Infonnation technology law and Environmental law], The units proceed from general leg;:tl topics to more specific.

The left-hand page of each unit presents legal terms and expressions in context and the right-hand page is designed to let you check and develop your understanding of them and how they are used through a series of exercises. Key terms or expressions may occur in more than One unit.

There is all answer key at the back of the book. Most 0 r the exercises have questions with only one correct ,11lSWer. If rhere is more [han one possible answer the exercise tells you. Some of [he exercises, including the Over to you activities at the end of each unir (see below), are designed for discussion arul/ur wriring about the legal [unsdiction you work DI study in.

Where appropriate, website addresses at the butto-n of the right-hand pages give links to further intorrnariou in English on related legal topics.

6

Professional English in Use Low

Abo at the end of the book there i, a Il index w hieh lists the key words J nd phrases which have been highlighted and gives the unit numbers in which the), appear. The index also tells you how the words and expressions are pronounced.

The left-hand page

The texts on the left-hand page vary in length. Each text has a dear heading. Some texts

are from spoken contexts; others from written. Some <.1 re from formal contexts, for exampk' an extract from legislation, or comract terms, or a formal presentation; ethers are from more informal inreractions, for example discussions between legal colleagues talking about aspects of their wor-k. Some units draw your attention [0 characteristic features of legal language in English or to differences between legal English usage in the United States and England. All the units highlight typical word combinations.

The right-hand page

A range of exercises on the right-hand page give practice in using the highlighred legal vocabulary and expressions from the left-hand page. Sometimes the exercise, provide practice in contexts like cmails between legal colleagues, letters to clients) contract terms, or legal forms. OTher exercises focus on checking comprehension of meaning or distinctions in usc between similar words, stress in pronunciation, Or the formation of words.

'Over to you' activities

These activities give you the chance to practise using English legal language to write or ra lk about aspects 01 a legal Jurisdiction known to you, and about your own work, study, or "pinions. Self-study learners can do these as a written activity or set up a computer blog to share .dcas with others wanting to develop their legal English vocabulary through practice.

In the classroom, the Over to you activities can be used as the basis for discussion in small groups, with a spokespersDIl for each group summarising the discussion and irs outcome for the class. Alternatively, pairs can exchange views, ideas, or information and rhen comhine with another pair to report on their discussion. TIle teacher can monitor the discussions for appropriate and accurate use of vocabulary. Learners can follow up by using the Over to you as a written activity, for example for homework. Learners might do more research on language use by exploring the suggested web links.

How to use the book for self-study

Find a topic you are looking for hy referring to the contents page Or the index. Quickly write in note form in English what you already know about the topic and any questions you have. Then read through the text, on the left-hand page of the unit. If you are unsure of the meaning of terms, try TO guess the meaning from the context as YOLI read. Do the exercises on the right-hand page. Check your answers in the key. If you have made am mistakes look at the text again and cheek the exercise. Write down useful words in a notebook; notice how they are used in other texts. If you arc still unsure of any words, look them up in a law dictionary. There arc also legal glossaries online.

How to use the book in the classroom

Teachers can choose the units that relate to learners' particular needs and interests,

or themes which the course is focusing on. learners can work on the units in pairs or individually, the teacher going round the class listening and advising. Teachers should encourage learners to discuss why one an swcr is possible and others are not.

We hope you find the bo"k u5eful amI easy to usc. We would welcome your comment' and suggestions on using it.

Professional Englisn in U~e law

7

Legal systems

_ The structure of the law

The study of law distinguishes between public law and pr+vate law, but in legal practice in the UK" the distinction between civil law and

~ criminal law !s n-or e important to practising lawyers. Public law relates to the state. It is

i concerned with laws which govern processes in local and national governmen.t and conflicts between the individual and the state in areas SUCl1 as immigration and social securltv. Private law is concerned with the retaticnshtps between leQsl persons, that is. individuals and corporations, and includes family law, contract law and property law, Criminal law deals with certain forms of conduct for which

offender Civil law concerns relationships between private persons, their rights, and their duties. It is also concerned with conduct Wllich may give rise to a claim by a legal

person for compensation or an tnjunction - an order made by the court. However: each field of law tends to overlap with others, For example, a road accident case may lead to a criminal prosecution as well as a civil action for compensation.

_ The constitution

The head of state Is the mona rch, currently the Queen in the UK, but the government carries the authority of the Crown (the monarch). The

j Westminster Parliament has two chamber-s: the House of Lords and the House of Commons, which sit separately a nd a re constituted on rnrterent principles. The Commons IS an elected body of members. Substantial reform

Substantive law creates, defines

requlates rights, llebllitles, and duties In all areas of law and is contrasted with procedural law, which defines the procedure

is being carried out in the upper house, the House of Lords, whe re it is proposed that the majority of members. be appointed, with a minority elected, replacing the hereditary peers. There IS ria written constitution, but constitutional law consists of statute law (see Unit 2), common law (see Unit 3), and constitutional conventions.

There are four countries and three distinct jurisdictions in the United Kingdom: Ellgland and Wales, Scotland, and Northern Ireland. All share a legislature in the Westminster Parliament for the making of new laws and have a common law tradition, but each has its own hierarchy of courts, legal rules and legal profession. Wales and Northern Ireland each have their own Assembly and since 1999 Scottish Members of Parliament (SMPs) have sat In their own Parliament. Under an Act of the Westminster Parliament,

lllllil. Jurisdiction

------------------------------------------~

8

the Scottish Parliament has power to legislate on any subject not specifically reserved to the Westminster Parliament such as defence or foreign policy, The UK's accession to the European Communities in 1973: authorised by tile European Communities Act 1972, has meant the addition: of a further legislative authority in the leqe! system. The UK is also a signatory of the European Convention af Human Rights and this has been incorporated into UK law.

Professiorlal ErlglJ'sh tn Use low

1.1 Complete the dcfiniriuns. Look at A opposite to help you .

1 ......

are punished b)! rhe state.

2 .. . is concerned with the constitution Or government of the

state, or the reLHlonship between stare and citizens.

3 . . '" , , , , , .. is rules which determine how a caSE is adminisrered by the

. ... ... , is L1.\v relating [0 acrs comrnirrcd against [he law which

courts.

4 is concerned with the nghrs and duties of individua.s,

organisations, and associations (such as companies, trade unions, and charities), as opposed (0 criminal law,

5, ,.", , , , , , .

is common law and statute law used by the courts in

making decisions.

1.2 Complete the sentences Look at Band C opposite to help vou, There is more than one possibility for one of the answers.

III many systems a president rather than a monarch is ...

The UK system has a parliament wuh rwo

As in other countries. the courts are organised ill a of levels.

4 The Scottish Parliament has the to Icgisbtc un suhjects nor reserved to

\X'estrninster.

5 The Ie is animportant legislative" 6 A number of international

in most Lurupcan countries,

have been Incorporated [11(0 national law.

1.,3 Complete the table with words from Al Band C OpPOSilC and related forms. Pur a stress n-nrk in iron, of the stressed syllable in each word. The first one has been done for you. Then complete the scnrcuces below with words from the rab!-.

Verb NOLIn Adjective

consnrute

con6tijtutiQnai

.'

canst! tution

proceed

convene

regulation

accede

elect

authorise

1 The is the body which has the function of making law, normally ir is rhe

Parliament.

2 It is quire a lengthy pro-ees:; ro to the European Corrrm.nity.

3 Sometimes 01 court case can be delayed while counsel argue over problems.

OVer -+0 ~Oll ,~

Describe some of the distinctive features of your legal system and constitution, first as if to a foreign lawyer. then as if to a forcig n lav person.

For more information on the UK Parliament and legislative processes. go to: www.parliament.lIk: for the US Senate. go to: www.senate.gov/.

Prore'Ssionol English in Use Low

9

Sources of law: legislation

_ Background to making new law

rrafft¥ff.fN!&.Mff!'6M:J¥.f!1P.iiJJUCIi;,*45M5!S9.t.5 For our .. -. 1

overseas ellenbs

How are laws made in the UK?

us find us

The predominant sources of law in the United Kingdom are:

• primary legislation, known as Acts of Parliament or statutes, which begin life as drafts called Bills (see Band C below):

• secondary or delegated teqtslatfon. such as statutory instrumentsl bve-Iaws, and professional regulations,

A new Act IS passed In order to:

oil updaba or amend existinq legislation;

• legislate for new circumstances and enforce government poucies:

ensure UK compliance with International or European Union (EU) La~..,;

consolidate laws by bringing toqetner into One statute all the existing statutes on one topic:

II codify rules by bringing together all the case law and statutes an a particular subject where the principles are established.

Parttarr ent can enact anv law

chooses or repeal obsolete 'laws which are no longer relevant, and the courts must enforce it. The exception to this is EU law.

Note: Act of Parliament and Bill are always capitalised in legal usage; statute is not Statutory instruments are delegated legislation created by government ministers Bye-laws are made by Local Government Or public bodies.

I

_ Early development of a Bill

The government may proceed to initiate a consultative process by the publication of a Green Paper in which its proposals are set out at an early stage with the intention of attracunq public response and comment The government's White Papers contain their rnore definite proposals, although these are often

[ BrE: an Act; AmE; a Bill [

published following consultation Dr discusston with pr-esaure qr-cup's, professional bodies, or vOluntary organisations. A Bill does not have to be preceded by a White or Green paper, although it may have been presented for public scrutiny, that is, exarnlnation, In draft form earlier.

_ Passing an Act

All Acts must be subm itted to both Houses of Parliament in the draft form of a Bill. The I t29ls1 ative process mvolves three readillg5 In both Houses, At the first reading, the title is: read to Members of Parliament (MPs); at the second reading, MPs debate proposals. Then a standing committee will scrutinise the provisions in the Bill and may amend It to ensure that it enshrines the principles debated and approved at the second reec i ng ThiS is reported back to MPs. At the third reading, the Bill is re-presented. The Bill then goes through readings in the upper house. The actual

drafting of the legislation is undertaken by Parliamentary Counsel. Finallv, a Bill must" receive Royal Assent from the rna narcn before it becomes "law on a specified date. In fact, this stage has been reduced to a formal reading of the short title of an Act in both Houses of Par-llament and is now a formality.

Government Bills are introduced by the Government; Private Members Bills are proposed by MPs. Bath methods may result In Public Acts that govern the qeneral public. Private Acts affect particular individuals or institutions.

10

Pro(es:sklrlOl EngJJsh iii Use Law

Note: No article (a/the) is necessarv in to become law

2.1 Find verbs ill A opposite that can be- used to make word combinations with rhe words below.

There is more th<1tl one possibility for three of [he answers.

Parliament can

.............................. Acts of Parliamenr,

new statures.

3 existing legislation.

4 obsolete law.

5 , , , , , , , , smrute Jaw, case law, and amendments into one Ace

6. . " .. , , , , law by repealing and re-ensctlng in one .smrute provisions of a number of

statu res on the same SU oject.

2,2 Complete the sentences. Look at A, B and C opposite to help you. POlY atrennon co the grammatical context.

An order made under authority delegated to J government

minister by an Act of Parliament is known as a , , , , , ..

A is made by ,\ local authority or a public Or

nationalised body and has to be approved by central government. Charities like Oxfam and Help the Aged can ncr as

, lobbying for law reform.

4 The Cummirrcc need." to ensure the Hill incorporates the principles agreed so they check it by

Freedom of Information Act 2000

An Act of Parliament

2.3 A visiting Russian coll(:'aguc is asking an English sollciwr about the lcgislati\'(::" process. Replace the underlined words in [heir convcrsarion with alrer-narive words from C opposite. Pay arrcnrinn ro the grarrmarical context. There is more [han one possibility for two of the answers.

Nara-hs How 1:;' new leg~~Jation enacted?

Charles: Well, initially the (I) draft Icgisbtion has ro he (2) prcscmcd to both houses.

The draft is (3) discussed several rimes. A committee has the job of checking rhar [he Bill (4) InCOmOr,lteS the fundamental elements (5) ~ or rhe second reading. After this, the Bill is (6) shown again to the lower house.

Narasha: Who does the (7) formal writin~ of the legislation'

Charles: It's I~) donE by qualifed barrisrers employed as civil servants, known as Parliamentary Counsel.

Natasha. Who can W) pur forward Bills?

Charles: The government n-id, less commonly, :vIPs.

o/e« ..fO '10U ,"

Describe the process of making new law in your country. What are the strengths and wea knesses of the process?

For more information on the UK Parliament and leg islative processes, go to: www.parliament.uk. For legislation around the world, go to: www.lex~din.nl/wlg/legis/nofr/legis.h tm

Profession(ll English in Use low

II

Sources of law: common law

_ Common law in the UK

Penny Arkwright practises in the High Cou-r. She is <peaking at an inre.cnarirmai convention for young lawyers.

'The legal system in many counrnes, including Ausrr.iha, C(1D:;Id.;. (except Quebec), Ghana, Hong Kong, India, jamaica. Malaysia, New Ze~lolld, Pakistan, Tanzania, the USA (except Louisiana), the K~h.;:1mas) and Zarnbc., is based on common law. °fhe common law consists of the substantive law and procedurvl rule-, then are crenred by the judicial decisions made ill the courts. t-\Irhough legi~la[ion may override such decisions! the legislanol.1 itself i~ subject to interpretation and refinement in the courts.

Essential to the common law is the hierarchy of the courts in all of the UK jurisdictions

a ntl the principle of binding precedent. In. practice, this means that the decision of a higher court is binding On a lox ... -er court, that is, the decision must be followed, and in the course of a trial the judges must refer to existing precedents. They'll also consider decisions made in a lower court, although they're nor bound to follow rhcm. However! a rule set by.] court of greater or equal status must be applied if it's to the point - relevant or penjnent.

During a trial, counsel will cite cases arid either attempt to disringuish the case at trial from those referred to or, ',\ lteHlatlw\y, a'gue ,hat tb. rule at law reasoned ~nd established in a previous case is applicable and should be followed. Hence the term case law. A case will inevitably involve marry filets and issues of evidence. The eventual decision itself doesn't actuallv set the precedent. The precedent is tho rule of law which the first Instance judge relied on ill determining the case's outcome.

Judges in a case may -nake other Statements of law. \Xlbilst not constituting binding precedents) these may be considered in subsequent cases and may be cited as persuasive aurhoriry, if appropriate. Since rhe Human Rights Act of 1988, all courts in the United Kingdom rnusr now refer to the ultimate autboriry of the European Court of Human Rights, including all previous decisions made by that COUH.'

Note: practises - qualified to work professionally

--

12

Law reports

'The development and application of the common 1:3\-\' system pivots upon the ex.srence of a comprehensive system of reponing C,15es. The Law Reports, published annually by the Council of Law Reporting, are perhaps the most a uthurirative and frequently cited set ot reports, differing h-om other series of law report.;;., such a-s; Butterworth's All England I.aw Reports [All ERJ or specialist reports like lloyd, Law Reports, in rhar they contain summaries of counsel's arguments and are revised by the judge sitting in each respective GISC IX'fore publication. Cases aren't always reported in [he year that they arc decided so a case citation will refer [0 rhe volume and year in which the case was published, for exa'.nple Meah

i! Roberts, [19n] 1 All ER 97. Developments in elecrron:c databases have increased public access to recent cases.'

Note: tatn terms used for the legal principles outlined in the above texts are:

stare decisis - principles of binding precedent m l"io decidendi - the rul e at law reasoned obiter dictum ~ persuasive authority

In a civil case citation, for example Ivleah v Iloberts, [1978]1 All ER 97. V (Latin for versus] is said 'and'.

proression.al Eng{i~JI ill Use Law

Butterworth's All Erqland Law Reports

3~ 1 Penny Arkwright is talking about her experience of court cases [0 a Russian colleague.

Replace the underlined words and phrases with alternative words and phrases from A and B opposite. Pay attention [0 the grammat~cal COil text. There. 1.5 more than one possibility for one of the answers.

The courts are compelled to apply the precedent set by a higher court.

During the court case the lodge will evaluate all the evidence and the legal Issues

3

~

Judges are required to follow the ratio, or reasoning, ill relevant previous decided cases.

4

However, rhe judge may note a case cited as precedent by counsel as

matur iallv different from the one at trial.

3.2 Complete the table with words frurr. A and B opposite and related forms. Put a stress mark in front of the stressed syllable in each word. The first one has been done for vou,

5

It is, however, the role of counsel [0 refer w relevant previous case decisions.

6

The principle of following the decision, of higher co urrs is tunda mental to case law,

The Law Reports series arc the most frequently cited repor-s because the text is edited by the trial judge.

New legislation may pa v no attention ill the decision of 3D earlier court judgment.

dtal-Iorl

Verb Noun Adjective

"cite

apply

precede

persuasion

bind

3.3 Penny is. working with a trainee barrister. Complete her sentence» with appropriate words from the table above.

OVer 1-0 /10U :'Jll

Explain to a colleague from a different jurisdiction how cases are used and recorded in your lega I system.

To look at some recent UK case reports, ga ta: www.courtservice.gov.uk and www.lawreports.co.uk/.

Well, that decision of the A ppea I Court

is going to be 011 the case

\ve've gor at trial just now. j

2

\X1e need [0 be able to convince the ludge that rhe rule in Mea" u [\"I)el"15

IS , to this case.

Can you check [he case I think the year's wrong.

4

Should \VC add ro our argument that Edioards "/J Peel: is a.

precedent given the legal Issues, although the judge isn't hound to follow it?

ProfeSSional Englis-h In Use Law

13

I .-.

1-

14

The court system

Civil cou rts

Duncan Ritchie, a barrister, is talking to a visiting group of young European lawyers.

<Both cruninal and civil courts in England and \Xlales pruriarify hear evidence and nin: to determine whar exactly happened ill a case. Broadly speaking. the lower courts decide matters of fact and the upper courts TlOT11'laUy

deal with points of law. In England, simple civil actions, for example family matters such as undefended divorce, are normally heard in either the Magistr"tes' Courts or the County Courts.

~\ldge.s hav'C different tide~ depending on their ex~r\em:e, training, and level. A sin.gl..: stipendiary magistrate Or three lay magistrates sit in the Magistrates" Court. There's no

jury 111 1"1 Magistrates' Court. E:3.J11i'y cases may go on appeal hom the Magisrrares' Court

to the County Courts. The County Coun: nlso heat-s complex first instance civil cases,

.:iuch as conrract disputes, compensation claims, consumer complaint . s abour faulty goods

Or services, and bankruptcy cases. Claimants, previously referred to as plaintiffs, may seek

a legal remedy rOT some harm or injury they have suffered, There are circuit judges and recorders who su in the County COUrtS, usually without a jur y. juries are no .... "T fare in C1V)\ actions; so norn1ally the i udge considers both law and fact.

More complex civil cases, such as the adminisrranon of estates and actions for the recovery of "'"d, arc hea,d l\l the High CO\lrt of Justice, "'\l1th is di,ideci imo ,hree divisions- l-arruly Chancery and Queen's Bench. The court has 'horh original, that is,

first instance, and appellate jurisdiction. From the High Court cases may go On appeal

to the civil division of the Court of Appeal, which Gill reverse or uphold a decision of

(he lower courts. ITS decisions bind all the lower civil courts. Civil cases may leapfrog from the High Court to the House of Lords, bypassing rhe Court of Appeal, when points of law of general public importance me involved, Appellants muvt, however, apply for leave to appe.n. lJecls]ons of rue HOllse of Lords arc hlndlng on all other Courts btlt

not necessarily on itself. The court of the House of Lords consists of twelve life prers appointed from Judges and banisrers. Tl.e quorum, or .n.uimum number, of law lords for 8.11 appeal he3ring 15 normally rhree, but gcneraHy there is a sitting of five iudges.'

Note: A stipendiary is 8 full-time paid maqistrate who has qualified as a lawyer.

A lay magistrate is unpaid and is on established member of the IOC81 community.

A ci rcu it "a geoglc8phical division for legal purposes; England and Wales are divided into six. A recorder is a part-time judge with ten years standing as" barrister or solicitor.

See Unit 12 for more information about judges See B below for more information about juries

Criminal courts

'About 950/0 of all criminal cases in England and \'7ales are tried in the Magistrates' COUrtS, which deal with petty crimes, that is, less serious ones. In certain circumsrauces, the cocrt may cornrmt ;:1i1 accused person to "[he Crown Courr Ior more severe punisl.menr, either hy way of J_ fine or imprisonment. Except in cases of homicide, children under :14 and rotlng pcr'sons - that is, minors be-ween 14 and 17 years of age

- must always be tried summarily, meaning wirhcur ~l jury, by <1 Youth Court. A Youth Court is <1 branch of the !vb,_giscnHcs' Court. lndicrablc offences, that is, more serious ones such as theft, assault, drug dealing, and murder, are reserved for trial in rhe Crown Court. In almost all criminal caSES) the Stare, in the name of the Crown! prosecutes a person alleged to have comrnirrcd a crirn e. III Enghll1d and Wales, a Jury of twelve people decide, wherher rhe defendant i." guilty of the crime she or he is charged with, The Crown Court may hear cases in circuit areas. From the Crown C0l1rt1 appeal againsr conviction or sentence lies W the Criminal Division of the Court of Appeal. If leave ro appeal is granted hy rhar court, cases may go On appeal to the House of Lords.'

Professional English in Use Law

Appeals go from here to Family 13) .. Appe"l:; nUl}' leapfrog (rum hal' 10

1 The il). ..1 The Counrv Court I or

The COlin: of FeN (2) ..

4.2 Complete the table with words from A and B opposite and related forms. Put 8 Stress mark in front of the stressed syllabic in each word. The first one has been done for you.

Verb Noun - event Noun - person or action

'sit

rBitting

appeal

hear

try

claim

4.3 Match the two parts of the sentences and complete the gaps with words from the table a bove. Pay arrention ro rhe grarnmarical context. There is more than one possibility for three of the gaps.

The courts Can

An appellant must get

In a civil action, a.... . who

has suffered

4 Magistrates generally .. cases of petty crime as 5 Indictable offences are

a 8. court of first instance.

b normally in the Crown Court.

c reverse or uphold decisions of lower courts.

harm Dr in] ury seeks a remedy,

e leave to .. before taking a case (0

a higher court.

Professional Eng{j5h in Use Law

15

-

-

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16

Criminal justice and criminal proceedings

Duncan Ritchie; a barrister, IS talking to a visiting group of young European lawyers.

Criminal justice

';The state prosecutes those charged with ;:1 crime. The police investigate a crime and rnav apprehend suspects .md detain them in custody. If the police decide an offender should be prosecuted, .J file on the case is sent to '[he Crown Prosecution Service (CPS) - tbe nariona. prosecution service for f.nt;!and and \\7ales. The CPS must consider whether there is enough evidence for a realistic prospect of conviction, and if so, whether the public inrCITS[ requires a prosecunon. The}' can decide to either

go ahead wirh the prosecurion, send the G1Se hack to the police for a caution, or take 110 further action. Criminal pfoc\::cdings c<?l1 he ,nitiated e\ther b-y toe serving of a S\lt1.1tl10t\'5- setting our rhe offence and requiring [he accused co attend court, or! in [non: serious cases, by a warrant of arrest issued by a Magistrates' Courr, Lawvcr-. from the CPS rnav acr

,,~ public prosecutors. The Cri,;tinal Defence Service provides legal aid, which ft.,,;ds the services of an lndepcndent duty solicitor \.\I\)O represents the ;)ccu~ed )11 the. police ~tatlon and in courr. However, ar the end of a Crown Court case rhe judge has the power to order the defendant to pay some Of all of the defence COSts.'

Note: If Green is prosecuted for" crime, the ensuing trial Will be called the case of R v Green. R is the abbreviation for the Crown (Regino for a Queen or Rex for a King); v [Latin for versus) is said 'against' in a criminal case.

Categories of criminal offence

'There are duel' categories of criminal offence. Summary offences, tried with our :1 jury, are minor crimes only triable in the Magistrates' Court. Indictable offences are serious crimes, such as murder, which can onlv be heard in the Cro\'/11 Court. The formal document "ontain in)', 'he aUeged offence" s"pponed by be,s, i, called ,he indictment.

A c..1.SC which can be heard in either rhc Magisrrarcs' Court or (he Crown Court, sucb

as theft or burgh!")", is triable either way. IF the defendant pleads guilt)', rhc Magistrates' Court can either proceed to sentence or commit to the Crown Court for sentence, v vhere more "5C,'Cn: penalties are avaibble. If there is a not guihy plea, "[be court can decide "[he mode of trial. The person charged may request ;l trial by jur-y. If granrcd, such rrials cake place in the Crown Court.'

Note, indictahle offences are also known as notifiable offences in the UK.

Criminal court proceedings

'The English system of justice is adversarial, which means rhar each side collects anc. pH.':s-ent5 thl::'i.r o\vn e\;iJ.cncc. and a.ttacks [h.eir opponcm\; hI' c .. ()~s-e.x.amin·a\:.\on. In. a criminal trial, the burden of proof is 011 the prosecution to prove beyond rcasonah.e doubt that the accused is guilt)". A person accused or under arrest for an offence may

he gnulted bail and remporarilv released. However, bail may be refused, for example if there ore grounds for believing tnar the accused w01,Id fail to appear for trial or commit an offence. In the Crown Court, there may be a preparatory hearing for a complex

case before the jury is sworn in. Prior [0 rhe trial) there is a sraturory requirement for disclosure by the prosecution and defence of material relevant to rhe case, for example details of any alibis - people who can provide proof of the accused's whereabouts at the rime of the crime - or witnesses - people who rna)' have seen something relevenr ru [he crime. Once a rriat has begun, the defendant 010\· he advised hy counsel ro change his

01 her plea to glliky) ill expccrarion ofa reduced sentence. If, at the end of the trial, rhe court's verdict is not guiltr, then the lkfendant is acquitted.'

Professional Eng{ish in Use Law

3., ... , ... , ..

detain someone

5.1 Complete the definitions. Look at A and P, opposite to help lOU .

.. " - a coun document authorising the poJiCf' to

a written srarernenr with details of [he crimes someone 15 charged vvnh - a formal order to attend court

5.2 Make word combinarions from .A., Band C opposite using words from the box. Then usc appropriate word combinations to complete the sentences below,

criminal doubt sentence indictable

reasonable defence 'proceedings costs

severe reduced

pled realistic prospccr offences

guilty penalties

The Crown Prosecutor considers whether rheres sufficient evidence to provide a of con vrcnon,

nitre should be no conviction without proof beyond .. The Crown Court always hears ..

4 In senrencing serious crimes, courts can impose .

5 At the end of a rrial, a defendant rna;. be ordered to pay a contribution towards

such as mansla ughter,

5.3 Replace the underlined worrls and phrases with alccrourivc word, arid phrases from iI., n and C opposite. Pay attention to the gramlllJ.ticll context There is more than one possibilirv for one of the answers.

" Boil may be refused and the defendant mOl he (I J hel.d III police custody.

b Ahcu.auvelv, the defendant may be ("2) fmllld not g;uiln- hy the court and disch3rge::oJ

C Once proceedings have been initiated, the defendant (3) comes before the court,

d The police forrr.allv {41 "cellSe rhe ",speC( ill the police station.

e If the offender pleads guilty ill the Magistrates" Court, the court imposes a (5) punishment The polcr investigate " serious offence and

(6) arrest <:1 suspect

ThE suspect may ask fOl (7) rele<lse from CllstDdv before the trio I ..

5.4 Pur the .senrences in S.3 into the correct order chronologically. l.ook at A, Band C OPPOSI(E (Q help you. The first stage is [.

OVer -to IjOli ,~

Describe the process of a criminal trial in your legal system as if to a client from a different system.

For more information tin the UK Crown Prosecutmn Servlce, go to: www.cps.gov.ukl: fat the US Department of Justice, go to: www.usdoj.gov/.

Professional English in Use Law

17

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18

Civil procedure

Civil Procedure Ru!es

Alisdair Hannah. a barrister, is talk.ing EO a visiting group of young European lawyers.

~_t\l1 cases concerning gooJs1 property, debt repayment, breach of contract (with some exceptions such as insolvency proceedings and non-contentious Iirigarion), are SLlbJect tu Cnri~ Procedure RIlles. The Rub, which came into force in 1·999 in England and Wales, made radical changes to ci vil process in the County Court and the High Court.

The Judge performs the role of case manager. The court sets a urnetable for 1itigation~ with the parries being under an obligation to the court to adhere to times cales- which conrrol the progress of the Case. Procedure rules are supplemented bv detailed instructions made hy the [udge which support the rules, known as practice directions."

Proceeding with a claim

"/Vlosr claims are initiared oy the use of;" claim form, which functions as a summons.

The claim form can be used (or different types of claim, for example for specified or unspecified monetar-y sums, or for the claimant [0 ask the court to make an order. Once

C1 claim has been issued) J copy is served on) that is, delivered to) the defendant v v irh a response PJck .nvicing them to either admit (he claim, using a form of admission; or to defend it, using a form of defence. The respDnse pack also contains an acknowledgement of service form to confirm receipt of the claim) and 11 counterclaim form for the defendant to usc if rhey wish [0 claim aga.nsr the claunant, A defend~1nt rnusr respond within

14 days of service of the particulars of the claim, [f the defendant does not respond, iudgmcnr may be given in favour of the claimant. The defendant may be able to get a time extension for filing a reply on defence by using the parr of the acknowlcdgeme-u of service Iorrn which states an intention to defend the claim.

Cases are allocated to a regime or track by a procedural judge accorcing to their monetary value. Claims of £5,000 or 1,,'0 arc allocated to a small claims track while claims of up [0 £-151000 arc ailocared to a fast track. More complex claims with a grtatci value are allocated to a multi track regime. Fast track directions might include disclosure, where the claimant tells the defence of any relevant documenrv in their poss.ession.

This is followed by inspection, initiated by a written request by the claimant to look at relevant documents held by the defence, and an exchange of witness statements. The ll'auhi track regime is- intended to be. fl1.::xiblt' and docs not 11.ao,,;'[ a ::>[t1I"\d.ard -p['C)cedun.:.. ~n all regimes, parries are encouraged to settle their differences and for this purpose a stay

in proceedings, rhar is, J temporarv hair, 111ay he agreed. Case management conferences arc often conducted by telephone and give parries the opportunity to re-view the process and make decrsions. jf a defendant IS ordered to pOl' by " iudge and fails to do so, the claimant can enforce the iudgmenc in the Magistrates' Court.'

Note: The reforms to the Civil Procedure Rules led by Woolf in 1998 included the following changes in legal language:

claim form, formerly known as a writ of summons

specified, formerly known as a liquidated claim (a fixed mooetarv sum) claimant, formerly known as 3 plaintiff

Professional Engh'';ih in Use Law

6.1 Complere the definitions. Look at A and B opposite to help vou .

...................... - the process by which a daimant may look at written evidence held bv the defence

2 3

the document ill which the defendant makes <1 claim againsr the clairnanr

. - the dowment in which the defendant agrees co

rhe claim made by the claimant

4 - the document starring ;;1 claim proceedings

5. .. - the process by which the clnimanr is required to inform the defendant of

documents they hold relevant to the claim

6 - the document giving evidence by someone who saw or heard

sornething critical to [he Case

7 ~ the instructions given by a judge on how procedures should be

carried our in a else

6.2 Make word comhinarions from A and B opposite using a word from each box. Then use appropriate word cornbmanons and information in H opposite fa answer the questions below.

admit a rmetable
agree to a stay
allocate to a claim
enforce the process
file the judgment
is-sue J claim
review a claim on
serve a regime
set differences
settle a reply How does a claim proceeding starr?

2 \X/hat n1J.JS[ a defendant do when he or she has been served wirh a claim'

3 If both parties want rime to try to settle the dispute out of court, what should they ask the COurt to do?

4 \Xfh<1T is. the purpose of a case managcrr enr conference?

5 If a defendant is ordered to pay a claimant's costs bur docs nor, what action call the claimant rake?

Professional Engli'ih in Use Law

19

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.,

20

Tribunals

The status and range of tribunals

RaIprew 1r--43II1'!I'iN!lffi\ffl!ffiMlJii!fflliWJJ ..... «to

of an

us find U5

.itlsa4&15JfW; .... 1i for our . - 1 I

eve-sees cllenes

Tribunals in the UK

The system of courts in the United Kingdom is supplemented by a substantial number of tribunals, set up by Acts of Par-liament. They are described in the quidance given to gD\Jemment departments 'as",

"those bodies whose functions, [ike those of courts of law, are essentially judicial. Independently of the Executi .... e, they decide the rights and obligations of private citizens towards each other and towards a government department or public authority ."

Rcoon: of Council on Tribunals

The growth in the number and importance of tribunals is closely related to the development

increasingly active welFare state

with legislation covering areas previously considered private. Some examples are:

• Social Security Appeal Tribunal Employment Trihunal

• Mental Health Review Tribunal Immigration Appeal Tribunal Lands Tribunal

Some tribunals have a significant effect in the areas of law involved However, thev are nonetheless inferior to the co urts and their decisions are subject to judicial review - examination by a higher court of the decision-rnakinq process ill a lower court

Composition of tribunals arid procedure

A tribunal consists of three members. The chairperson is normally the only legal!y qualified member. The other two ar-e lav representatives who usually have special expertise in the area governed by the tribunal, gained from practical experience. The tribunal w[11 aso have all the usual administrative support enjoveo by a court: hearing clerks, who are responsible for administering procedures, clerical staff, and hearing accommodation.

The intention of tribunals was to provide a less forma~ pf'oteed}ng In wh\ch ctaimarrts cO\.l\d lodge claims and respondents defend clalrns. and ult.rnete.v resotvethelr disputes without the need for legal representation. However, procedures have become more complicated and ca ses brought before tribunals are often presented by solicitors and barristers. for example, a case of unfair dismissal - where an employer appears to not be act!rlg In a reasonable way in removing an employee - could be brought to an Employment Tribunal, Procedure at that Tribunal may include a stage where a governmen.t agency

tries to broker a settlement so that a claim may be withdrawn The costs of the hearing are borne by the public purse, that is, paid from tax revenue, but leqa' representation JS at the cost of each party. Witness statements are normally exchanged before the hearing and at the hearing both parties may question witnesses and address the Tribunal. The Tribunal can refer to decialon s of higher courts before making its decision in a specific

A tribunal in actio n

Professional Eng{jsh in Use Law

7.1 Complete this letter which a lawyer has written to his client about a case coming to an Employment Trihunal. Look ut R opposite to help you.

Woods & Pankhurst Solicitors 3 The Old Farge

West Cambourne

Carubs

CB67AB

J'vh n Johnson,

Wl,maging Director. Force Ltd

DeO:l.f Davi(l

Claim for Unfair Dismissal by A .• 1. Blackwood

Many thanks for your faxed letter of yesterday attaching the copy ET I in respect of the above. According 10 my records, For-ce Ltd have net had tin (I) claim ronde against it previously so 1 thought it WOuld be helpful if I gave you a brier omline or tile various stages ofthe procedure involved for you

to (2) ..... the claim

following receipt of the ETL the company. as (3) . has 2g clays to complete and rerum 1',;-

a defence On form ET3, The Tribunal will acknowledge receipt of tliis and will t-')n ... urd a copy to MlSS

I3I"ckwoo(1. the (4)"

The Tribunal appoints au officer of the (5) _ ...... ,... . . [he Arbitration Conciliation and Advisor)' Service I ACAS), to this case. He or she will get In touch with both YOll and Miss Blackwood roc the purpose of offering asxlsumce to broker a Seulemen. Agreement so th:ll the claim can be.lb) ..

Obviously, if this is- possible then Iht" costs of a Tribunal hearing will he saved. The costs of J. hearing are

(7'.. .-.'.'" the public purse. although obviously you will be responsible TOr this

finn s fees in representing you ifrequired

Usually the TribUnl&fJ\"lllO\~IS I\(/''"IS a nLlmbcdrc,;rj:~-et't·k\ s in WhjC~ to\ (8) ~ '11 L _ _.i '11\ I .r I \ ~

. .1m \1\ltSll 'j 1C1Pp-e'L\_ 3. . 11 C or 'te case to ~')C 1;;(I_f\_\ ~I.,.\_ t\\:. ·~n('inge\.l. ,,~, \\';'11 \ y~t en C Yc15 r'.'

been dcrcrnuned, the Tribunal will give both (9}.. .. a simple set of directions to prepare tor the

hearmg. 1 would normally expet:r to agree a bundle of' rclevarn documents with the nthcr side nne to exchange

written witness statements in advance ofthe hearing. .

At the hearing: witnesses will be asked to swear Or aflinn that the contents of their (10).

are true. Both parties and the: Tribunal will have the chance to ouestlcn the witnesses I~ __

Following that, Miss Blackwood and YOLE nn behalf of the corn puny (or your respective legal representatives)

may (11) the: Tribunal with an argument about why your evidence and case should be

nccepred. The Tribunal may a lso consider points almut the relevant lavv uL this point and possibly

(12) decisions made ar e higher level ofrhc Tribuna! system. such ns rhe

Pmploymenr Appeal Tribunal, the Court cfAppenl, the House of Lords. or even the European Court of Justice. bclorc reaching its decision.

I hope this is helpful to you_ Obviously, we will need [0 discuss in some detail the facts ofthe matter and the merit. Or otherwise. of rhe claim when We rneet (111 Friday I already have ,1 copy of' Miss Blackwood's contract so will make sure 1 have that to hand. 1100k forward 10 5e':'lllg you rhen.

Kind regards. Yours sincerely, P(.\\,1 ~ed:)f's Pmd Hedges

Parmer. \'v'oDd-:; & Pankhurst

OVer -ro ':fau .. 'jI

Describe how disputes between private citizens ate resolved in your legal system, What are some of the advantages and disadvantages of tribunals?

For information on UK tribunals, go to: www.councll-on-tribunals.qovuk/.

Profes.s.!onol Engb!>h in Us!'! Lnw

21

I ~ I

22

European Union law

us find us

The European Union (EU) was created in 1992 by the 'Treaty on European Union (the TEU), genel"a!ly called the Maastricht Treaty. The EU consists of three different Com rnu n mes the ECSC (European Coal and Steel Community), the European Cornrnunily (the EC, formerly known as the European Economic Community Treaty, or- the EEC treaty - also known as the l"n:::aty of Rome), ano EURATOM (European Atomic 'Crl-er-gy CommllrJity Treaty). The: EU has what are referred to as ~the three plllars:

lbe European Union

r- ECSC--- ~-"-}

l~7RAT~~~c~r!"."J

Justice and Home AHairs Policy

L....,.. ... ~,.,...,~~.~.~ ... ,,~.~.

I·~--~··~--···~-,

I Common Foreign and i security Policy r

.~1

Put simply, the original aim of the Community was economic integration: to create a common market, later defined as a Single Internal Marketr In which there could be free movement of goods, persons. services ar.,j (;ap~ta'. lh)s was. to be acnie1Jed by t'ne creation of a free trade ar-ea, where Member States agreed to remove al~ customs duties (import taxes) and quotas (restrjctlcns on the amount of goods Imported across Member- States' frontiers. Or borders) between themselves/ and a customs union,

In which all members agreed to Impoae on goods comlnq into the: area from non-rnerr cer states a common level of duty (the Common CU5tom5 ·Tariff, or CCTl.

The three sources of EU law are the Treat.es (EC, TEU, etc.), secondary legislation enacted by the EC (such as regulations and dir-ectjves l, and general principles, lndudir.g fundamental human ri.ghtsi. subsfdlerttv, and citizenship of the EU for every national of a Member State.

Note: subsidiarity ~ the Community may only take legal action where it has exclusive competence, that is. power to govern. and where an action cannot be achieved by member states acting within lIlti! natm~1 institutions, for e~3mp\e a trsns-nanonat action

How dots the EU impact on Member States?

The EC Treaty is directly applicable in every Member State. Accession to {membership of) the Cam.munlty limits, the power of natlcr al govemrnents end affects national sovereignty - the power to govern. Community law has supremacy over, that is. overrioes, nanona: taw. Ttus supremacy was established in the case of Coste v ENEl (Case 6(64) ECR 545. The Single European Act 1986 made provisions (legal conditions) creating an ob-ligation on the Community to take the necessary measures' to achieve the Internal Market. Under Article 249 (ex Art 139) t~"'re ,Ir", five type,. of legal act which t~e· Community may use:

-~ - ~------ ------'"

Regulations - have general application and are btnding in their entirety on a'l Member States and nave direct effect, meaninq they automatically become law in Member Stares

Directives - are blndlnq on Member States as to 'i:heir res LIlt but do not bmd Indivlouals u nti r they have been tra nsposed tnto nauonai law (Implemented)

Decisions of the European Court of Justice (ECJ) - are binding on those to whom they are addressed.

• Recommendations and opinions - have no bindtng, force. but may be p.e.rsuasive, that is, have influence.

Pmfe.ssional English in Use Law

8.1 Find Bve phrases in A opposite used to indicate that a term has another name. for example 'formerly known as'. Then use appropriare phrases to complete '[he sentences below. There is more [han one possibility for one of the answers.

1 Under EC law, anyrhing which can be bought Or sold is. c ••••••••••••••••••••••••• goods.

2 Beijing was Peking ill the Wes r,

3 Customs oury is any charge that is unposed on goods because

theY8reimported.

4 The third pillar of the European Union,

and Home Affairs pillar, is incorporated into the EC trcatv.

8.2 Rearrange the underlined letters to make word, in [he extracts below. Look at A and Il opposite ro help you.

The (1) laennirt market shall comprise an area without internal (2) stenroirf in which the (3) reef (4) vemmnote of goods, persons, (5) essricev and capital is ensured in accordance with the (6) noopssivir of this (7) yetrat.

'from Article 7a. the Single European Acr'1986

,1~~~~~~I;;opr:;:~;:::::~~;~~~;:~~~,'~"

to ensure fulfilment of the (10) looglisnabi arising out of this Treaty or resulting from an action taken by the institutions of the (11) t'lmmouncy. They shall facilitate achievement of the Community's tasks.

from Article 5, the fC Treatv

A (12) ule!;;l1otair shall have general (13) pintclapoia, It shall be binding in irs (14) ~ and direcrly (15) capbd!pia in all Member States.

A. (16) vetcnlde shall be binding, as to rhe result to be achieved, upon each (17) beennm Stare to which It is addressed, but shall leave to the national authorities the choice of form and methods.

from Article 189, the Treaty of ROlne

8.3 Are the following statements true Or false? Find reasons for your answer, in A and B opposite.

1 Member states are required to incorporate EUropean legislation into national law and [0 recognise the }uri::.diction of the European Court of Just~ce in H.w.tter5 of EU taw.

2 The nanonal legislation of Member States. takes precedence over Community rules.

3 The Common Customs Tariff applies to all good, imported by CO untries Eke Japan and the USA from the ED.

4 EU Jaw prevents Member STones from charging importers for bringing goods inro that Stare from another Member Stare.

oar +0 /i0tl

How has membership of the EU affected a jurisdiction you arc familiar with?

for access to European Union legislation. including Treaties and case law [for example. Costa v ENEL). go to EUR-Lex at: http://cur~lex.europa.eulenlindex.htm

Profes5iana! EngliSh m Us-e law

the justice

23

:.-

Solicitors

Lega! practitioners

Lawyers in the United Kingdom iunsdicrions genernll« practise as solicitors in private firms, as legal advisers in corpor.irions, government departments, and advice agencies, Or a, harristct-s (see Unit 1O)~ They can each do advocacy, draft legal documents and give written advice, but solicitors, unlike barrisrers, cannot appear In every court.

Traditionally, solicirors undertake work such as conveyancing (see Unit 40), and drawing up contract'; (seeUnits 31-4.1) and wills. Bart"lsrers spend more time in court and have

a right of audience In die higher courts. Unlike solicitors, barristers cannot usually be employed dirccdv by clients but arc instructed by solicitors. Solicitors normally form partnerships with other sohcirors and work in offices with support staff. 'The qualifica-irm and pr acti cc of solicitors are regula ted by the La w Society.

_ Training

Sarni, a 2.5 ycar-od graduate, is ralking about his experience as a tri-lin ee.

'My first degree was in engineenng at ManchesteUniversity. Then I did two one-year Jaw courses, The first led to 1;:he Con1nlQn Profesxional Fxaminatiou, or CPE;

the second WJS the Legal Practice Course. 1 had a vacation placement at Applewood Branston, who offered me " two-year trameeship. They have a six scar system, which

is quite cnrnrnon. Trainees spend tirne arrachcd IU different 1(1';\1 deparrmcnts, which suits me as I get a basic grounding in the main departments of the tirm, helping me find

which area of the lavv I'd like to specialise ill. I can work

in funr or 1110re different areas of law for' four months

at u time and then dccicc on a specialism later in the training contract. In my rhird sear, in C:orporme Finance, I've learnt a lOT from being on sccondrnenr with 8. client and got excellent back up from my scar su pervisof1 rhar

is, supervising partner- lr was good to pur the professional skills training it-to practice straight away.'

I ~ I

24

A partner in a law firm

Helene, h-um 1\1011,1(Ol is. all avocat admitted to the Paris Bar

- the professional association for lawyer,. She graduated with" Bachelor of Law ILLB) in PariS "ad obtained a Master's Degree ILLM) in European Law frolll University College, London. She is ~1 graduate of the Paris lnsritur dEtudes Pohriques.

"1 joined Applewood P"r<lTlstoIl two ),C';HS ago and was promoted to partner in rhe corporate and banking team

in Paris. Before that 1 worked for twelve years for other

leading inrernemona] law firms. ['VI.' gor extensive experience

of privarisations, mergers and acquisitions, arid j. advise investment banks ancl corporales.'

Professional EnglIsh in Use Law

9~ 1 A potentia] Polish client is talking to an English solicitor. Comp1ere the sohciror's starcrncnrs ('1-.1). Look ar A opposite to help you. There is more than one posslhillt) for one of the answers.

I'm looking for <1 lawyer to help me buy some land fa r a business.

We've had some [rouble in the past with getting large invoices paid.

2

Nly linn undertakes n lot of ..

We could advise you and help [()

have

T If your case goes co court, we

........................ .md I

. _, __ in the lower Courts.

Gill.

3

No, I'm a . . bu t rn yhnn would instruct a

.......... if J. case were to go to rhe Appeal Court.

Call you appear in the A ppcal Court?

9.2 Complete the table with words from A, B ~H1d C opposite and related forms. Put a stress mark in front of the stressed syl1~ble in e~lCh worci. The first one h~s beeTl done for you.

Ve rb Noun Nou 11 - perso n

advise

pracnce

'ps.rrner

rraincr

'partner

'p.8rtner0hfp

9.3 Ana Garcia is talking about ber career. Complete what she says with words from the [able above and B a-id C opposite. There is more thar; One possibiliry for one of the answers.

specialise

OVer -ro ~Otl.

ml .~

I'm an ahngada) a lawyer in Spmn. I obtained my

lai,.\, \ '1} }II R,nce\on:a. In the summers,

as a srurlenr, I did .J: vacation (2} ill

my lmde's law (3) . I (41 .

from university six years ago. Because my English and

French are good I gDt 0 IS) . to the ;';ew

York office of my firm. \X'hlie I was there [ was

(61. by [he mergers and acquisitions ream>

I've always enjoyed workJng with kHge companies so

now I wanr ro (71 in (~I.

Write or talk to someone about your experience of legal education and traininq.

For infcrmation on the work of solicitors and links to other international professional organisations, go to: www.lawsodcty.org.uk!IHll11e.law and the International Bar Associatiun: www.iballet.org!.

Professional Eng/J·sh in Use Law

25

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26

Barristers

Organisation

Sylvia Garrison, a pracnsing barrister; is describing the training and organisation of the profession.

'There ore currently around 9,000 barrisrers in practice tn England and \X'ales. Unlike solicitors, barristers can't form partnerships but must act as sole traders with unlimited liability. Some barristers <lee in employed practice and mol' only rep.n:~sellt their employer, for example as in-house counselor in government departments like the Crown Prosecution Service . Manv work independently in self-employed practice in groups called chambers Or sets and practise at the Bar as a barrister. Chamber> are traditionally located in the lour Inns of Court in London

- Gray's Inn, Lincoln's Inn, Middle Temple, and Inner Temple - arid arc a150 located in the UK regions, known as circuits. The Inns are principally non-academic societies which provide collegiate and educational resources for barristers and trainees. Members of chambers,

known C1S tenants, share corurncn expenses and SUppC.H"t services, which are administered by an administrative rnarager known as- the Clerk, 8:1ong with ancilbry xraff such as. secretaries.

A barrister's main work is to provide representation in the courts, where they are referred

to as counsel, ro draft documents associated with court procedure, .and to give opinions,

that is, specialjst legal advice. They are normallv instructed by solicitors Or other recognised professionals, such as patent "gems or Legal Advice Centres, On behalf of lay clients. As the law has become more complex, barristers mcrcasingly specialise in partic-ular areas, such as personal injury, crime, family or comruerciai law, A number of Specialist Bar Associations,

also known as SBAs, supporr and represent members. Barristers are governed hy t11C

General Council of the t\ar, known as tile Bar Council, and the Inns of Court.'

ByE' chamberlset; ScotE: stobie

BrE: hanister: SeotE: advocate; AmE: trial lawyer / appellate attorr ev

Training and qualifications of practising barristers

'Intending barristers need a qualifvmg law degree, for example "Bachelor of Laws,

also known as an LLB> However, many stt.dents ~radltatc in a non-law. subject and undertake <1 one year conversion ~cnurs~ known ;]; .• 1 postgraduate Diploma in Law, or GDL. The srurlenr barrister then applies ro loin one of the Inns of Cou-r to study for the Bar Vocational Course, or Bye. It's also mandatnry for students to keep terms, which me,111S dining at their Inn a fixed number oi times, before they Can be called to the Bar, char is, qualify as a barrister. Then (he new barrister faces intense competition to obtain

a funded pupillage in chambers fur twelve months in order to gee practical training. All applicants are advised firsf to do a mini-pupillage of one or two weeks ro get sornc .insight into what being a pupil is like. Pupillage, known as devillin!\ in Scotland, is divided into two parts - it non-practising SlX months w-hen pupils shadow their pupil master, an experienced barrister, by observing professional activities, and the second, practising six months when pupils, with their supervisor's. permission, can undertake to supply legal services and exercise rights of audience, in other words, speak in court. To gain ~1 Fuji Q\l<1lihcati()n Cenifica\e pupils ron" leam \t.o rub of condcKt and ~tiquette at th~ Bar, learn to prepare and present a case competently) learn to draft pleadings and opinions, have advocacy training, and pass a forensic accountancy course which covers the use

of financial informarion In litigation. If successful at the end of [he twelve monrhs, the qualified barrister applies for a tenancy in chambers. \ii'hen a junior barrister I"" practised at the Bar for 10 to 15 years, it's possible to apply to become a senior barrister, or Queen's Counsel (QC), whose work concentrates on court appearances, advocacy, and opinions.'

ProfessioMI English in Use Low

, 0.1 Match the two parts of the definitions. Look at A opposite to help YOLI.

Someone who works for his or herself is

2 If YOLI spea k on behalf of cl ienrs in courr, you 3 Non-professional clients are known as

4 Ban-isters working soldy for a company arc called 5 The governing authorities of bar-isrer-, are

6 When a sohciror gives a barrister the

details of a case, rhc bar-rister is

7 When you work as a barrlstcr you

a provide representation. b lay d ients.

c self-employed I a sole trader; d instructed.

e in-house counsel. practise at the Bar.

9 the Bar Council and the Inns of Coun.

10.2 Complete the extracts from a trainee barrister describing her professional life. Look at A and B opposite to help you. There is more than one po:ssihiliry for two of the answers

I took a first degree in Modern History, then did [he

(1) ., ... , ... , ... , ... , ... , ... , ... ,.. in law Jt City UniVn$1tYl

which was much harder" I then did [he

(2) . . .. at the Inns

of Court School of La w.

Most days I'd expect to be present in (3) from

abour 8.45 am ro 7,00 pm, working almost throughout in

my (4).. . ,'s r00111. During that rime

I (5) .. . .... his professional life completely.

I generally look at papers when they first come ill. 1'111 expected to be a hie to suggest how the case III ight he

approacbed, In a week I might draft a (6) .

prepare notes for a conference with clients, common- on draft witness starernenrs, and research legal points.

Although all (7) twelve months, if they think you have 110 prospect of finding 3 (8)

in the chambers, after six months you would be told discreetly.

Chambers runs (9) .

training evenings [(J reduce the loss of opportunity to (.10) .

111 court.

WhenI've practised for more then ten years, I'd be interested in being appointed

as" (11). . with

a specialist area such as employment law.

OVe.r "'0 /10U ~

Explain the organisation of your profession as if you were speaking to a fellow legal practitioner.

for more information on ba rrtsters, go to the Bar Cnunci I: www.barcounciI.org.uk/.

Pro(e5sion(l1 English in Use Law

27

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Working lives

A company commercial lawyer

Sophie Brenk is talking about her work at Melton Deans.

')'01 a partner in a medium-sized regional law firm, working wirlun the Company Commercial Department. I head up a ream oi eight, comprising six hl\v)'ers and two paralegals - legal researchers - undertaking projects wurk for Public Sector clients. Our main client is a Government Department. \Ve're instructed by them to advise and ncr on Private Finance Initiative Projects, also known as the Pl I. This involves negotiating with ::t number of other parries comprising the hinders, tlu- huilding contractors, and facilities management and ensuring that the client's airns and objectives are met <lnd their best interests protected+

A significant proportion of Illy tune is spent in all parties meetings. As these transactions are complex, and the rneerings are attended by all sides and their leg,,1 advisers, I have to make sure comprehensive notes are taker; by an assistant solicitor, Following a meeting, documents

reflecting the terms "greed are prepared '------'

and circulated for approval.

Within the practice, I'm a member of rhc Execurive Couimirree and have responsibility for aspects of financial management within rhc dep~1fm1cnr. r also deal with recruitment, trainiug, and ckve\opment within the department. During a working day as a fee earner,

I have to combine my chargeable work

for chenrs with administrative duties.' An JII parties mcctinc

A legal secretary

An assistant solicitor is instructing Mar-ie l.aporaire, rhe Commercial Deparrmenr's legal secretary:

Solicitor: I've just sent you some sound files with the minutes on from yesrerday'S meeting, is there any way you can type those up before anything else? I know you've gO'l a su.bstal\ti-a~ amount of work at the rnOm<..'nt

Marie: No problem. Do you \\,'aTH me to circulate them by email as soon as I've finished, get a hard copy and put it on the file?

Solicitor: Please. I'm going to be running between meetings for a large part of the Jay but if I ger a minure, ]'II have a quick look at rhe hard copy and mark it up with any changes, Don't wait for me to do that before gctring the draft out - there are action points rhar the paralegals need to be getting on with.

Marie: fine, T'll copy everyone in. A.llytbing else? l've puc all the clocu-nenraricn for Project Angej on your desk. J don't know if it's ready to go our yet?

Solicitor: I 5~\V char, thanks. No, 1 need ro make sure rhar the client is h3PPY with the latest clauses the lunder wanrs, Alsu, I thmk they may have negotiated more concessions so rn hu ve to get back [0 you all [hose.

Mane: OK~ By the way, I think your out of office message is still nn, although the date's wrong. Dou'r worry, I'll change ir. Your calls are still coming through to Illy phone so I'll carryon taking messages.

Professional Enghsh in U;e Law

11.1 Make word combinations fr orn A opposite using words from the box. Then use appropriateword combinations to complete Sophie Brertle's sentences below.

fee chargeable

terms notes

interests meeting

besr

all parries

work earner

co.nprehensive agreed

1 don't think we can accept thar

clause. It's not in [be .

........................... Df the client.

2

Marie, GIn yOll gD ahead and ser up the next ..

\\le need ever yrme to be there,

Will YOli check the . .

match the notes taken from the meeting with [he contracrors and client?

4

\"!i;re can't spend any 1110re time on this. It's: not ..

11.2 Find three expressions ill A and B oppos.rewhich Can he used in the combinations. below to meal) 'a lot of.

my time / my week I my wo-kluad

11.3 Mane Lapotaire is talking about her workll1g dav. Replace the underlined words and phrases with alternative words and phrases from B opposite. Pay attention to the grammarical context. There 15 more than one possioility for one of the answers,

In addition to ryping up 11) recorded noce, £r0111 meetings) (2) senJin~ a CDpV to everyone hv email) and (3) printing off ernails, most days I'll be given v .. arious other tasks to C~HTy out, such ;10.; document gencruciou. If the solicitor

(4) indICate, change, on a draft text, I'll (5) word process them. I sometimes ha ve to get addresses and contact derails. Irom the Internet and make appointments for meetings or conference calis Obviously, I also take incoming calls when the

fee earners aren't available and I let the callel know the solicitor w!l116) call them luck I'll also (7) continue with any other tasks she's given me. Once a month I attend the secretarial COIiunittet:: as the representarive for my department.

OVer 1-0 e= .r,

What is your funetinr; within your orqanisation? Talk about your responsibilities and a typical working day or week.

For information on the work of solicitors in specific law firms in the UK. go to: www.venables.co.uk/.

Pro(e5siooo/ English if! Use Law

29

Judges

_ Judicial appointments In England and Wales

Lords of Appeal in Ordinary (also known as Law Lords)

Judicial Office Court (see Unit 4) Number

12

House of l.ords

High Court Judges

107

Lord Justices of Appeal

Cmwt of Appea\

3/

High COll rt of justice

Circuit Judges

Crown Court and CULIn ty Court

6.3B

Recorders

Crown Court and County Court

1359

Co unry COLI rr

751

District Judges (Civil)

COUll ry Co urt

422

Deputy District Judges lC'lvill

District Judges (also known O1S Stipendiary Magistrates)

Deputy District J udgcs

Magi.,rrates' Court

139

Magistrates' Court

Note: Reeorde" generally hear less complex or serious cases than Circuit Judges and start by sitting In the Crown Court. After two years they might sn 'In tlit County Court

Number of judges Ided in above table correct as of 27jll/0G. See wwwjuciciarvqovuk/,

An Act of Parliament lays down the mandatory requirements for most judicial offices. Candidates must have practised as a lawyer Or jL-ldge for <1 specified time and must meet other statutory requIrelnents for specific POSt.". The hicrarcnica] structure of the courts informs the process of selection to the Judiciary. Experience gained as a judge in a lower court is one of

[he quaiificanons for appoin nnenr to ;1 higher court. Scnror appomrments to the Court of Appeal and the High Court are made by the Queen following the recommendation of the Prime Minister, currently 011 the advice of the Lord Chenccllor > a senior member of the govemmeot and he~d of the )\ldicial SYStC\ll.

1-

The training of judges

Tile JudiCIal Studies Boar,\ USB) is responsible for tbe <raining Of judges, by rnagisrrarcs, and members of Trihnnals III England and Wales. The .JSB would normally organise rhe following for an appointee Recorder ill the Crown Conn; an induction course; visits to p\;.:nal. establish[llel1_ts~ for exanlp-k prison and yO\lng offender i"li.-st~m'i:\ons-; nl-eel:ings \.·l~th personnel from the Probation Service, which deals with criminals, often young offenders, who are not sent TO prison unless they :reoff.end, but who are under the supervision of a probation 0 tficer.

The appointee would experience ~l period of sitting in on the Bench - rhe judge's area

of the COlin - with a Circuit judge. In hIS first week after appointment he would be S\JiY2:f',,;ised by ;:\ Circuit Judg;e. Pr',:v..:tlcal guid.elines f.oriudg.~':'l 'are set. Cl-ut \(1 Bench Books.

_ Civil courts: sentencing and court orders

Jllclges in civil courts call fine, commit to imprisonment \normal\y between 2g days and six months) Or g.ive .a suspended sentence - where irnprisonruent does not take place unless the offender rommirs a-tuther offence. An applicant can 'leek an injunction - an order - against a re-spnndellt. The Court nvay grant an interim i.nlu1\ct1on, tr.at \5, a t.tn .... po-rary one, to stop tl«. defendant from doing something before the hearing of the application. The ludge can grant or refuse an injunction against a legal person to do or not do specified acts. The judge can, .ilrernativcly, require an undertaking, or promise, from the relevant party at the hearing proceeding.s.

30

Professional English In Use law

12.1 Match the judicial offices in the bux with the required qualifications below 11-4), Bear ill mind the hier achica. structure of the courts. Look <It A opposire to help you.

Lord of Appeal in Ordinary Circuit Judge

Lord Justice of Appeal

District Judge (Magistrates' Court)

1 must have been qualified as a lawyer for at least SeVETl years

2 must have been qualified for ten years, although three years' service as a full-time District Judge is allowed

3 must have been qualified as <1 lawyer for at least "I5 years and is usually drawn from judges ill the Courts of Appeal in England, Wales. and Northern Ireland, and in the Court of Session in Scotland

4 [he sramrcry qualification is at least ten year s in the High Court as 3 lawyer and, in practice, to be a High COUIt Judge

12.2 Complete the definitions. Look ar A and B opposite to help you .

........................ - collective word for a group of judges and the name of the place

2

3 .

where a judge sits in court

........................... - formal collective word for all the judges in the legal system ......................... - the specific pOSt of a judge (for example, a High

Court Judge) 4.

an offence.

.............................. - place where people arc held as a punishment when convicted of

12.3 Complete the sentences. Look at C opposite to help you,

Judges may make a first sentence for

a non-serious offence a .. ,. .

sentence.

2 The period of awarded

by the judge should reflect the numher and seriousnesx of the offences and their context.

A person who seeks an inj unction is generally described as the

4 Instead of ordering a specific act, the court can seek the agreement of the

relevant parry to an to

do the specified act.

An applicant may seek an to prevent 9. breach of contract.

6 If an applicant claims that the defendant is ubour to do something that infr.nges his/her Tights before there call be a hearing (for examp!e, to dispose of disputed propenyl, the. judge may grant an

OVU' "'0 '101.1 .~

Describe the appointment and training of judges in your legal system. What powers of sentencing do j lIdges have?

for more information on judges in the UK. go to: www.jsboard.co.ukf. www.dca.gov.uk/judiciaJ/ and www_judiciary_gov.ukf_

Professiorml Eng{ish h. Use law

31

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A law firm's structure and practice

A law firm's structure and practice

Anchor Robbins, a large UK law firm, is submitting" tender for the provision of legal services to a. local author itv. In the first section of the tender document, the finn's structure and breadth or expertise is set out. Typically) descriptions or [aw flrrns' practice areas and expertise are in srronglv positive language.

1 ANCHOR ROBS INS '.RESOURCES 4ND EXPERTISE l.l General Details

Personnel

282 personnel including 3~ partners, 62 solicitors, 12 other lawyers, 14 legal executives, and 10 trainee solicitors, in addition to clerical, secretarial, and support staff

Structure

We have three specialist areas:

Commercial Property incorporares Public Seeler, Construction. Planning and Environment Company Commercial comprises Banking, Project Finance, Procurement, Empleyrnent and Pensions.

Private Client offers Wills, Trusts and Probate, Tax Planning, and Residential Conveyancing.

.Dedicared specialist dispute resolution services are provided wi thin each of the tespecnve areas.

Services

We provide all the services you require. The head of'our Projects team, Jan Stephenson, willlead the team providing legal services to you.

1.2 Proje!J'sional1nd4!lIl1lity Insurance

W. have provided full derail» of our current prefesslenat inde.m.nity cover. in our PreQualification Questionnaire GPPQ). The terms of our cover are reviewed annually

1.3 Resources and Speciati .. r Knowtedg» Expensse (md Structure:

Each of our departments contains specialist partner-led teams ensuring [bat WI!' are able to resource high quality specialist knowledge and provide a comprehensive service to our clients Further details of our Projects Team arc set out at (3) below.

Commitment:

We are commined -to anticipating our client s • needs and meeting them. Fundamental to this is the commitment of each team leader 1"0 understand thoroughly !he priorities and. business of our clients.

Information Technology:

We have made .:significant investment ill our information technology sy-stems in order to give the support and resources That Our lawyers need. Our systems enable us fotransfer know-bow into a searchable database using links to cases and legislation, 1D monitor- workloads, measure outputs, and plan ahead more effectively. The srabiliry and security of our system is of particular importance to our clients and to us.

Projects atAnchor Rohl>i!ls·

The Projects team is headed up by Jan Stephenson and brings together specialists in infrastructure, construction, energy; planning, and public sector. The team are a ble to draw on relevant expertise from elsewhere in the firm when required and have exclusive access to a dedicated Professional Support Lawyer.

The team have had extensive experience in handling PFr (private Finance Initianve) since its very beginning and have been invulved in a considerable I<.U1.ge of acccmmcdation projects including schools, hospitals, courts. and light rail projects,

Note: legal executives are qualified to assist solicitors but do not practise as solicitors procurement - procedures, which may include use of a PPG, by which public aut-iorities award contracts for the prQv,siol1 of puhlic works, supplies, and services in accordance With rules and regulations.

Private Finance Initiative (PFlj - collaboration between government and private sector companies tn fund and develop major public infrastructure surh as roads, schools, and hospitals.

Professional English in Use Law

13.1 Complete [he sentences with verbs from A opposite. P<lY nrrcntion to the grammarica l context.

There is more than one pos,sibili[y for all of (he answers.

The company a wide range of services to inrcrnnnonnl corporate clients.

Rattigan's employment practice ,. ,._,. six partners, 14 associates and 11 other legal

and support stolfi

3 Ow· outstancing comrnercial lirigarion practice area , , insurance and reinsurance

litigation) securities and commodities disputes: partnership law, bankruptcy, and business torrs,

4 Our finance department lawyers who excelin cross-border transactions.

5 Our cxp~ril';~Ked mCl:gt:rs and a'Cqu151t~01\S tean1 1:' .. i\1igud Orti£~

who graduated 11) law ar the Unlver~l['y Cornplutense in Madrid and gained his LLi\'1 from ESADE.

13.2 Find verbs in A opposite [hat can be used to make word combinations with the phr3St;:S in the box. More 'than one verb may sometimes be possible. Then usc appropriJtt\vorci-combin;uions to complete rhe sentences below. Pay artenrion to the grammatical context.

reicvan t expertise

a comprehensive service

exclusive access extensive experience significant investmcu- specialist kn()\vkdge

The Lirigation team inrcmarional disputes. Our firm has

enabling staff to access 811 extensive dsrabase. 3 Clients arc able to ..

................. in handling complex

in knowledge management systems)

.. ..... from dedicated

teams ill each pr3_Ctlce area.

4 Due [0 the expertise of our staff we can . ,. III

commercial litigation .in a number of jurisdictions.

5 \VJe can ..... to domestic and

multinational clients, with particular expertise in corporate and finance.

13.3 Complete the definitions. Look at A opposite to help you .

1 2

.... - staff

...... - put in a formal proposal to wir; a conrract wirh

an estimate of the COS(

3 - insurance to protect your business against

compensation sought bv a client for harm or damage caused bv mistake or negligence hy an employee of you!' firm

4 5.

- move specialist knowledge ....................... - evaluate work done

prores~i(}nrJ! Eng{ish in Use Law

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Client care procedures

Explaining client care procedures

Greg Spenser is a SDuth African lawyer raking part in an exchange programme with Bridgeman Hanks) a sister finn in London. During

h is first week, John Coleman, the partner supervising him,

is explaining the tirms client care procedures.

'One of the first things you'll need to do on any new matter is a client care letter. As most of

the clients you will be acting for will be existing corporate clients, you won't need CO carry out any identification procedures, although you should be aware of them. They're' all sec out in the office manual, in the risk management section

A client care letter should refer to the matter on which you arc instructed to act and should set Out [he basic a.rns and the agreed target tirnescalc, such as there is. In the letter YOll musr inform the client of who will be undertaking work for them and give the name of the person with overall responsibility for c-onduct of rhe matter, ln fact, the letters are normally prepared as if they're from that person. \'iie also inform clients that we have

a partner who they call contact In the event that they have a complaint which they fed cannot he dealt with by the person supervising the file, although obviously we hope that that eventuality will not arise.

The letter should provide a fee estimate for work by sroff and should also give the deTail, of any anticipated disbursements, such as Court fees, search fees, and other costs. If it isn't possible to give a quote at the outset, (1'1" start, of a tnattcr Y()U may~ for example, suggest (hat you obtain their approval bdaTe lllH_h_.rwking any worlc in excess- of an agreed limit. You must agree to provide an estimate at the earliest opportunity and in the meantime let the clienr know what costs art' being incurred.

There are precedent letters in the department manual. that you can access via the lurraner. l would refer to (hose rather than the hard copies, as they're updated regularly on the system. Your secretary should be familiar with the letters so you need only give her the information specific to this matter in order for her [0 prepare the first draft.

As a fum we're I.excel compliant. BasiGllly rhis means ViC conform to a standard approved by Lexcel and have incorporated their requirements into OUI systems, including (hose for file management: As well as giving quality assurance to our clients, our accreditation dOES make a difference ro our indemnity insurance premium, As far as the insurers arc concerned, the risk of a claim is lessened by the fact that we can de-nonsrrate to an external auditor that we have effective risk managcmen t procedures in place.'

Note: identification procedures - regulations controlling identity checks on clients (see Unit 15) Lexcel compliant - indicates that a firm has the practice manaaemen: quality mark of the Law Society (England and Wales! To find out about l.excel, go to' www.lawsocitly.org.uklprofession"llpracticesupportll excel. I oW

Professianal English in Use Law

14.1 Complete the definirions. l.ook ar A opposite to help vou, There is more than One possibilir\, [or one of the a nswers.

1 2

. ..... ,. _ a handbook of rnsr.rllcriulls in your place of work - models of standard correspondence

- costs to be charged to the chenr

.......................... , , .. , , , .. _ fee for protection against compcns~lrion awards.

4

for damages

..... _ nutside assessor who checks procedures comply with srandards

14.2

and regularions

Match the highlighted clanses in this extract from ,l chenr ca re precedent lerrcr (a-f) with the instructions for writing 11 client care precedent letter given by [he supervising partner 1Il A oppusite. The fir~t one has been done for vou.

Dear [ [ReF:

{J)I refer to [ ] when you confirmed our instructions to act for you. in this matter; J will be

pleased to do so on your behalf.

1 INSTRUCTIONS

1 .1 Your instructions arc [ to 1.2 This w.ill involve :-

[list issues, advice, aaion to be taken as set. out in the file lIore on client]

TIMESCALE

2.1 (h)The likely timescale of this transaction is [ PERSONN.EL

3.! (C)l will deal with this matter personally nnd 1 am a solicitor with the firm,

(d)John Coleman will be the partner with overall responsibility for supervlsion of the matter; ·W for any reason ~ am un<JVal1Bb\e p\easc ask for my secretary, A,da Mui)oz,.

4 COSTS

4..1 (e)ln a matter such as this it is difficult to estimate the probable total charges as this.depends on a

... U!itog.'\l.fW;l~r&JjbtRl'IlJt'1.'drlN'611\.JC'f[),'s'i'hl!'cQ"ndl~'i<:rtb~';J;;;(;;d~~W~h,;;,~";h~rclb::;;-;";ed";~~"'

] will monitor OUT charges and when costs reach £[ ] plus VAT and disbursements. no further work

will be done without' your prior consent.

(_fj As soon as rt becomes practicable to do so) I will provide you with an estimate as to the Iikcly total charges and expenses.

In .a client care letter you should.

(a) - .. mferrothe rnatter on which you are in~tructod to act

14.3 There are many way' of using \\S' in English ~"d it occurs frec]uemly in legal rexts. It Can function <IS ;1 preposition, ;JS a conjunction, and it Can introduce ;.1 subordinate clause. March rhe underlined examples from A opposire (1-5) with the appropriate synonym for irs use in the text (a-f).

A> most of the clients YOLI will he acting for will he ... 2 .. ' letters arc normally prepared as if they're from ... 3 fls a fum were Lexce) cornplianr .. ,

4 As well ,IS giving quality assurance to our clients ... S .. ' as far ~lS the insurers are concerned, the risk .

a in addition to

b from the perspective of c because

d on the basis that

c in the context of being

OVe.r +0 tjOtl ."

Talk or write about the client care procedures you are familiar with as if to a colleague working for another firm. Describe your experience of professional quality assurance schemes.

Professional EngliO;_h in Use Lew-'

35

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15

Money laundering procedures

1---.·' .

,~ Money laundering procedures

Below are extracts from a sratumrv instrument that ha-s irnplicr nons for law firms.

I

36

rART!!

OBUGATIONS ON PERSONS WHO CARRY ON RELEVANT BUSINESS Systrrns ~ nd training etc. to prcwnr moncv tauncerteg

3. - (I) Every person must in the (;OlL,:<;<': of relevant business C;1meJ on by him in the United Kingdom -

(8) comply ,yitb the requirements of regulations 4 (ideutlficatfon procedures), 6 (rcrurd keeping prue e nures) and 7 (Internal reporting procedu res):

(b) establish such other procedures of internal control and comruunicouon ,I:;' may be appropriate for the purposes of forestalling and preventing money laundering: and

(c) take appropriate measures so that relevant employees are-.

(i") made 3W:UC- or the provi<;.iull!:i of these Regulnticns, Par! 7 of the Proceeds nf'Crimc Act '2002 (money launderieg) and secnons IS unc 21A of the Terrorism Act 2000(24 J; and

(ii) given training in hOI\' ro recognise and deal with transactions which may be ml<lted 10 1Il0Jlcy laundering.

(2) A person 'who cnutravencs this regulation is guilty of an offence and liable-

(<I) ou conviction on iudieuneur, ID imprisotuucnt fur <:I term not exceeding 2 YCa!"$., 10 a fine or ro beth; (b) on summary conviction, tu a fine not exceeding the statutory minimum

Irleunflcauon procedures

4. - (11 In this regnlariou and In. regulations 5 to 7 -

(a] "A" means a person who carries on relevant business in '[he United Kingdom, and (b) "8" means an applicant for business

(2)rh1~ regulation applies if-

(:1) A lind B form, or agree LO form, a business relationship; (b) in respect of any nne-off transaction -

(i) A knows or SU'iPL'l:t5 that the transaction involves money Iaundertng: or (ii) payment of 15,000 euro or more is to be made by Of to U: or

tei in respect of lwo or more one-off trcnsacuons, it 3J1PCill!'; to A (whctuer at the outset or suuseqncntly) that tile lr<l,il:;.m;tlmlS- are linked and invnlve, in total. tile payment of 15,000 emil or more by or to B.

(3) Amust maintain identsflcation procedures which -

(a) require that as soon .. ~ Is reasnnabfj- pracrtcable after COm;lei is first niece between A and B - [i] B nlU!i1 produce sansfactury evldeuce ofhis idcenty; or

(i i) such measures speeilicd in the procedures must be taken ~L! order 10 produce satisfactory evidence of H's identity:

{b) take into account tbe greater potential for money laundering which arises wheri 8 is not physical ry pre-scm when being Iden rifted;

(c) require thai where satisfactory evidence of idcuriry is not obtained, the business relationship or one-off transaction must not proceed. any further: and

(d) require that where B acts or appears to net fer another person, reasonable rncusurcs must be taken for [he purpose of csteblishing the identity of' rhat person

Regu lation 1

Internal ITportin::: procedures

(\')A llLUJ;."1: m a mtatn internal 'repertmg procetlurcs \1"l\iIC\i reoune 1\,.11-

(;1) a person in A's organisation is ncmtnatcd to receive disclosures under this regulation C'the nominated officer")

Note: Headings in the above document appear in bold in the original statutory instrument.

Pra(essiorUl/ E.nglisil in U'5e Law

·5.1 Cumplete the definitious. lcok at A upposite to help you .

. .... - process by which finance obraircd thruugh crime is used in such a \~;8y thar it <1ppcaL"s to originate from il legitimate source

2 ,' .. "-,, - a bllSTTlESS ar-riviry nor ca-ned om in the course of

an existing business relationship

- snricipnring and hindering

4 .

quickly as possible

5 ... , ... , ... , - took every care and carried our

. - as

required procedures

6 - coufidentia] informacion made public

15,2 Replace the underlined word, and phrJses in the memo below with alternar.ve word, and phrases from A opposite. Pay attention to the grMnrnatical cpnreXL

To: All Partners and Fee Earners From: Peter O'Donnell

Subject: MOlley laundering procedures

You will no doubt be aware of the serious implications for legal firms and their employees of failing to (1) observe the (2) Profits from Crime Act and the Money Laundering Regulations. Given that

it is cosstote to become uruntentionaltv tnvolved In a money laundering transacticn In the course of. for example. a property purchase. or in a situation where you (3) carrY out activities on behalf of someone else, the firm is anxious to put in place systems and to provide training to ensure

that there are effective procedures so that employees do not risk (4) breaking the regulation.

The penalties following criminal prosecution and conviction may comprise imprisonment and a

(5) money penalty. We need to be able to demonstrate that we (6) did what was possible and (7) carried out aB formal reQuirements to avoid comrnirth-q an offence. The main offences under the current legislation are:

~ Not (B) hi~dering m preventing a money \au~derin\l arrangeme~t

• Not making a (9) ~ if you know or (10) guess money laundering

• Prejudicing an investigation, for example by tipping off a suspect Evidence of identity

As you know, the precedent form of the Client Care letter for new bl ients and the firm's standard terms of business contain information to make clients (11) conscious of our obligations under the legislation. An Important part of our procecures is the requirement to produce (12) sufficient proof of identity from new clients as soon as is reasonably practicable. Obviously there are different requirements (for example, appearance In person, passport, driving licence, etc.) for different types of client and the relevant guidance is set out in the Office Manual,

What to do if you are suspicious - internal reporting procedures

I am the firm's (13) named Money Laundering Reporting Officer If you have any suspicions at all, either about a particular client or any aspect of a (14) business activity, please feel free to contact me. If I think we need to refer the matter to the National Criminal Intelligence Service, it is extremely unlikey we will be able to Inform the client - this can amount to tipping off. If NCIS decides to in"estigate, we wi!! hav" to terminat" our retainEr with the client.

Date: 23 April 2007

BRIDGEMAN BANKS -INTERNAL MEMORANDUM

OVu -+0 tjoa.'¥'

Explain how money laundering is dealt with in a jurisdiction you are familiar with. as if to a foreign colleague.

To see the Money laundering Regulations 2003 and Proceeds of Crime Act 2002. go to: www.opsLgov.uk/acts.htm

ProfeSSional English /(1 Use Law

37

38

CI ient correspondence

Client correspondence

Conciseness can be a feature of legal t:urrt':spOl)cielKe in English. This is partly achieved hy using words or phrases to refer co segments of earlier rext (xuhstitution) or by not CUll1p~etlJ)g a phrase and omitting words (elhpsis), assuming the reader can recover the meaning lron1 the preceding text. Another feature of legal text is the use of capitals midsentence for key terms which may be defined or interpreted elsewhere in rhc text Or in another document. The letter below is h-orn a sequence of correspondence between .1 solicitor and his diem. Ir concerns rhe final stages of the purchase of a company.

JENKINS lVATSON

Slric-Uy Private and Confidential

Mr G Stobbard

Managing Director

Lincoln James Limited

" India Street

Winchester

EtC pl2122 - OO.:!

En-cl/,

23 February 2007

Dear Gordon Project Ivory

Target Company - Fr a nklln Red Limited (FR Ltd)

Following OIlT meeting On Monday please find enclosed the further amended /·h>l"ld\· (~fT('rm:J relating to tb ... ::Ilwvc Jor your approvel,

A" previously discussed. yon will let me have further instructions in relathm lo conditions [0 which Comph'riot. w1[I be subject. YOu will -:;ee that I have left Lh~s Lisped as originally drafted for the timor being

I should be grateful J f Y0L! would read the cndlJ.sed carefully and cunfinn that you are happy with the same. or alternatively let me know if any further changes are required. I will he engaged ill meetings on Thursday morn i ng but am in the office for the rest of the week apart from !.!::lli1.

1 look forward to hearing fr-om you

Yours sincerely

-\Lo:.'Pai.vv

Note: End/. - an abbreviation for 'Enclosure', used to indicate that other documents are included Heads of Terms - document setting out the principal agreement pre-contract

completion - financial closure of the deal; when it is completed

Standard phrases for starting and ending letters and emails

Stating the reason for writing

[ am writing to inform/advise you that ...

Please find enclosed , .. I I am pleased to enclose ... 'We act for I on behalf of ...

We are instructed hy the above-named client in relation to ,.,

Offellng fu rthe r assistance

Please let me know if you have any particular concerns ...

Please let me know if we can be of further assistance ~. ~

If you have any questiomi, please do nor hesitate to give me a call, ..

Referring to previous contact

Further to our recent correspondence ...

1 write further to my letter I OUI meeting of ... As previously discussed H.

Following our meeting on .. ,

Thank you for yourlctrer/ernail of ...

Referring to the next step

I should/would be grateful if you Call ld ... Could you please confirm that ...

Ending

1 look forward to hearing from you shortly I as soon as possibl«.

[ look forward to our meeting I your reply,

Professional English in Use: Law

. 6.1 Match the words and phrases from the letter in A opposite (1-6) with the svuony.us (a-f},

1 apart from

2 for the rest of 3 enclosed

4 further

for the rime being 6 amended

a for now b chonged c besides.

d for the remainder of udditicnal

together with the lcrrer

. 6.2 Decide which of the following phrases underlined in A opposite is an example of xuhstitution and which IS an example of ellipsis. In the case of subsrirution , make a note 01 the phrase in the letter which it rders back to. In the: case of ellips.s, make a note of the missing W01:tI(S). Thefirst one h'1S been done for you .

... fur the rest of the week "part from rlill. Substltution of 'that' for 'Thursday morning' ... relating ro tbe Ilbovc ...

3 ... I hOI ve left this aspect as originally drafted.

4 rea d the enclosed carefully ...

5 ... and confirm that you arc happy with the same, or ...

·6.3 Read A opposite then sa)" If these statements arc true or false. Find reasons for your answers in the lerter.

The Heads of Terms have been changed several times.

2 Alex Paine has made 110 changes to the conditions for Completion. 3 Alex Paine is not expecting his client to give him more instructions.

4 Alex Paine does not expect his client to reply if he is satisfied with the enclosed document.

16.4 Complete this letter from Alex Paine to his client with appropriate phrases from R opposite.

There is more thar- One possibility for three of the answers.

'April 2007

Dear Gordon Project Ivory

Targer Company- Franklin Red Limited (.·R Ltd]

(I) .,.,."""""""" . (store the reason/Of" wrlling) the Agreement in respect

of the above which hus IIO\:V been agreed by FR Ltd's solicitors. This bas not changed since thelast VenHUIl

sent to you by email As (2) (refer /0 pn.:'virHts cont(l(.·')

please note in particular details concerning employees in Schedule 5. I don't think there arc any surprises

there but (3). . «()lfe~·.fill"thCl" as:HstrINCe).

If you are happy with the same. (4) (re_fer to the next st!!p)

arrange for the Agreement to be executed on behalf of Lincoln James Lid where indicated. Please bring the executed Agreement along to our meeting on Monday I I tho

(5) . (eJldhlg ,,"rase)

Kind regards,

Alex r"~i,",,~

Alex Paine

OVu -1-0 e= "

Look for examples of substitution and ellipsis in correspondence and practise decoding

them, Ma ke a note of standard phrases you notice in correspondence from Engtish-speaki n9 colleagues or clients.

Professional English in Use .law

39

I:D Explanations and clarification

_ Explaining a procedure

\X!h.en you list (he dl tferenr stages of a procedure, your listeners" comprehension of the information rhar YOLI arc pn;,sencjng \-V111 be be([er 1f you use phrases ro srrucrure and signpost whar you say. For example.

Firs;t ''', then .. '1 next "'; after that '''j finally ... Other phrases you might use include:

The next thing/step is to ... , once thars hccn done , .. , bdore that happens you/we ... , the last s rep will be to •..

_ Approximating and com paring

\X/hen t<.llking to or wri-ing to a client or coHcagll~> lrcm another legal system, you may need to explain Or describe features of you I" system which arc different or broadlv similar. The phrases below can be used to compare aspects of your system. [r rnay be appropriate to use key rerms in your O\Vn lctnguage ilnd then offer a comparative explanation, for example:

( In Scotland 'delict' arises from the law of oblig'Hil)lls. Thi, is comparable to 'wn'in England)

We have X but it diHers from (your) Y in the following way ...

ill our/your system

procedure approach institution regulation remedy

There is uo comparable

... Rephrasing and clarifying

When you are explaining 50111ething w-hich is new or complex, It is imoorranr '('0 check d131 your lisrencrs understand tvhar may be new' terms or concepts. You can help their comprehension by rephrasing your words <lad help your own comprehension of what they say by rephrasing or surnmJ.rising the'lr words. Yon C<1.n use the phrases bduw to .;;~gnai that YOll "LHe re.phrasing or asking for clarification.

In England we have ." COlnl110n I·ow l svsrern, char IS, cases arc ... J\

,aying suggesting proposmg arguing

So, what you're

explain further ." pur' it another 'vay .. '

40

Professional Eng/i51! in Use Law

is ...

17,1 Explain tbe different stages in getting proprietary righIs for an invention as it to ;3 client. Look ar A opposite and use the information below to help you. The first part of the explanation has been done for you.

• consider submitting an application to the patent office in the research phase

• don't publicly disclose the invention because this might be inrcrprcred as prior publication

• think abour using the services of a registered patent agent to help prepare rhe specification

[tl-.c legal document] required bv the patent office

• cornplere the form 'RequeSt for grant of patent'

• take Or send rhe documents to the patent office

• the parent office decides whether the invention fulfils specific conditions before it grants a patent

Y9.1,J.,.\,:(f!~0.0 .. m~.t9.,g.i.~~~.Y9.!J .. §~,.Q.,=·n::J.j.r!~,.Rf.Y;;h.¢; .. >?t;:.~1.g;~,.in.gy.~.ll!")g . .r.r9.p.r.I~:t.~,ty .. ~,ight~:,f,i.r:-:s.J::.1 .. ~.Q.r,J.?:.i0~r. .. ,?pl;::~iHdtJ0 .. ~f:1 .. ~.pV!.i~,~t.i.9rLt9:.th~,.r.~.t§.~:t.Qffi~fc:.j[l .. tb~.,r.¢.:;;.~~n:.::h.p.b~f?c~;., ..

17.2 Cumplete the sentences with words and phrases from B opposite, Use the Index to look up anv unfauuliar terms. There is more than one possibilny for four of the answers.

A bon ) £dt J,C'i. )S ' "... au ::1CT. in g"()nd '"-1ith.

2 The jury system in Scotland that in England because

thereare ·l5 jurors on a panel in Scotland compared with 12 in Engbnd.

3 In the English legal profession. rho," with rights of audience in all the courts ate barrisrers: in

Scotland rhey are advocates.

4 ALAl)r (Latin American lnregration Association) is APEC (Asia P',~ific Ec()nomic C(K)reralion) be.emse it sh",e, tk '.,im of snengd1tlling the trading sysrern between irs members.

5 In Scotland, juries may reach one of three verchcts: guilty, nor guilty or not proven. This

...... England where only two verdicts are possible: guilty

or not guilty+

17,3 Complete the sentences with words .md phrases from C opposite. There is more th'lTl one

possibility for two of the answers.

The clause- excludes abnormal weather conditions,

weather which is signific8nrIy different from previuus It:cDrdS1 like a hurricane. Towards the end of rhe agreement there arc usually the hoiler.plare (buses,

, clauses such as whar the apphcablc law will be and tht: way III "\v\\ich I1ut\CC5 \..,ave. to be <erved.

;3 During negoriarions, arguments can often arise in connection with when a party has to

perform an obligation. , disputes can happen over

the inrerprerarion of terms like: 'immsdiarely', 'forthwith' arid 'as soon as possible'.

4 You referred to the term 'forthwirh',.. .. you're saying

rhc term is ambiguous?

OVa- +e tjou·rJ1

Use appropriate phrases from A to talk about a complicated legal procedure you have to manage in the course of your work. Or, compare an aspect of your country's legal system or law with an equivalent in the UK or the USA or another legal system,

Profess-ional English in Use Law

41

Legalese

~ Legal language

Legal writing in English has developed over hundreds of years and is character-sed by specific features, some of which call make it difficult for the non-lawyer to understand. Characteristics

of legal writing include: using Latin terms (sec text B below); using technical terms ('subsidiarity' - see Unit 8); using old-fashioned words not much in general use (sec text C below); using pair> of words with a reciprocal relationship (,lc"or'/'Iessee' - see Unit 39); using legal jargon ('without prejudice to') including the USe of pairs of word, I'terms and conditions'), or triplets ('build,

erect or construct"); having special meanings for words in ordinary use ('the Judge determined the facts of the case', where 'determined' means 'decided'); using vague words ('provide a sufficient service'); using long sentences with htrle punctuation; inverting word order ('title absolute'); using capiral lerrers to signal important or defined terms I'the terms of the Lease".') avoiding persona. prUilouns I'vou', 'we', ,]'); the specific use of the modal verb 'shall' to impose an obligation or dUD on someone ('The tenant shall not sub-let rhe whole or parr of the premises.'); rhe USe of 'shall' in 11 din-crorv sense ('Notice of an appeal shall be filed within 28 day'.')'

There is a movement to draft legal text \11 srandard. mndcm, 'plain' English but any change will be slow,

Note: Some legal drafters argue that the use of 'shall' in a directory sense is to be avoided because of confusion, Note also the general English USE of 'shall' to refer to future intentions (,I shall write to him'), althouch this use is increasingly uncommon,

_ Latin terms

There are many Larin Terms in written English legal text, although recent reforms in The English justice system have encouraged the usc of English rather than I.arin. Sonn: Latin terms are used so frequently that they are in general English use Ic.g. ad hoc, bona fide, pro rata" ctc.), It is useful to be able to recognise their meaning and 3. dicrionary or online glossary will help, Forms of pronunciation vary.

ad hoc - for this purpose

affidavit - witnessed, signed statement bona fidc - in goou faith

caveat - warning

de facto - in fact

de jure - by right

et cetera (etc) - and so on exempli gratia (e.g.) - for example

ex parte (ex p.) - by a party without notice id est [i.e.] - that is

in camera - hearing a case in private in curia - ill open court

in situ - in its origina I situation inter alia - among other things ipso facto - by the bet

per pro - on behalf of another per sc - by irsc'f

prima facie - at first sight pro rata - in propornon quasi - as if it were

sub judice - in the- course- of tri OJ 1 ultra vires - beyond the power videlicet (viz) - namely

_ Older words and modern equivalents

A number of linking terms art: used in older wt-incn kgal texts (case reports, legis.arior., court documentation I contracts, erc.) to refer to other parts of the same text, to different legaI documents, or to related contexts.

the afore-mentioned / the foregoing - Set our above I written above notwithstanding - despite

the undennenrioned - set out below I written below thereafter - after that

hereafter - after this thereby - in that way I by that

hereby - in this way / by this therein - in that (document)

herein - in this (documcnr) thereof - of rhat

hereof - of [his thereto - to that

hereto - to this therewith - with that

herewith - with this

42

Professiollal English in Use Low

18.1 Underline the chararreristic fe8tures of legal writing mentioned in A opposite (for example. using old wordsrm the following consumer contract terms (1-3). Then complete the revised versions In plain rcrrns [a-c] with appropriate words lor forms of words) from the original

rcrrns (1-3). Pay attenrion to the grammatical context.

This Agreement and the benefits and advantages herein contained are personal to each Member and shall not be sold, assigned or transferred by the Member.

2

Lessor shall not be liable for loss of or damage to any p.roperty left, stored, Or transported by Hirer Or any other person in

I or upon Vehicle either before or after the return thereof to Lessor. Hirer hereby agrees to hold Lessor harmless from, and indemnify Lessor against an claims based on Or arising out of such loss or damage unless caused by the negligence. of Lessor.

3

Title to property·in-the goods shall remain vsstedin the Company (notwithstanding the deLive/y of the same to the Customer) until the price of the Goads comprised in the contract and ,aLL ather mone~ due from the Customer to the Campa"~ on an~ ather

account has been paid in full, .

transferable.

b

We are only ..

for .. , ,.. . or damage

to ., ... ,.. .10:;:£( ill the

if the loss OT

damage ..: our

.... from

We shall retainownershlp

of the , until

you have. Ii n ished

..... for them,

1 B.2 Match the sentences containing Latin terms (1-71 with the sentences which. have similar meaning (a-g.). Look at r., opposite to help you.

1 There is a prima facie case to answer. 2 They have entered a caveat.

3 Their action was ultra vi res.

4 The newspapers cannot reporr details of the case because it is sub judice,

5 An ex parte application was lodged ar the COUrt.

'U '-rht: t.tJ nn. ~~fL ·111 I..;J rucra.

7 An <let hoc rommirree was formed.

a They ,1cteJ in a way which was bc}'ond their leptim"te powers.

b An application for an injunction was made to the court hy one party and no notice was given co the other parry,

c The case was heard ttl private, wrrh no members of the public present,

"rneynave warned us they have an mrcrcst in rhc case, so they will need nonce before we take any furrher .steps

c A cornnurtee was set lip for the parricular purpose of investigating [he is-sue.

The action should proceed because one sid'.: has shown there seems to be sufficient evidence.

9 The case cannot be rnentioneo .11"1 rne mccua if It is hkely to prejudice court proceedings.

di~d~ant3g", (If drafting kga! t<:Kt i!1. 'pla'n' lan9ua9~.

. .

Profes5io(wf English in Use Low

43

m Business organisations

_ Sole trader

J3n111.: Anderson. a partner in The commercial department of a law finn, is commenting on the choices for different trading vehicles for business.

'A cl-rnt wanting to operate a business for profit might select from a number of different trading entities. Each has different legal characteristics and is subject to different rules aud rcaulations. The simplest and commonest form of business srrucrure is ~l sole

trader. This gcncrauy suits a relatively small enterprise, such as an independent software developer, a hairdresser, or a small shop. It's headed by ~ single individual and it differs from a company in that the ownership and management is usually vested in the same person, who is personally -cspunsiblc for all the debts ot the business, and may thus risk becoming bankrupt. finances arc confidential nr«: formalities are few, aside from Value Added Tax, or VAT, regulations.'

_ Partnerships

; A common form of structure for certai n kinds of business, for example accountants, solicitors, and architects, is a partnership. This needs to have at least two members and nonnaiiv a maximum of twenty, There is an exemption on size for some types of firm? such as solicitors and accountants. All the partners may bc jointly and severally liable

for all the dents of the business. The relanonship between the parrners is usually drafted in the Partnership Agreement. This can set our the duration of the partnership. its nome and husiness, how profits, los:;cs, and running costs are to he shared, how much capital each partner is to contribute, what roles will apply to the capital, what grounds will lead to a partner being expelled from the COlnpi.lIly. what resrricrions are imposed on partners, and so on. It's also possible to have a Limited Liability Partnership, or LLP, which has a legal identity separate from its members. In this sense it resembles" limited company (see text C). It's possible for all the partners except one, known as the general partner, to be a limited partner. A sleeping partner may have a share in the business but doesn't work in it. An individual is therefore able to invest capital in an Ll.P wirhour risking any further li.rbilirv. l.l.Ps must be registered with the Rq;i,trar of Companies.'

_ Limited Companies

'A Private Limited Company (Ltd) is a separate legal entity which can sue, and be succi,

ill its 0\\,11 right. The Cumpany is identified by its registered number, which will remain the same irrespective of any changes of name. A business can start life as a limited company and this may be particularly appropriate where high-risk projects are involved. In some instances, directors will be aSk1"0 ro guarantee the obligarions of a company, for ex~mple hy g,i\'in~ sccurirv Over p-er<;anallls~ets to gunrantce..: company borrowing. This

is particularly common in the case of new companies who arc not able to demonstrate a history of profitable trading. A Public Limited Company, or PLC, is diffcrcnriated from a Private Limited Company in that the shares can be sold to the general public via the stuck market [0 raise share capital. Jt'S mandatory for a PLC to have at least two shareholder" two directors, and a professionally quali£eJ Company Secretary. The minimum authorised share capital is £50,000 and 2.')% must he paid up. Before the company can tradt Dr borrow money, a Trading Certificate h3S to be "ht~i"cd h[)m the RegistTar [)f Companies (sec Unit 201:

44

Professional Engfish in Use law

19 .. 1 March the two parts of tile sentences then replace the underlined words and phrases with alternative words and phrases from /\ and B opposite. There is more than one possibiliTY for One of the underlined phrases,

Choosing an appropriate busmess a the st"rtin~ date and len~rh of rhe partnership.

medium depends on b for the finn's debts, while limited partners have

2 An individual's business will cease to restricted liability.

trade if

3 A small enter» rise where ODe person bears the responsibility and takes the profits

4 In 8.11 ordinary partnership, all rhe partners an:

5 In a Limited Partnership, a -"pccihcd partner bears [he risk

6 Partners need to decide

7 Derails such as (he division of profits and losses rna y be

Accountancy firms rna y have- more rha»

twenty mem bers .

9 Misconducr by i1 partner might lead to

C set our in the deeds (fDrmal doculTIents} of the ~mnnersbip.

her being forced to leave the partnership.

e becauxc of freedom from the normal provision und er the la w.

responsible collecrivclv and individuallv for the financial losses of rhe business.

9 a COurt declares the businessman is incepe ble of p"vin~ his debts.

may be run by a single hll."ine~s person.

r a number uf factors, SUL:h 3S the size and type of business and rhe need [0 limir liability.

19.2 Make word combinations from C opposite using words from the box. Then Lise appropriate v v ·ord combinarions [0 ;lJ1S\Ver the questions below,

Registrar of nuse

the obligations

guarantee entity

Public

authorised capita 1 Companies

legal

minimum share capital

over persona I a ssers secunty

Limited Comoar-v

111 a private limited company, what guarantee may ;1 director have to provide in order to borrow GlpiraJ?

2 What type of business organisation must have £1.2,500 of shares paid up'

3 \Vhich official keeps a record of all incorporated companies, the detail, of their directors and their financial statts?

4 It is mandatory for a PLC to have 25% of WhM paid up) 5 What is the purpose of a PLC ,elling shares to the public?

A sale trader

A partnership

oar -+0 '10U ,~

What information would you want from a client wanting 10 start up a small prntit-makinq business? What advice would you offer your client?

For more information on UK company reqistration, g() tn: www.cllmpanie,h()u,e.gllv.uk/.

ProfCSSir::mClI English ill Use Law

45

S!J Formation of a company

_ Incorporation

jam:e Anderson. a partner in the commercial department of a law firm~ is. discussing the fOrInation of a company in the UK with all overseas client.

The regulations for incorporation, that is, forming" company, are set alit in the Companies },IOt 1985. "There are a number of steps to be followed in thi~ procedme.

We offer this service to clients, as do accountants and other private sector formation,

or registration, agents. Firstly, it's necessary to choose a name for the company which

is legally acceptable. 11," name to be registered isn't necessarily the same as the trading name, The appucarion for registration win be rejected if the nome can't be dislinguishtJ easily from a company which already exists as a registered company. The use of certain words) for example "British', "International' and '"Eurupean\ may require prior approval before they can he used in a company name. Form 10, which gives the names of the directors and Company Secretary Isee Unit 23), and form 12, arc submitted to the Registrar of Companies at Companies House in the respective jurisdiction". On completion of rcgisrranon, the new company wiIl he given a company number, <lLSO known as a registered number, which remains constant throughout its life, and Companies House will issue 3 Certificate of Incorporanrm, In tact, -It~s possible ro begin trading as a company by purchasing a shelf company, which is already registered, and having its shares transferred. This is a route chosen b)' clients where speed is a prerequisite.

A company must have an office in the jurisdicrion ar which it can be served with any legal process. The statutory books, or official company registers, must also be kept there arid be available tor inspection. Details of any registered company - its regisrered office, company number, accounting reference date, date of its financial year end, and history of previous names - can be found tree of charge at Companies House.'

'For companies registered in England or Wales - Companies House in Cardiff. For companies registered in Scotland - Companies House in Edinburgh.

~ Memorandum and Articles of Association

'\Vhcn a company is incorporated, it must adopt Memorandum and Articles of Association, also known as the 'Hem and Arts'. The Memorandum sets om the Company's obiects, or purposes, and it's important to ensure that these properly reflect the company's intentions, for example the ahiliry to mortgage company property for the purpose of raising finance. The Articles set our the relationship between tile company and irs shareholders. The requirements for directors" and sharchclders' meetings arc also set {JU[ here, as are restrictions on share transfer and allotment of new shares, and regulations concerning directors" powers and duties. Most companies are limited companies with

the liability of members limited to the nominal value Di the share, they hold or, less comnunlv, the amount they guarantee to contribute to the company's liability on liquidation - if the company is closed and it, assets sold. A company must h·,we a stated number of shares issued to properly identified shareholders. Any company will have a maximum amount of share capital which can be issued, known as rhe authorised share capital. A company need not issue all its authorised share capital.'

BrE: Articles of Assuciatlon: ArnE: Bylaws

BrE: Memorandum of Arnclcs of Association; AI11E: Articles of IncorpDration

Note: cor mare .nformaton about snares, see Unit 21.

46

Professional Eng!isl! in Use Law

20.1 Jamie's client has sent an email asking mere about shelf companies. Complete Jamie's replv.

Look ar A opposite to help you. There is more [han one possibility for OTIC of the answers

Fonl!l Colour.! £i!ve As Dnft

-- _._ .....•... _-_ __ ._----

Dear Michael,

You enquired about shelf companies. These are companies which are already registered at Companies House - often with a name which is linked to the

(1) , for example 'XY 1000' where XY is the initials

of the solicitor's firm. The srrares of the company are (2) to the

purchaser, who normally urgently requires a (3) The

(4) is usually changed and a new Board of Directors \', '.:

and a (5) are appointed to replace the initial Board and

Secretary, who resign on transfer. Such companies usually have standard Articles

of ASSOCiation. The purchaser acquires the Certificate of (6) .

20.2 Jamie shows his client a sample Memorandum Replace the:' underlined words and phrases wiri appropciare legal terms from A and B opposite.

No, of Company SCI 25-543 The Companies Act 1985

PR1VATE COMl'Al'<"Y (1) RESnUCTED BY SHARES MEMORANDUM AND (2) REGULATIONS OF ASSOC1A:rlON LA NCELOT LTMrrED

(Incorporated the 291h Illy of May 2002)

Arthur Evans Ltd; Registration Agents, I Tantallon StrCCI, Edinburgh 1. The Name of the Company is "LANCELOT Lh\1lTED"

2 The COITIP3JlY'S (3) ~ is to be siniated in SCI;I11ilild

3. Th.,. Company's (4) purposes arco-

(a) 10 carry On liJ[ profit, directly or indirectly, whether by itself Or rhrougb subsidiary, associated or allied corupauies or firms in the United Kingdom or elsewhere in all or any of irs branches any business, undertaking, project or enterprise of any description whether of a private or public character and all or any trades, processes and activities connectecuicrcwuf lIT auculary or complementary thereto

(h) To carry on any other trade or business whatever which can in the opinion of the Board of Directors be odvantagecusly carried Or! in connection with or ancillary to any of the businesses in the Company.

(c) To purchase or by any other means acquire and take options over any pro perry whatever" and any rights or privileges of any kind over or in respect of propcrry

(I) To improve .. manage, construct, repair, develop, exchange, let on lease or orhe rw ise (5) OOrrow capital ~vith I~ as ::i.eouriry. charge, sell, dispose of. turn 10 account, grant licences, options. rights and privileges in respect of; or otherwise de a l with all or ::my part of the Property and rights ofthe Company

(y) 10 do- <I~I such things as may be deemed incidental or conducive to 1JH': artainmcm of the Company's objects Or any ofthem.

4. The (6) rc~ponslhJlitv of the members is limited.

The Company's share (7) asset 'value is £lO:OOO divided into 10,000 shares or' £ l each

Pro(essionol English jn Use Law

47

DI Raising capital by share sale

\

U KsetUp..,a.Uk - Company formation spe<ialist5

How companies raise capital

A company limited by shares may raise capita! by borrowing money and through the sale of shares. A company's balance sheet - a statement of the financial position of a company

at a specific time, tor example at. the end of the financial year - shows how the company is capitalised, or fi~ance~, b~ providing oeta,\s of·(\et>t ano share funding, 'Capita\' ,,,fers to the liability of the cornpanv to the people who have provided it with finance on a lone-term basis. A company is obliged to maintain its share capital in order to protect its creditors,

and funds may only be taken from the capital faJ[owing complex procedural rules. The Articles of Association provide the power to issue shares. The Memorandum sets out thenomina.1 capital ~ the total otthe fiiil~e value, printed on each share, of all of the shares which the company is' allowed to issue. When new shares are created by the company they are issued, or anottedl to sh2lreh-o~de'rs - that is, they are a"oc.ated among ap1?'\~'C'ants V<lnc SubscT;be for shares. A shareholder i5 a member of the company and holds a share certirtcate.

1_ Share value I

I

_ Rights attaching to shares

I

All shares have a nominal value, generally of £11' also known as t.lle par value, This value is set. out in the capital clause of the Memorandum. Shares can be issued at a premium - for a sum greater than their nominal value - but they cannot be issued at e discDunt - less than nominal value. Contracts for the sale of shares may provide for deferred payment, that is" part may be left.outstandlnq until the company makes a cat! fori or requests, the unpaid amount. The market value of a share depends upon the profttebthtv of the company' and

the sum of its assets, Tbe legal nature of'~ share for the shareholder will depend upon tn.e contractual rights attached to the share, which is a chose in action - a personal right which

L_c_"_n_b_e __ eo_f_o_rc_e_d_o_r_C_I_ai_m_e_d __ "S __ if_i_t_w_._r • ._p_ro_p_e_rt~y~ ... -w .. ~~~~~~~~~~~~~~_.u~

A company may issue djfferent classes of shares, which have different rights attached to them. The usual rights include:

.. A ,right to dividend} that Is, a share in the profits. A company may only declare a dividend if it has made a profit.

"" A right to vote, an J;'csolutianst for- example proposals on matters relatIng to the approval of dlrectors' contracts, .at the company's annual general meeting (AG':M) ,-' a meeting of all t:t1e sharehctdar-s with the director-s •

• A right to repayment of the investment in the event that the company is wound up, 8r

closed.

Other rights are given as a matter of law by the Cornpanles Act 1985. Tnese rights are gen"r~lIy only gi.ven to shareholders with voting rights at company meetings. 'The Act provides that shares must first be offered to shareholders in proportion to their eXfsting sharebolding on terms, at least as favourable as those offered to potential new shareholders. lihis is tne right of ·pre-emption. Members of the cornpanv have 21 days in whith to exerci"e the right. It does ICICt: epply lf shares are issued for a non-cash conSideration, t1iat is, the price, not necessarHy monev, paid in exchange for the shares,

48

Pro{es'SiontJ/ English m Use law

'1.1 March the two parrs of the sentences then replace the underlined words and phrases with alternative words • and phrases from A opposite. P~l)' attenrmn to dl€' grammatical context. There is more than one possibilitv for one of the answers,

Shares can only be issued

2 The comp .. my Articles may allow directors

3 If more shares arc applied for dun the company has to offer, 4 Someone who owns shares is

The ownr . .rship of shares is

a the company can divide OLit the shares. b known as a shareholder_

c to equal the total face value of aU the. shares of the company, as set out in the !v1enlorandum

of Association,

generally evidenced by a receipte to raise capital by selling shares.

~1.2 Make word combinations from 1'. and C opposite w~ing. words from each box. Then use rhe word comhin:1tlons to replace the underlined \vords and phrases in rhe sentences hclow.

declare the right
defer at a premium
e.xerdse. a resotutton
issue a dividend
vote on payment The Companies Act requires 75% of the shareholders to show their opinion "holl[ a special pro.v0s~d to change the company Articles.

The company will announce puhliclv rhar shareholders arc going ro be paid a proportion of

the compaLlv~s profIts.

Current holders of shares may lise their entitlement to buy newly issued shares before they arc

offered to new shareholders.

OVer 1-0 JjOI.l I,;~

What rights do shareholders have in a legal jurisdiction you are familiar with? for information on shares in the UK, go to the London Stock Exchange: www.londonstoekexchange_com/en-gb/.

Professionaj English in Use Law

49

""4 Debt financing: secured lending

_ Granting security

Usha Patel, a cornpany lawyer, is advising Patsy Nielsen, the- director of her client company, Rosie Glow Covmerics l.imited. The client wishes [0 acquire and equip new business premises which arc offered for sale, together with an adjacent unit) for a price of t:2~O,OOO. \lZW . jones Bank has offered the company" 10"" of £300,000.

Usha: I see that the honk's facility letter makes the loan conditional upon the granr

of a debenture to include a floating charge over all the company's assets, so, anything of value belonging to the cornoany, There's also a first legal charge over the property, which is like a mortgage. I suppose that's not surprising given that there's a S~JortfaH, you know, a. gap, hetvle-en the purchase price of the property and the total of the loan. Have you had a valuation yet?

A survey has been done - we're waiting for the report. 1 actually suspect thar the valuation \:\,[11 be slightly higher than the agrl'i.'O price, because the seller's in financial difficulry and want, a quick sale.

Patsy:

Usha:

\Vell, well See what the valuation comes out at. If it's really close to the £300,000, I th]l1k we should rrv ro persuade the bank that rhey'll have adequate security without a floating charge over all the assets. As I recall, the conrpany

has il prerry high asset vnlue with your existing machinery already. It may be that the bank Will agree to go with a debenture which IS hrnired to a charge over the freehold - that's your absolute right to hold the property or land wirhour paying renr - and ;;1 fixed charge over rhe machinery. Now, [he company hasn't granted security before. Are you familiar wah [he concept of charges?

Not very,

\X7ell, if the debenture is granted ar the same time as completion - that's the

final stage in the sale of the properry - 1['11 include ;;1 mortgage over the freehold property. This is effectively a transfer of the title to the property to the bank as mortgagee, subject, of course, to an obligation to transfer it back on repayment of the loan. The fixed charge will be over other property interests and will usually include shares) goodwill, book debts, and machinery. This 111GlllS that in th.: event of default, the charged assets can be appropriated by the charge holder, who's a secured creditor, to be- sold in order [0 recover rhe sum secured.

Patsy:

Ush,,:

_ The terms of a charge

Ushs.: The terms of the mortgage and fixed charge will usually contain insurance obligations and restrictions on the company's ability to deal with the charged assets without the bank's consent. For instance, if the adjacent unit is surplus [() your requirements and you decide to Let it to a tenant, as the lessor yOLL~n need [0 obtain the bank's consent. This will usually involve rhern approving the form of lease. Assets which are: of a more transient nature, such as stock) can't be secured hy a fixed charge, so a floating charge Can be used. \Xlhilc a floating charge is in place a company can still deal. with the assets without the consent of rhe charge holder; A l10ilting charge is sometimes described as being like a large cup; it

hangs inverted above the assets and doesn't affect the charger unless the charge crystallises. At this point, It descends upon the assets and becomes <1 fixed charge. Usually a bank gives notice of crystallisation. I imagine [he debenture \ v ,1.1 contain a negative pledge, which is a type of undertaking. It means that you won't be able to create any orher interest in the charged property, mcluding those subject to the floating charge, without consent.

50

Profes;ionol English in Use law

2.1 Complete the definitions. Look at A opposite to help you.

grant ~ agree to secure the cbanging assets of a

company, to!' example stock, nor any specific asset

2 grant .. , ... , - agree to secure a particular asset, for

e-x:,_)mp\e -eq'U~pnlel~t or property

3 grant.. nc_ .. c, .. nCHOCHOC ... '... • •••••••••••••••••••••••••••••• - agree to a document in which a company

ackllowkdg~s a de br in exchange for security over the company 's assets specifi~d in the document

4 grant ,. .. - agree to guarantee repayment of a loan by charging assets or property

in tavou r o f the len der

5 grant , ... , .. " .,,, ... , ... , .... ,. . ...... ,,- agree to a document transferring ;:m

interest in LlnJ Dr buildlngs as security for the payment of a debt

2,2 Complete this extract from a law firm's website with words from the box. Look at A opposite CO help you.

secured defaults

mortgage creditors

floating charge charge

debenture repayment insolvent

charge holder assets fixed charge

.A company may be funded by a loan I for example from a bank! on which It pays interest and far

which repayment may be guaranteed by a (1) Or a (2) an one of

the company'S (3) , for example a building or land owned by the company. This is

certified by a document generally called a (4) ... , ... , .. ,. .... , ... , ... Debenture holders are

(5) of the company. If the company becomes (6) , that is, unable

to pay its debts! debenture holders are entitled to priority over non-secured creditors to receive

(7) . . Debenture holders are normally (8). . by a (9) .

... ... ... ... ... ..... "'_ over specific property. ASSEts which are of a more changeable nature, such as

vehicles, cannot be secured by a Axed cnarpe, so a (10) ... , ... , ... , ... , ... , ... , ... ,.... may be

used If the company (11) , , , .. r its assets may be seized by the secured

(12) .

~.3 Complete the table wnh words from A and B opposite and related forms. Pur a stress mark in front of the stressed syllable in each word. The first one has been done for vou, Then complete the definitions below WIth words from the table.

Noun - type of NULlIl - legal person who Noun - legal person who has

legal agreement assigns (transfers) an interest been assigned an interest in or

or use in a property to another use of a property

'mortgage

'mOi....gagor

lessee (teuanrl

charger

grant

A agrees to a charge over their property as a security for a loan

2 A , , , , , "' lends money (0 the r110ngagor and has (1 charge orer the mortgagor's property.

3 A , , , , , , '.' grants a lease 011 a property.

Pra(e".,icm[J/ English in lhe law

51

W Company directors and company secretaries

_ Qualifications and duties of a company director

H~wew rr--m.Il,aU'Oif.MiWiffi,ifj'II'Mfl!fflfMnti :~:;:::"'-cliHnts \

Company directors

There are no mandatory qualifications to become a director of a private or public limited company (plc), although the following persons are disqualified and are not allowed to hold tne position:

an undischarged bankrupt, who has not been releasee by the court from his debts, unless reave, Or perrnlsslon, is obtained from the court;

a person disquellfied by a court from acting as a company director, If leave is given by a court, it must be for the person to be a ppoi nted as a director for a specific company;

in Scotland I a person under the age of 16;

• anyone over the age of 70 in the case of a pic This age requirement may be waived, or ignored, in the case of a candidate named by a general meeting of the company.

Although Incorporation lml-s liability, the directors r-etain personal responsioilitv to ensure the company complies with the filing of documents at Companies House on time, as required by the Companies Act. Failure to do SOlS a criminal offence and rnav resun In the imposition of a fine together with a Persistent Failur-e to fulfil these

_ Oualifications and duties of a company secretary

Company secretaries

The qualifications required to be a company secretary are set out in the Companies Act 1985. As a comparly officer , the c.ampanv secretary may be criminally liable for a def.auEt committed by the company, for example failure to file the company's annual return with Companies House in time. An employment contract will usually specify the remit of their duties, that is, the areas of responsibility, which normally include:

52

Professional English in Use Law

dunes may lead tD disqualiffcation from holding the office of diredor in the future. The directors must ensure that:

acco u nts for limited companies are delivered to the Repstrar of Companies witturt the requisite period, normally within ten months of the accounting reference date in the case of private limited companies or within seven months in the case of a plc, although the requisite period may be amended by legislation. The defaulting company may be charged a rate filing penalty In addition to any other fine Imposed by a court:

annual returns are subrnttted as specified by the Act. In the event that these are not submitted, and the Registrar believes that the company is no longer operating, he may strike it off the register and dissolve it. Any assets of the company at that point may become the property of the Crown; notice of change of directors Or their details is provided to the Registrar;

notice of any change to the registered office ~$ provided to the Registrar. If this is not done, statutory notices may be validly served on the reqistered office.

metntairmq the statutory registers; for example the register of members;

fi~\\\g the statutory forms, for ex-amp~e. notifying changes among the directors; serving members and auditors with notice of meetings;

supplying a copy of the accounts to every member of the ccmpanv,

keeping minutes of directors meetings and general meetings.

23,1 c'md answers to the FAQs below. Look i1T A opposite to help you,

- '. .

@ 0~;p· i,/www happrewanrtrn.co. ukjmternatiunal

-- __ ----_.-

Happrew K{;0

us find us

'-'FAQs

1 Hugh Minton-Davies has been offered an appointment as a director for Gecko pit, reg~5tered In England. He's 71, a non-EU citizen with South African nationality, and has been a director of several South African companies. He has unpaid debts and has been unable to pay his creditors

Is he qualified to hold the offlce of company atreaor for Gecko pic? Why I why not?

2 The directors of Gecko pic have 'filed their accounts at Company House more than nine months after the accounting reference date. They have failed to notify the Registrar of the death of a director and the appointment of Hugh Mlnton-Davles.

Can you adVise the directors on their situation?

3 The annual returns of Monocles Ltd have not been submitted far two years and correspondence sent to their registered office in England has been returned.

What may necoen to the company'

G. 0:: Q

* ...

.....

23.2 A new managing director, Simon Brown, is getting an update from rhe company secretary, Helen Bernard. Match Simon's questions (1-5) With Helen's responses (a-e). Theil replace the underlined words and phrases with alternative words and phrases from A and B opposite. There is moru than one possib.litv for three of the answers.

Helen, Can [just q.iickly check what's been done? \'>;'h",', happened ro the accounts?

2

When did you do that!

3

You remember we lost Eva Friberg as a Director?

4

And we're. going to change the location of the company's registered office,

We've got the annual general meeting cormng up soon.

Yes, we"! follow the requirement to inform the Registrar.

YES, I'VE fon"arded the details about her on the paperwork ro the Registrar.

'-_N_"_O_'_"_'O_b_lc_ll_l_,_S_ill_'I_ll_,_.I_'_Vt_'_se_O_t_O_l_lt_'_' f

notice to members and included the

record of the last AGlvl.

Dou'r worry+ [ sen[ them in ~ood rime,

I setH (hem to the Regisrra-;

oa« -1-0 ljOU ... ~

What legal restrictions arc there on the appointment of company directors in a jurisdiction you are familiar with? Are there too many or not enough?

For more information, go to the Directors and Secretaries Guide in the UK at: www.companleshouse.qovuk/,

Professional English in Use law

53

W Insolvency and winding up

_ Insolvency

Charles Stnnlcy, an irtsnlvency lawyer, is advising a client.

'Insolvency describe, the financial stare of a company when its debts or liabilities exceed its a'S:;L'"t~ 8!1d 'lv31lable cas.h. As soon as a c.ompany )5 insolvent, ~t must take action. to resolve the situation, This may include renegotiating debt, realising assets to discharge debt, Or even borrowing more rnoncy and increasing the liabilities+ There's ;;1 wealth of J.egisl8tion that imposes obliglltions on company officers in rclarion to the interests of creditors. There are secured creditors, whose lending is protected. by securi-v overthe company's assets, for example banks, and [here are unsecured creditors, often suppliers, who may initiate action to achieve repayment. There arc also preferential creditors, such as [he cOJup.any'g own I..:-n .... ployeot'6-~ for exan1ple in C:3S~'6. wheve \vagl.,;';. haven't been rald~ and nccupatiuna] pensjuu SChClllCS. The oprlolJS available to an insolvent COll1paJ1Y will be affected hy the position taker. by irs crcdirors, and the Y~UiQllS par-ties may seck legal advice. My colleagues and I often work 011 behalf of clients with" spec.alisr accountant, an insolvency practitioner, also known as an Il'.'

_ Insolvency scenarios

LDok at [his extract from a IE:<1Het d'tscribing pDssible )I'lso\vency scenarios.

Action initiated

Result

An order is made by the court appointing an administrator to take control of the company and to maintain it as a going concern, The

company is then said to be 'in administration', 't

The receiver must realise the assets subject

to the floating charge on behalf of the charge

ho I der, The floati ng [ha rge crystallises and is ~

, , treated as a fixed charge, Certain creditors will

I'" have rights in priority to the chorge holders. A,,,,

/'.: com?any \1-.. adrninistrathte rec.eiversr.(p ~s ofterl :;/ It-

1(, said to be lin receivership'

~:'J'I-A-c-re-d-it-o-r-o-r-c-o-m-p-a-n-y-d-i-re-ct-o-r-s-p-e-ti-t'-'o-n-t-h-e-+r-h-e-c-o-u-rt-m-a-k-e-s-a-w--in-d-in-g-up-o-rd-e-r-a-n-d-, t-h-e--l

;,",1 court to make a winding up order, company is put into compulsory liquidation,

i',: A liquidator i5 appointed to realise the

c:if-. e.-c_o_m_pa_n_y_s __ as_$_e_ts_, -1

': Shareholders decide to put the company I Members' voluntary liquidation

, into liquidation when the companvis still

solvent, that is, has sufficient assets to " discharge the company's debts,

A charge holder (see Unit 22) ~ including

, ' holders of floating charges created since the

, Enterpnse Act 2002 - or the company directors : 1 file notice at court for an administration order,

:: :1 A charge holder with a floating charge created

, , be!ore. the Enterprise Act 2002 ap points an

administrative receiver (an AR),

,: 5 harehotders decide to put the company

into liquidation if the company is insolvent. i' Creditors accept the liquidator.

~ Company directors, with the assistance of

f an authorised insolvency practitioner, apply to i the court for approval of a formal arrangement ~ with creditors, as set out in a proposal to pay ~/;editors u,n,der the supervision of the IP,

54

?rof~s"jQna~ EngliSh ill Use Law

Creditors' voluntary liquidation

Company vohmtarv arrangement (OlA) and appointment of a supervisor

or-, '111._

24.1 Choose rhe correct word In brackets to complete the sentences. Look arA opposite to help von.

A (dcbtor/crcdiror/direcror) is a per.mn or hody owed money by a company.

The creditors may rake action in relation to alan (bankrupt/solvent/insolvenr) company that will result in the c()mpa.ny becoming subject [0 one of several insolvency regimes.

Suppliers are often [unsecurcc/preferenrial/secured) creditors.

4 Employees and occupational pension schemes fall within the class of (solvent/preferential! secured) creditors; who arc cntit.cd to receive certain payments in priority [0 secured creditors. 5 A liquidator is appointed by the creditors or the members to (exceed/reaI1sddischarge) assets which may then be divided up among the creditors.

6 If the company has insufticicnt assets to (discharge/realise/exceed) its debts, creditors tnav decide [Q pur rhe company into liquidation

24 . .2 Answer the questions. Look at B opposite to help yon. There may he more then one possible

answer,

\X'ho can initiate

a voluntary liquidation?

b a company voluntary arrangement? c compulsory liquidstion?

d a company going into adrninisrration?

2 How can a r:,_:hargc holder obtain an administration order? 3 How may company directors obrain a winding up order?

4 What term describes the stage at which a floating charge descends upon the assets and becomes as though ir were a fixed charge?

How could you describe a company that is actively trading?

6 What term describes the process of ending the carrYlIlg on of a company? 7 \X'hat term describes the state of being able to par all debts or claims?

24.3 Complete this extract from an email about an insolvency proceeding with. prepositions from A and B opposite.

__ "-1'~~ •••••• III . ,., .. '_"., .• I_·>' w iJJJ .. lJLJ;. .. Jl.:j; .. ,...:: .. "' 'U'O'~.J.'..'.:..., .. .'_:.: ' •••• ~; ••• ~I_:_:.'.t_:.I..:..~_.,','. =~I_ .. 9.'

cZ( !':W tI ~

5-(:nd C~n Anilch Font5 CCllolJl'5 $.ilve ~ Dr .. n

From: ~-.5-ta-'-n-ie-y-@dsbSO I i cito-rs-,-co'--m__cc-=c:_===== ...... _;:::: .. - .. - .... --:::.·_·· __ .... -·-_·-··_-_~_ ... _ ... ~. ._-=._.-_._ ...... c_- zzzzz:':

To: p.j.5@bedfordlay.com-----------Su bject: J':TT Ltd _._.

Dear Peter,

Further to our phone discussion, I'm writing (1) behalf

(2) my client whose interest in J.LT Ltd is set (3) In a

document I've sent under separate cover. The document was drawn up

(4) the assistance (5) an insolvency specialist and

should be treated (6) a working draft. Could you let me have your

opinion (/) '" relation (1)) . the Interests of other creditors

and as soon as possible?

Over -ro tjOU -: 'J'

What happens if insolvency proceedings are instituted against a company in a legal jurisdiction you are familiar with?

For more information about insolvency in the UK, go to tile UK Insolvency heipllne at: w"' ... .inwivencyl\e\plil1e.co.lIk/.

Profe~'}i(Jno! English ill Use taw

S5

rB Alternative dispute resol ution

_ Alternative dispute resolution

Ann« Chapter heads the Lirignrion team in a .large firm DE solicitors. She is talking to u client about alternative dispute resolution.

'AIT€rnClr1Ve displue resolution, often abbreviated to ADR, is well-established In a n~HY'll;yt\" of )u'iisd\ct\on<;, including the USA, Canada and Australia. Over recent years, we've seen [he: emergence of mediation organisatIons and dispute resolvers, some on the Interncr. In the UK, ADR

is positively promoted for Lise in a w.de range of civil disputes) including small r-laimv, family matters, construction Or building contracrs, and complex intcrnanoual commercial disputes. It's generally proposed as

<1 cost-effective alternative to the lirigarion prOCESS and entered into on a voluntary'

basis by disputanrs, Or because of contractual provisions) rhar is, the condition." of :1

contract. Many cocunercial agreements now .ncludc dispute resolution clauses in which

the contracting parties agree the method [0 be used if a dispute occurs during the life

of the conrract. However, parties tn;ly also he referred to ADR the court during the

(ouest of litig"tiOll. A CivIl Proo-clure Rule ,cgUlres ti1t, UK CO\lItS, a' part of the

case mnnagement process, to encourage <lod bcilitate partie. to use i\DR procedure if appropriate. A National Mediarion Helpline has also been set up ro provide advice by telephone or online.'

~ ADR procedures

ADR refers TO a number of (bffcrent procedures used to reach a settlement. Some trcq uenrl y used methods ;J re:

• Arbitration ~ this is a moreformal and hinding process where the dispute is resolved by the arbitrator non·l)nm.ea by both parties.

• Mediation ~ possibly the rnosr popular process. An ir dcpendenr third parry, normally with appropriars expertise in the area of contention Or dispute, is appointed by [he parties to ;JCt 3S a mediator. The mediation process hegins with an all parries dixcuxvion; follm.ving this the respective parries separate ro discuss the issues and, with [he assistance of the mediator, .... eek to negotiate a set-lcmenr. If settlement is reached; ir can become a legally binding conrmcr.

• Mod-Arb - rhc dispute initially submitted to mcdiarion but if mediated settlement GH1TlOt br re:lched, then the matter is referred to arhirrarion.

• Adjudication ~ (he method most commonly used in Ci)l1S(fUCr10n disputes. A quick decision is made by the adjud.lcator and ;1 rime penoo is specitied Juring which either party n.ay give notice to refer the matter ro arbitration Or litigation. The adjudicator's decision is. binding upon the parties and must be Iol.owcd, unless and until a later decision is made by an arbitrator or the COUrt ..

56

ProfessiorlrJl English in Use Law

25.1 Complete the [able with words from A and B opposite and rehired forms. Put" stress mark in front of the stressed syllable ill cad] word. The first one hils been done for you.

Verb Noun - concept or Noun - person Adjc('tivt' object

rerfer

re'ferral

contractor

resolve

25.2 Complete the extract from a model ADR clause with word, frum the table ahove and A opposite. Pay arrention to the grarnrnarical context.

1_ Dispute Resolution Procedure

1.1 Gc.ncr a l

t _ L I AU disputes between the (1) ....

. arising. out of Or relating to this Agreement sball be referred.

by either (2)

...... , to the project board for resolution.

I. i.2 If any dispute GUillot be (3) .,.,.,.,.,.,. by the project board within a rnaxirnum or i 14 days liner it

h .. is been referred under Clause I.l.l, that (4). . , Shill! he (5) , .. to the

(l1ppmpriare ~I!u::er] or the [pub/ic sector chenl] and the le.g project InmwgeJ'l of the (6}

fIJI' resolution.

1.1.3 Work. and activity to be carried 0111 under this (7).

dfspute un .... prueedure.

. shall not cease or be delayed by this

25.3 Complete the extract Irom an email about online ADR using words JrWl1 the table above and A and B opposite. Pay attention to rhc grarnm<Hi.cal context

Tom - there's been some client interest in online ADRc Settlement websites in the US are

offering a mediation service an the basis of an agreed (1) by the parties.

Some organisations are experimenting with chat rooms. creating virtual (2) .

rooms as a way of reducing the costs of resolving disputes. Each party communicates

through the online (3) via email, who passes responses between the

parties. Some weosites otter a computer-assisted method for (4) disputes over claims. The software comnares offers and counteroffers, keeps offers confidential, and pronounces a (5) at the mid-ccint between tile deFendant's offer and the claimant's demand.

25.4 Are the following statements [rue Or false? Find reasons fury-our answers iII B opposite and the email above.

Online mediation is a formal and binding process.

~ The arlj udicaror passes email responses between parries online.

3 Online mediation is commonly used to resolve construction disputes, 4 The defendant and the claimant are independent third p..rries.

oar -1-0 1j0U 'fI'

What experience have you had of ADR? Is it supported in a jurisdiction you are familiar with? How? What are the advantages and disadvantages of online mediation?

for more information. look at the Offi,,! of Go~emn"'."t CDmm~Y\:'! at': www.Og e. gD.I.U1<! ~nd the Centre for Hfective Dispute Resolution at: www.cedr.co.ukf.

Professional English in Use Low

57

Corporation Tax

_ Corporation Tax liability in the UK

Corporation Tax is the tax payable on a company's income {for exal11p\e fr0111 invesrrnr.nr in snares) Or gains (for example from the 5<11" of assets) at the stanttory rate. In [his contcxr 'company' is used to refer TO the following, in addition to the more conventional meaning of the word:

• Members' dubs. societies and associations who might have trading activities Or income frOll1 nonmembers, fOT example nmareur sports clubs

• Trade associations, for example the: Association of B[itish Trsvcl Agent' (ABTA), [he r~g\.\la\\lry body for Br-itish rrave] agents

• Housing associations - In the Ul( .ndependenr, not-for-profit bodies that provide low cost '-social housing) for pea plc in ho using need

• Groups of individuals carrying on a business, for example cooperatives) hut not

partnerships (see Unit 19)

All companies resident in the UK are subject to Corporation Tax on [heir profit, in an accounting period. A non-Ul; incorporated compauy may also be subject to Corporauon Tax, if it is managed ,)nel comrolled from within the UK.

Although Companies House notifies the Inland Revenue - the UK tax authority - of the formation of a company on completion of regisrrarion, ir is srill the respon.sihillty of the company to ir-form the Revenue of its e)":lstence and iiability CO pay tax. This muse be- done within ·12 months of the end of the company's accounting period. An accounting period starts when a company first becomes chargeable to. Corporation Tax or when rhe previous accounting period ends. It cannot exceed 12 111011(h$ for the purpose of tax. The normal due dale for the payment of tax is no later than nine months plus one dav after the end of the accounting pcriod~ a.thougb large companies ~ thar is, those With annual profits in excess of ~ stipulated amount

- arc oblige~i to pay their tax t<:ldy by Quarterly Instalment Payments.

__ Word combinations with 'tax'

avoidance

trying legally to minimise the tax to he paid) for e-carnple bj L1Sil1g tax loopholes (ga ps in rhe Ia IV)

demand for money owed in taxes

benefits

advantages

chargeable

rax thar may he levied on profits

bill

due

tax that has to be paid hy d required date

dfic\ency

ways of reduc.ing taxes owed

tax

evasion

illegally trying to not pay tax

a principle permitting Freedom from payment of tax, for example, non-profit-rna king organisations Ina)" claim tax exemption.

Professional English in Use Law

relief

dare at which a tax bcgllls ro be applied

help, allowing a company (or individual) nor [0 pay tax 011 part of their income

form issued by the taxation authorities for declaration of income and allowances, also known as a declaration

nxcrnptiun

point

Tax Return

58

26.1 Replace rhe underlined words and phrases with alternar.ve word, lrorn A opposite. Pay nrtcnrion ro the grammatical context. There is more than one possibility for one of the answers.

Will you formally inform [he Inland Revenue?

2 T believe it's a business. [Ull bv i1 ~OLll? of mvners who share [he- prohts and the work. 3 Tl:e figure named is currently E 1.5" mil [ion.

4 Were going to be taxed on muney received From sales of goods or services aher COStS have

heen dcd lided.

5 How long have we got unnl [he day on which QaYment is t"equired? 6 There'll be xome tax on money from sale Df assets [his year.

7 Don't forget, you'll have to pay tax by payment of part of the total sLIm d.re.

B 1 don't rhmk there'll be much tax on mone\' from investments in (his accoun-ing period. "9 Profits aren't going '[:0 be greater rhan £l million rhis year.

26,.2 Complete (his extract from an advisory email from a soliciror with word combinations from B opposite. Use each combinr tion only once.

OVer -+0 tj0tl ~

How is a corporation's taxable income assessed in a jurisdiction you arc familiar with? What tax benefits are avai 13 ble to corporations?

for mure information 0[\ CmlJ(ll"atio[\ Tax in the UK, go to HM Revenue and Customs at: www.hmrc.gov.uk/.

ProfessIOnal English in Use Law

59

W Mergers and acquisitions

_ Mergers and acquisitions

Steve. jakcs a senior partner in a law fir-m and specialises 111 mergers and acquisitions. He's ralking to a client from japan.

LA merger Or takeover occurs when one company has acquired the majorirv, or even [he entirety-, of the shares of the target company. St(ltutory schemes of arrangement of companies are contained within the Companies Act. In the conventional non-statutory situation, the acquiring cornpanv, or offeror, usually makes an offer ro acquire the shares of the target company, the offeree, and gives the shareholders a fixed tJl1W within which to accept the offer. The offer is iuad« subject to the. -condition th~t \1 w\B be O\l~y be effective \n the event \h"J.~

a specified percentage of the shareholders accept the offer.

The price offered for rhe shares is llsually marc than would ordinarily be obtained ar that po-nr in time for those shares on the stock market. 11,',s constitutes the takeover bid. Of course, if the board of directors doesn't recommend rile offer to its sha-eholders, it's regarded 01$ a hostile takeover.

The freedom (if ccmcanics to merge. in this. \\,,'11Y is. controlled by various statutes, European Community (Eel competition authorities (known as antitrust regulators in the USl1 and the courts, which regulate anti-competitive concentrations of marker power, I_f 8. merger is perrnitreri, clearance is given by the regulatory authorities:

The London Stock Exchanqe

_ Dealing disclosure requirements

'The conduct of takeovers is controlled by rules sec by rhe Ciry Code On Takeovers and Metgers. The Code is administered by the Panel of Takeovers and Mergers, an independent body which draws irs members from major fin:mcial <1nd business institut.nrts. UK rcgisrcrcd and resident public compani-s have- to abide by the Code. Disciplmarv action may rcsulr from certain breaches of the Code, for example failing to disclose dealings in relevant securities of the offeree mmpany. The gllidillg principles behilld the Code "1"0 ,hat sh"reh"lders are tre'l<d faidy and arc nut denied an opporrunitv to decide 011 [he menrs of a takeover, and that shareholders of the same class an: afforded equivalent trcarmcnt by an offeror.'

60

Professional English in Use law

,~"' "::~;'~''IJI!,~~~.iri!!';,~iJ'"'' .

1.1 Complete the [able with words froru A opposite and related forms. Put a Stress mar c In fronr "f the stressed syllable in each word. The first one lias been done for you.

Verb Noun Adjective

regulate

a'cquire

03cqui'sition

....

compere

'7.2 Complete [he article with words from the table above and A opposite. Paj attention to (he grammatical context. There is more rhar; one possibility for one of the anvwer s.

Linde has offered to pay Boe Group shareholders by July 26. The cash 'promise iSSUpp05Cd to pactlyup to £138.4 miilion in compensation if aufi-rtust cover the interim dividend that BOC ~h.reholders

(l) , , , " delay the German group's would.have otherwise received-around July Or August

(2) ,rpprijach]n a move if their company had remained independent. Neither

designed to allay fears thatregulatof5 cool d Linde no, BOC expect (5) objections

, block. Linde's £K2. giHion (3) for .to their proposed (GJ , althou@.they.

r BOe! the German suitor said, that it would pay nave. given warning that the deal is unlikely to be I· up to 2Jp perBOC share if it had not received completed until late summer. They expect regulators

l .. }~) ' ::.:.~ clearance in Europe and America to sign off 011 the deal by the cod. of May.

~,.~. ",.,.",. .,,'" .··.,... ...... c "':. I 1.1>;. !" - -""-' .. -'l'-" .J

The Times

~7.3 Steve Jakes is answering a diem's engulf}' about rhc rules 011 dealing disclosure. Complete

this extract from his email. Look at A and B opposite to help you. Pay attention to the gr;unmatical context.

~~~~~~~~~~~-~~~-----.

Dear Jan,

You asked about dealing disclosure rules in takeovers. Below is a summary of rule 8.3 of the City Code on Takeovers arid Mergers, which everyone must (1)

or risk disciplinary action

'Under the provisions of Rule 8.3 of the City Code On Takeovers and Mergers (the "Code"), lf any person iSI or becomes, "interested" (directly or indirectly) in 1% or more of any

class of "relevant securities" of [the offeror or of] the (2) company, all

'·dealings·' in any "(3) . " of that company (including by means

of an option in respect o.f, or a derivative referenced to. any such "relevant securities") must be publicly (4) by no later than 3.30 pill (London time) on the London business day following the date of the relevant transaction. This requirement will continue

until the date on which the (5) becomes, or is declared, unconditional as to

acceptances, lapses or is otherwise withdrawn or on which the "offer period" otherwise ends. If two or more persons act together pursuant to an agreement Or understanding, whether formal or informal, to acquire an "interest" in "relevant secunties" of [the

(6) or] the offeree company, they will be deemed to be a single person for

the purpose of Rule B.3.'

Ova' +0 t50l.l

How are shareholders' interests protected during takeovers in a jurisdiction you are familiar with? III your opinion, are takeovers adequately regulated. over regulated Or under regulated?

For information on takeovers in the UK, go to: www.thetakeoverpanel.org.uk/.

Profession(ll Engljsh in Use Law

61

r..:l:1 Anti-competitive behaviour

_ Competition law

The Competition Act follows Articles M I nnd 82 of the Europesr. Community (EC) Treaty and is parr of a body or law known as competition law. Cornperirion law regulates anti-competitive conduct rhat harms (he n1arker. such as excluding new competitors MId putting up, or erecnng, barriers to competition, 1t c)~SQ covers abuse of a dominant position, for example by distorting competition or by predatory pricing - when goods are sold at Jess than their cost price to cur

om rival businesses. BrE: competition law: ArnE: antitrust law

BI£·. ·.buse of " domil1Dnt position; I\mL abuse of monopoly power

_ Competition inquiry

Steve Jakes, a lJl( lav v yer) is talking (0 a cHene about how ann-romperirive practices and agreements are dealt v .. -irh,

'The Competition Cum mission was established by' the Competltl\l\1 Act 199R anD its p!"oceDlIre, are \;m·ernd

by provisions of [he Enterprise Acr 2002. Its purposes include carrying out inquiries into anticipated and completed mergers, .and market investiganuns which other aurnoriries, most often rue government watchdog [rile Office of Fair Trading or O~TI or the Secretary uf State, refer TU the Com-nission \X/hE'll a merger inquiry or market investigation reference - popularly known in the media

<1S a referral - is made, the Chairman selects members! including appropriate spEcl;lhsrs~ to serve on the three to five-person group [hac will conduct the inquiry. Procedures are in place to ensure that conflicts of interest are avoided. An adnumstrarive nmerahle is drawn Lip for the inquiry and published on the Commission's website. Ivlerger inquiries can take over six months and marker investigations up to t\!.lO years:

BrE: anti-competitive practices and agreements; AmE: restraint of trode

__ Information gathering, hearings, and remedies

'For inquiries and investjgati(Jns~ information is collected from ;-1 range of sources. Parries nrc compelled to sub-nit documents and the Commission call impose a monetary penalty for non-compliance with irs requirements. lr constitutes an offence to alter, suppress, or destroy documents, or to intentionally provide false or misleading information. Hearings are normally held privately with one parry ar a time, although public and juint heddngs are possible.

The Cornmission ha-, regulatory powers under the Act to make and implement decisions and decide on remedies. flefore there Can he any remedial action, however, the group must reach a rwo-thirds majority chat there is an anti-competitive outcome, such as a :=;ubsranti8~ reducnon In competition resulting from a merger or ;111 ad-verse effect on

" market. The final report will contain remedies for implernentarion through agreed undertakings - that is, binding promises - Of imposed uruer.s which are monitored by [he OtT. Undertakings and orders are enforceable in the COurt, by civil proceedings. Appeals by an aggrieved party ~ one who disagrees with the decision of tbe Commir-ee - may be made to rhe Comperirion AppeaL Tribunal.'

62

Professional English in Use Low

28.1 Choose the correct phrase in brackets to complete t1,C sentences, Look at Band C opposite co

help you.

Nor supplying documents reqm_:s[cu by ,1 corupetirion inquiry can lead (0 (enforceable orders I conflicts of interest I ;.1 monetary penalty).

The inquiry group must reach a majoriry decision that there has been anti-competitive conduct which has led [0 (remedial action J an adverse effect! misleading information) on " market. Remedies decided hy the Commission can he implcmenred through (aggrieved par-ies I agreed undertakings! adverse effect).

28.2 Complete the article. Look or A, P, and C opposite to help you. P<1Y atrenrion to the gramm'ltica[ context. There is more chan one possibi1iry for one of the answers

Supermarket ,"ompetitioD inquiry may break stranglehold of big four

may have been acquired solely to prevent a rival opening a store.

(a) S"p~nnarket, may be forced to 5eJ1 off l1evelupmel1t s1t~ and seale back el':pansieD plans afterthe OfficI:} of Fair Trading ).tlsterday sign:die<1 a full seale 'ecmpedtieu (.TJ .. , .. ,_., ... , ... ,. .. ,. .. ,. .... into the UIC', "big four" greeess.

.(bj "The OFT -sa1d supermarkets had :dril'e.Q. throngh price cuta and ~cnlingl,y imprQv~ qi:l<l1it;Y sud choice. - 'but there was evidence they

fuJd :rilso erected (2) ~ HOd .••• T •••••••••••••

to Reep out new pla~ers and lhtir mQV~ 'into convenience ~ s teres could (3)......... ,..,.,.,.eompetition and

(4) •........................... C0n5Urn<fS.

(0) The (;J ,.., , ,.,.,.,. now

rnteuds 10 (6) the;

big tour - Teseo, Asdar Sainsburys

Coannisstcn inquiry which could last two years. The four chains account for nearly 75% ofthe. £951;m UK grocery m~t, with Teste speaking for more than 30%_

td) The OFT highligbred several areas of concern, including the way supermarkets sell nearly 3,000 popular products at belo\Vcost p'pce. and use local price cuts and promotions to put pressnre on smaller (7) .. ..0,." ... , ... , .. Italso focused on'the stores' increasing buying power. which they can use to drive down the prices paid to suppliers.

Ie) The OFTaIs() wants a fidi (8) .".OC" •• T ••• ,. •••••••••••••••••• into the grocers" -Iandbanks". The supermarkets have required hundreds of development

(0 Tho (9) ... ,.",. ... ""." .. ,. .. ,. .. to the commission is !1. victory for :'>m<111 shopkeepers, \VIm have led the campaign for <U1 inquiry into the. big fours domination. The decision represents a U-tum from last SIlI1lll1CJ, when the OFT said there were no grounds fur a competition inquiry"

(g) YeSTerday OFT chid executive fohn Pingjerou said he had fresh evidence of (10) .

uoncemx, uncovered by new

(1J) .

the Enterprise Act 2002, which I ',

(.12) .", .. " the supermarkets

to hand over documents

28.3 Which paragraphs (a-g) from the article above allege evidence of:

predatory pricing?

2 anu-cornpetitive conduct? (rwo p~lragraplls)

3 "bust of a dorninanr position? (rwo paragraphs)

Look ar A opposite to help you.

OVer""o ':fOU

What procedures are in place to check anti-competitive conduct in a jurisdiction you are familiar with? How effective are they? Describe a recent case as if to a foreign COlleague.

For information on UK competition law, go 10: www.competition-commission.org.ukl and www.oftgov.uk/. For information on EU competition policy. go to: http://ec.europa.eu/comm/competilion[index_en.htm[

Professional English in Use law

63

Bl Tort 1 . personal injury claim

_Tort

A tort is a civil, not criminal, wrong, which excludes breach of contract. A ton

entitles a person injured by damage or loss resulting frorn the [On to claim damages in compensation. Tort L,-1W has been built upon decisions made ill reponed court cases. Torts inciuuc, for example.

• negligence - the breach of a duty of care which is owed to " claimant, who in consequence su_ffcrs injury or (a) Joss;

• trespass - direct and forcible injury, for example If person A walks over B's LlI1ci without JawfuJ justification or A removes B's goods without perrnissior.;

• defamation - publishing a statement abour someone which lowers the person in the opinion of others. This is known as libc1 when in a permanent form; and slander if it is III speech;

• nuisance ~ for example if A acts in a W;1Y which prevents B from the use and enjoyment

of his land.

In [he Case of product defects causing damage or harm to consumers, strict liability, that 15, legal responsibthry for damage independent of T1egligCllce~ is imposed on producers and suppliers by the Consumer Protection Act, which puts inro effect a European Union Product LJOhlhty Directive.

Note; claimant - formerly known "5 plaintiff (England and \Nales) and pursuer (Scotland]

_ Client briefing notes - personal injury claims

One of rhe clients of a large regional law firm is 'Get Fit', a chain of fitness CEntres. BchHV is an extract irorn draft oncring notes prepared by the law fum, irnended TO inform tnt': managers of 'Get Fir' of rhe potential cost in the event of a successful personal injur y claim in negligence fol[01ving an accident at one of their centres.

A. person who has sustained.an injury at the centre and who believes that they _may have a claim against the company ('Get Fjt') will usually seek advice to assess whether the likely level of damages, i.e. the financial compensation that )Day be awarded, is sufficieatto justify the. risk of pursuing a claim,

The amount of damages, 'known as the quantum, is usually rnade up of two aspects.

General Damages. are paid to compensate the claimant, that is, the person making the claim, .. for the pain and suffering resulting from the injury and tor the effect this has on their life The~e <\amages are diliic1)\t t() assess ""0 gt>,aelIDes are published by the Jurlicial Studies B\)a"id. You may hear these being referred to as the ISS guidelines. Reference- is also made to the level

of-damages awarded by courts inslmilar.cases. .

Special Damages are calculated more obje<.:tively as-these consist of claims for the 'past and future financial loss to the claimant. This typically includes loss of earnings, in addition to the cost of care and necessary equipment required as a-result of the injury.

In some cases, when liability is admitted, it may be appropriate to make interim payments on accountofthe fcf award. Forinstance, the claimant maybe undergoing a course of'medical treatment This will fall into. the special damages category and payment can therefare be made before the final claim IS sertled,

64

Pro(ession(li English in Use Law

29.1 Complete the definirions. Look ar A Opposite to help you. There IS more [hall one possibility for o ne of the auswers .

......... ... .... - a breach of duty rewards other pecJple generally - financ.al compensation for loss or injury

..................... - physical Or economic harm or loss

4 - person who makes. a claim

5 '''''"''''"''.''''''H"'''''H"'- making public a staremenr which harms sonu ones reputation

6 .. . - total legal rcsponsibiliry for an offence which has been commirred

7 ..... , - an .nrcrference with private property

8 ... _, .... , ... , ... , ... ,.. - spoken statement which damages someonc's character

29.2 Complete the cable with words from A and .11 opposite and related forms. Put J stress mur-k in front of the stressed syllable in each word. The first one has been done for you.

Noun Adjecti ve

, slan~erOU5

Islander

defamation

libel

liability

injury

29.3 Corr.picte this lerrer regarding a personal injury claim at a 'Cer Fit' fitness centre. Look at A and B opposite to help you, Pay attcnrico to [he grammatical context. There is more [hall one possibility for three of the answers,

Dear Sirs

Our orient: Ms Paula Kosmaceewskr

Re; Accident at Rothbury 'Get Fit'fitness centre on 8 March 2001

We are instructed by the above-named client with regard to a personal (1)", result of an accident in your Rothbury fitness centre on 8 March.

We are instructed that the circumstances of the accident were that our client was running 011 an exercise machine when the rotating track stopped abruptly and she fell forward and (2) ,.... <c an injuoy to

bott'\ r\la~ (~t'lt shoulder and right kM'2:" A, rne\1lb~ at the ceoee's staff was suromcned by aootber centre. usee The staff member assisted our client Another' member of staff said that the running machine had not been maintained recently. Our client was assisted t:ly centre staff to a taxi and went home. On the 30 March Our client consulted her doctor because 01' the pain and restricted movement in her shoulder and knee as a result of the accident. Her doctor referred her to the hospitaJ for specialist examination and treatment. Our clie-nt is still

(3) . medical treatment and has recovered 80% but is advised by medical consultants that she is

unlikely to recover iOO%

that took place as a

Our client is self-employed as a freelance musician. As a result of the accident she was unable to fulfil ten weeks

D~ contracted WorK and has \4) , .. , ... , ... , . a loss 0'1 (5)

As you are aware, under section 2 of the Occupiers' Ltabintv Act 1957 the occupier of the premises

(6) a duty of (7) . to air visitors to keep the premises and equipment reasonably

safe. Our client's accident results from a faHure to keep equipment sate and a member of staff (8)

liability. Our client has- a valid (9) , .. aqalnst you in (10) ....•...... ... .

Pm(essiollal Eng/isil In Use law

65

Tort 2: clinical negligence

_ Clinical negligence practice

D~J. v~d Jone:.:. "'pl;:';ciJ.ll~S i1\ clinical ncglige:uc .. c. ar. -,1. r-egt(l.l'\ill finn~ J"ilp...1es.on's+ Katrin-c. Mncl.ellan is <1 3rd year law student who is. undertaking a summer work placement in the litigation department at Jameson's. Davie IS descnbing his practice ro Katrina.

David: At Jameson's, claimanrs instruct us! rhar is ro sa y~ individuals come to us, to get an idea of whether they have a potential claim, to find out how strong, their claim is, and what the process will involve. Depending- on that acvice, they may then instruct lIS to pursue the claim on their behalf. The 1ikcly amount of damages h.as to be enough to cover the COSt of investigating a claim.

Katrin»: How do mdiv.duals finance this leg8~ work? Isn't it very expensive?

David: Yes, it can he. I'm always very careful to gtvc clients a fee estimate at the outset, Initially this will just be for the COSt of exploring the claim. This will involve obtaining [he clienrs medical records from rhe relevant general medical practice or hospital. 1 usually go through these before instructing an independent expert (Q prepare a report, The department keeps a register of experts which we use for an impartial, that is, unbiased) opinion, Some clients may have legal expenses insurance or may qualify for Public funding and others may have to fund themselves. In those C3 . ses we us.rally agree a payment schedule with the client. If we do pursue the claim '(his is uSLl~111y on a conditional fee basis. '(hat is, 'no win no fcc', so there is an element of risk. involved.

Katrina: \Vh~u does the success of ~1 cla: ill depend on?

David: Well, obviously [he basis is rhar the claimant has sought medical advice or treatment and believes thar as a result of rhar advice or treatment their health has suffered, We have to show rhar there is a causal link he-ween the two (hings - thar there is causation.

The second essential leg is that the-e has been ,111 element of negligence. Sometimes this involves extremely complicated evidence. Baslcally, we need to demonstrate that the course of action or advice given by rl .. e doctor in [he case in point would not be that advised by a sirnilar.v experienced and reputable body of practitioners. As you can imagine, the role of the expert In all of this is extremely irnporranr, \X"fe rely upon them to explain how the action of the defendant has adversely affected the outcome for the patient.

The other extremely important point is that the claimant must bring the claim within the limitation period. This is Llsually within three years of the event, although thi·s rrrav be extended If the case involves J child or the claimanr has a mental disability.

66

BrE: conditioll"1 fcc basis; ArnE: contillgel1cy fe,' basis

Professional English in Use Law

30.1 Replace the underlined words and phrases with alrernar.vc words and phrases from A opposite.

There is more than one possibility for three of the answers.

1 We have to decide whether there is a possihle GISt'.

2 Has rhe rreatrnenr ~ influenced the health of the client? 31;;i/e look for someone who can give an unprejudiced point of view.

4 It's essential chat we're able to estublisl- a connect.ion between treatment and the negative

effccr upon the cI ienr.

S Once the case has been explored we decide whether to start an acrion. G \Vc have to estirnare the prohable costs of the action.

7 Clinical negligellCe cases may be ch;lrged to clients in proportion to the cbmages recovered. 8 In this instance, the claim would be within [he limitation period.

The solicitor the clients a

fee estimate.

30.2 Comple[e the sentences wirl- verbs from A opposite. P.'JY attention to rhe grammatical context.

The firm . a payment

schedule with the client,

~ The firm

........ the (I.aim )

'The solicitor, ", " .. " .. , the client's

medico I records.

An independent expert .

J report.

5

The dcparrmcnr register of experts.

6

\Y/e ...

the claim

on a cnncliriunal fee basis.

The action of the defcndan t

has ~dverscly the

Outc.{)mt {{J\ the patient.

9

The clai mant must

the claim within [he limitation period.

30.3 Change the spoken statements in 30.2 to passive forms ruorc typical of formal written English, when the focus is on [he actions. and processes rather [han the human agC-~lr. The first one has been done for you.

1 Ib,y..~\.\~D~~.m~.,0~~~,'0..,~..f.~-~ .. ~~tlr:D~y~"p.y..ib~ .. ?p\i0.i:tPr: ..

2 3

4

6

7 .

8. 9.

Pro(essional Engti:;h rn Use Law

67

Forming a contract 1

._. Basic principles

The basic principles of conrract law In the English system arise from established custom and rules and are fundamenral co all areas of law in pracnce. Reference is made to these principles in drafting and interpreting the provisions Df anv legal agrccITIcn~, such as a lease, ~1 loan agreement~ a sales agreement, ::1 consulrancy agreement, a hire purchase agreement, 3 hire contract, Or" service contract, ere, The principles of contract law will determine whether and at whnr point a binding agreement has been made he-ween the parries concerned.

Note: The words contract and agreement are inrerchanqeable in the examples above For example, a loan agreement / loan contract.

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Formation of a contract

Formation of a contract requires the pr~st'llce of four essential elements:

• Offer

The contract must cOl\ta~l1 the basic ccrms of tl-c i:'Wl.:.c:mclI.t arid be. capable. of acceptance

wirhour further negoriarior. This does not mcn n that the iniria l communication between parties will in itself constitute an offer. For example, in an auction situation, the seller, known as the vendor, may make J.1l invitation to treat - invite an offer - by scrting uut

the conditions of sale (for eX;lrnpk when puvmenr will be made) with the exception of the price. The offer is submitted by rhe purchaser, who oilers to purchase at a specified price and will usually incorporate the. terms of [he invitation tu treat into his/hl'r offer,

• Acceptance

There must be an unqualified agreement EO proceed on the basis S.C[ out in the offer and it must he cornrnunicared fO the offeror - the person making r-ic offer - in order to be eftecnvc. If the offeree - the person receiving the offer - stares char he or she accepts the offer subject to contract, that is, some variation of the terms, tlicn no contract is formed. This would l1<.:.;:J qualified acceptance. which constitutes a counter offer.

Issues may arise as to whether rhe acceptance has been communicated. Two rules determine rhis-

• The reception rule applies; to instantaneous forms of communicar.on, for exarnple telephone ellis. The COntract is said to be formed when the acceptance is received by the offeror.

• The postal acceptance rule, where [here is ~1 delay he-tween the communication being

sent and received, for example hy post. The courract formed when the acceptance is

sen t by the offeree.

To avoid unccrtai-nv, the offeror ruay specify the method and riming of <1C.xepwnce. Agreement on essential terms, for example price and dcliverv, must he certain anc nor \"ague.

• Consideration

For a contract to be cnforccab.c something of value must be given, for example a price, even if ir is of nominal value, say £ L

• Intention

It is assumed that contracting partie- intend to create legal relations, particularly in cororoercial circumstances. This is] how-ever, <-1 rebuttal presumption - an assunpricn rhnr can be conrradicred - if there is contrary evidence.

Professio(Ju[ Eflglis-h in Use Low

31 ~ 1 Complete the conversariuns with the correct legal agreement from A apposite.

( __ ~_lh_"_r_di_d_t_he_(_I_I 'L~

_cover? _f

~ \Y,le renred a C3r for a week in Austria.

The ofncc'.r:; windows urc alwavs dlny, i \'Jam: I:hera de"J.\w.d re.g,\lbrly bv a firm of window cleaners.

You'll need a good

(2)

J I W~Hl.T to buy 8 new car but we C8n'[ afford to pay the whole price at once. l'm going to p<I) in monthly instalments.

You'll need to check rhe ir.reresr rare on rhc

131. . ..

\Ve're going [0 be liv'ing in London for abour 18 months, so we'r-e g0111g '("0 rent n ftlL

·~/bl,k{. sure yol,,_\ gd a re.aSQ1\:c\Gk,

14). )

Try [(J get the belt (5) ..... ... .. ........ ...... . ~

,-)_r(_lI_'_c:_"_'_fr_(_'n_'_)_-O_ll_r_b_~_l1_k_. )

l'm going to have to borrow a large sum of money for about three rears.

31,2 Make word combinations from R opposite U'S-lng words from the box.

contrarv offer conditions of avoid s"le
p8rtlE'S essential contracring terms contract
counte: Ll ncerra intv evidence subject to rebuttal <lil81i1ied acceptance presurnpuon

31.3 Find answer» to these FAQs from a law firm's wchsire. Find lTJSOns for vour answers in R opposite.

1 Builaing "work started en a. major construcnon project Before all' the elements .of the contract bad been agreed. Bot~ parties expected that reaGhin9 an agreement woulB not be a problem. i':;Iowever" final agreer.nenE was never readied ana ev.eo[l]allv.: the dairnarnts stopped work and claimed for work ciane, The.defendant» -counjer-clalmed for the breach (braakI in' the contract.

unuer English law, was there a t;ontract1

2 Helena applied for shares I~ a company. The shares were allotted to heranc a notice' of al10tm-emt was posted to her. It never arrived,

Und-er English law." ·had .she become, a snarebnlaer or n'ot?

3 Two wml\r)e .• went regularly to bi~go sessions together and hod a~ arranpement to share "'i\'natev~r t'ney won .. enE! 0f"ttrem WDn a bOhaOLa (extra) 'pA1:e.·of £ll1:Q'V., ShE-. clalm:ed ~t was not.coverec by the slaarrtng.a,"ang.ement.

Ull~'er, English -I,j3'W"; was'fh~[r agreement legallv bindi"n$J:?

Ova' .f-o 'f01J ""~"

What would be the answers to the questions above in a legal system you are familiar with? What other legal issue, might arise? What ar e the basic elements of a contract in a jurisdiction you are familiar with?

To look at a recent law report on a contract dispute concerning offer and acceptance, see:

Pickfords Ltd v Celestica Ltd [2003] EWCA Civ 1741 at: www.bailii.org/databases.html

Professional English in Use Low

69

Form i ng a contract 2

~ Form of contract

A binding contracr must he:

• in the form required by the law;

• between parties with the capacity to ccntracr ~ chat is, legally capable to contract - or made by agents or representatives of the contracting parties with the authority to act.

It sbould be:

• enforceable ill the event [hat one of The conrracting parties fails ro perform the contract, Ir .nay he'

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• made in writing;

• made orally;

• implied from conduct! rhar is, by the behaviour of rhe contracting parries.

However, rhe law does require that some agreements are made inwriting. This is i.suallv because registration is required for [he agreement to be effective and the relevant registry requires a written agreement. Examples of agreements tu he made in writing include;

• contracts for the sale of land;

• conrracrs of guarantee;

• contracts for rransfcr of shares;

• contracts V\,h1Cb must be made by deed, for eX~1_lllple a lease for more than three years, A simple contract rcqui-es consideration - the price in exchange for a promise ro do somcthing- and becomes effective On execution, generally when it is signed. In contrast,

a contract by deed does nor require consideration. A deed has different formal execution requirements depending on the contracting parries. For example, a deed may need to

be affixed with a seal - a printed cornpany stamp - if one parry is a limited company. Common law requires that ;J deed is delivered. This determ1nes rhc date front 'which the parties are hound. It must be clear on the r<lcE of 8- deed that it is executed by the parties

as a deed. Deeds may contain standard wording about execution. for example:

This document IS executed as a deed and is delivered and has effect at the date written at the beginning of it.

Void or voidable or unenforceable contracts

S(:lmerimes a contract ruav be defe c rtivc and may consequently be void ur voidable or unenforceable.

A contract m,ly he void - that iS1 no contract exists - if OIlE, or borh, of the parries 15 not recOl;!,nised in law CIS having legal capacity to consent to a contract, for example minors

- young pcop.c under 18 - or persons wuh certified mental incapacity.

A contract is voidable, that is, it 111ay he avoided, or cancelled, by one of [he parries if thcrt- is some defect in irs formation. For example, if the contract for the sale of land

is not in writing, the par-ies (:;111 either ignore the defect and treat the contract <1S fully binding, or one of the parries can use the defecr as a means for setting the contract aside.

Some contracts may be neither void nor voidable bur cannot he enforced in a court

of law, for example payment of a gambling debt. Lapse of time may render a contract unenforceable. The limitation period for a legal action brought under a deed is usuallv 12 years from the date of occurrence of the cause of action. An action on 8. simple COntract is barred from being raised after six years.

Profes.sional £ng!~s1-1 in Us;e Lew

32.1 Replace the uudexlincd words and ph(ao;<:, in

,1 solicitor's conversation with his client with alter-native words and pbrase,~ rrom A opposite Pay attention to the grammatical context, There is more than one possibilirv for [\0\'0 of the answers .

Soliciror: Does she have the [1 J pUlver (0 act as

his agent ill this agreement?

Client: Yes, she's acting 011 his behalf.

Solicitor; You understand that you can't (ely on an ora I agreement. The contract needs to be (2) on paRte When do YO\J want the contract to (3) C01ne into Dperatibn?

Client: They want the deed (4) hlgl1ed seoled and delivered I1\' 31 July, We've had some problems ill the past with suppliers letting us down. Can vcu make sure

this contract Will be (5) binding?

Solicitor: \Xle1l_l use a (6) recognised set of words staring, that the proviSlons art: lcf;al1y binding in the agreemenr we draw up For you.

barred brought

req.ured treated

32.2 Cnrr.plete the sentences with words from the box. Look at A and B opposite to hdp you.

n~cognised set aside

delivered executed

performed rendered

huunc.l consented

enforced implied

1 The contract W·.lS ..

............. 11ne.n1orceahle. '"iter 12 vears.

2 The contract was redUllcally voidable but the parries it ~lS billding.

3 BeCHlse of the limitation period, you are from bringing 3D action.

4 The other party has w the rerms of the contract.

5 The: contract was by the court because it was defective.

6 Although there was no wri-ten agreement, the cou-t decided the conduct of the parries a corurucr.

7 Registration of the transfer of land is

.0. by the Jaw.

32 .. 3 Complete [he definitions. Look at 11 opposite ro help you.

time when an actionable cvcr r happened

- 3:11FlUlH of rime which is availabfe for someone to

starr legc.l proceedings

- th e passing of a peri od 0 f yen rs

OVer +0 l;i0U ,~"

What agreements must be made in writing in a jurisdfctton you are familiar with? What sort of problems can arise? How are they dealt with?

To look at recent law reports on failure to execute a formal contract, see Bryen a Langley Ltd v Boston [2005] EWCA Clv 973 and Harvey Shopfitters Ltd v ADI Ltd [2003) EWCA Civ 1757 at: www.bailii.org/databases.html

Profe-ssfona[ Ef1glis-h iii Use Law

71

Structu re of a com mercial contract

~ Structure of a commercial contract

Most written conrmcrs nave a similar STructure consisting of certain essenria l clauses, irrespective of the subject matter of the contract. The general parrern of paragraphs can be:

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Heading

For example, 'Distribution Agreement'.

Commencement and Date

Usually a commercial contract contains 3. brief introduction which describes the nature of the agreement; for example 'This Agreement for the sale of ... ' or 'This Share Agreement

The commencement clause will state the date on which the provisions, or conditions of the contract, are to come into effect. The date is usually inserted in the relevant space at completion - the last stage in the formation of a contract.

Parties

The full details of parties are set out. In the case of a company, the registered number is included. This remains unchanged during the life of the company despite any changes of name or registered office.

Recitals

Also known as Background or Preamble. These paragraphs are traditionally introduced by the word WHEREAS (conventionally, key wards are in capital letters or have an initial capital). The recitals consist of a statement of background facts and the reasons why parties are to enter into the contract. Related or preceding transactions may be referred to. If a later nlspute arises concerning the operative part, the recitals may be used to determine construction, that is. interpret intentions

Operative provisions

Often introduced by the expression 'The Parties Hereby Agree as follows .".' Or similar words, for example 'Whereby it is Agreed as follows .. ,' These words signal the start of the operative part of the contract, contai ning variousclauses which create rights- and obi igations, or create and transfer interests in property, Operative provisions in more complex agreements may refer to more detailed Schedules (sec below).

Definitions

This section states the meaning to be attributed to terms essential-to the contract - the defined terms. Most defined terms are conventionally given capital initial letters, for example Security Documents or Completion Date. In the absence of a definition, words within the contract will be given their ordinary and natural mean; ng.

Interpretation

The aim of this section is to assist in the interpretation and construction of the whole contract by referring to specific uses. There are a number of provisions included in most contracts, for example 'Words denoting the singular include the plural meaning und vice veers a '.

Conditions precedent

These p .. e-conditions must be satisfied in order for the agreement, or the relevant parts of it, to come into effect) for example the' grant of planning permission. The conditions precedent clause stipulates, or imposes, obligations on the relevant party to procure the satisfaction of the condition and provide a date by which tune the condition precedent must be satisfied. It is usual for an agreement to terminate automatically if this is not achieved by the specified date.

Consideration (see Unit 31)

This sets out the consideration provided by the parties.

Other operative clauses (see Unit 35) Including, for example, warranties, limitation and exclusion clauses, and other standard clauses such as governing law.

Schedules

Sections at the end of the contract conta.ning specific provisions and documents, for example the Transfer Deed in a contract for the sale of land,

Pro{€ssion(J/ English in Use Law

33.1 Dec.de which parr of 8 contract described in A opposite these extracts have come from.

"the Schedule" The Schedule in four Parts annexed and signed as relative to this Agreement.

"the Buyer" shall mean the purchaser of the goods from the Company,

The consideration for the sale and purchase of the Contract Shares shall be the net asset value of the Company {subject to.i.) plus Three hundred and fifty thousand pounds for goodwill subject. to adjustment as follows",

WHEREAS the Vendors have. agreed to sell to the Purchaser, and the Purchaser has agreed to purchase, the entire issued share capital of Green Boots Limited ("the Company") on tile terms set out in this Agreemer.t.

4

TIDS AGREEMENT is made the I 5L day of October 2007 BETWEEN Green Boots Limited having its registered office at 104 Warren Court, Beesto-r, (hereinafter referred to as

"the Purchasers" of the first part) and Matching Socks Limited having its registered office at 6 Heel Street, Damley, (herei nafter referred to as "the Vendors" of the second part)

The sale and purchase hereby agreed is conditional upon and subject [0 the following conditions being satisfied 011 or before the Completion Date:c-

(i) the Vendors exhibiting to the Purchasers" Solicitors a valid marketable lease in the name of the Company free from any encumbrances to the Property;

The provisions set out in the Fourth Schedule shall have effect and the parties shall undertake their respective obligations as specified therein,

8

THEREFORE the parties Have Agreed and Hereby CONTR/,CT ANTI AGREE as follows:~

33.2 Replace the underlined words and phrases .virh alternative words and ph[il.,,(_':~ from A opposite.

Then: is rr orc than one possibility for one of the answers.

, In S})\tc of tb~. difkrc.nc-e:; OC(Wet':l:" the parti.es at thl.:- Start of n~/;\_)tiati·ons, their intention was to form an agreement,

2 \Y,lcl [he Parties, in this wav agree to purchase the Contract Shares.

3 If a dispute arises with reference to the satisfaction of the- pre-conditions, rhc Purchasers may cancel the agreement.

4 \"xlirhout the specified JOCLLn1CnrS~ [he agreement cannot COn1t into effect. 5 Terms denoting masculine rdcn . .nccs it-elude female and the opposite.

PJ"o(eo;;o;;iullol EIlg.lidl in Use Low

73

-r.,...--

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Express and implied terms

Express terms

Express terms arc set out and stipulated expressly ill the contract. For example;

The Seller will wtthin a period of6 months from the date of deli wry of Goods, where Goods which are proved to the reasonable satisfaction of both parties to be damaged or defective or not 10 corrp Iy with the agreed specification due to defects in materials or workmanship or to faulty design, repair, or at its sole discretion replace, such Gooris, subject to the following conditions:

~ ..

A condit-Ion -IS an essential term of the contract. 1f il condition is nor performed, it may constitute a substantial breach of contract and allow [he other party to repudiate the contract, that is, treat the contract as discharged or terminated. It may also give rise to a claim for damageso If all rhe conditions are performed) [he contract is. performed.

A warranty is ;1 term which is "e-condary to the main purpose of (he contract, A breach of warranty does nor in itself pcrmir rhe other party to treat the contrarr ~1S discharged, altbougb it may allow the party to me for damages in the event that loss j, suffered, \Vhcn deciding whether a party is entitled ro re-purliart- 11 contract, courts mar try to determine the intentions of the parries with reg<Hd to the terms. For example, the court.'> night look ar theCOnl1n_c.ili~l\ importance of a term, in reration 10 a particular trade, and examine the seriousness of the consequences of a breach. If statements made by parties before a contract is made are nOT inre-rded to be legally hinding, for example the stared age of an obiect offered for sale, they are usually known ;15 representations. jf a representation later [Urns our to be false, this cannot give rise to breach of cont-act but .nsread to a possible action for misrepresentation.

Implied terms

Implied terms are not made express within the contract but may be implied into the contract in the fullo\ving \V8. y.s;.:

• by custom - a term can only be imp.ierl intx: a Contract b~' custom if there is no express term to the conrrarv. These mav be terms which are customary in the market in whicl. the COntract is made or' have been i~l_ previous dealings between th~ parries.

• by statute - various statures imply terms into different specific contracts. For example, the condition that employment contracts will be automatically transferred is implied under statute ill the Contract for the sale of a business. III a sa.e of goods contract there are implied conditions that rhe seller has the right to sell, that the good, corresponc with the descnprion, arc reasonably

-fit tor the purpose l and are of sarisfactorv quality, A contract far the lease of a furnished flat automatically contains .1 specific implied term that the flat be reasonably fir for habitation.

• by common law - by the intention of rhe parties, if it is a term which is necessary (0 make [he contract work,

Profe~simlQl Erlgfish ill Use Luw

34.1

Replace the underlined words and phrases in (he written contract term bc.~ow wi,th nlrcrnarivc words and phrases from A opposite. sc each word or phrase only once. fhere IS more than one pllsqhility for one of the answers

8.1 (1) In the situatjon that the Goods have been manufactured by the Seller and are found to be (2) broken or imperfect, the Seller shall (3) mend or (4) if it chooses to do so (5) ~ defective Goods free of charge (6) in less than 2 years from the (7) time the goods are received (8) depending on the following (9) !m1lli:

8.1.1 the Buyer notifying the Seller in writing immediately upon the (10) faults becoming apparent;

8.1.2 the defect being (11) because of the (12) incorrect design, materials or workmanship' of the 'Seller;

34.2 Complete the definitions. Look at A opposite to help ~·Oll. There is more [han 011(' pnsslhiliry for one of the answers.

. - breaking a contractual condition

........ - refuse to carrv Out obligations under i1 contract because [he other party bas not kept to [he essential [~nI1S ·0£ rhe contract

..... - end ~1 can rr~1Ct

4 . - ca rrv our ~111 the terms of a contract

34.3 Complete the table wirh rhe appropriare noun form of words taken from A opposite. Pur a stress mark in fronr of the stressed svllable in each word. The first one h"s been clone fCir "OLI.

Verb Noun

stipu1Ia"(.~on

'stipulate

perform

rr-pudiatr

rerminate

discharge

34.4 All of the verbs in the box above, except one, collocate with (I contract or tbe contract,

\Xihj'-.:h n . .:rh does nor? Look ar A to hdp you. Which noun does the odd one om collocare v v irh?

34.5 A solicitor is talking to her assistant about a phone call with a client. Replace the underlined words and phrases with alternative words and phrases from A and B opposite.

He says the terms of the- (1) guaranree have been breuched and his business wants W sue for 12) compensation. The contract (312.)'.'; then if the goods are found to be defective, [hey'11 be repaired or replaced, and the seller is rdllslnb to dn either. Of course, these conditions may also he (4) set out in <l law. \",\'{:'11 need to look ar [he contract to ensure there's no (5) written term 16) ,aYin~ rhe opposire. Can you check if his company has had (7) earlier agreernents with the seller?

ProfeSSional Engli~h in Use law

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76

Exclusion, limitation and standard clauses

Exclusion and limitation clauses

Commercial coruracrs may seek ro exclude liability for specific categories of damage and to lirn it liability for breach of conrracr. for example:

10.2.5 The Company will be under no liability for any defect wising or introduced by a Buyer in the course of storage or handling of the products where that Buyer acts as agent or distributor of the Company's products.

10.3 The Company shall not be liable whatsoever for any consequential or indirect loss suffered by the Buyer whether this loss arises £'om breach of duty in contract or tort Or in any other way (incmorng loss arising irom ilrc Company's negligence). Non-el.ballstivl; illustrations of consequential or indirect loss would be: loss of profits; loss of contracts; loss of goodwill; damage to property of the Buyer or anyone else, and personal irjury 10 tile Buyer or anyone else (except so far as such injury is attributable to the Company's negligence).

Parries assume that the terms of an exclusion clause will be binding if they arc contained within a signed written contract. However, legislation imposes [imits on the use of unfair contract terms. One of (he- two parries may have greater bargaining power than the other Of may try to bring conditions into (he contract whose significance is not realised br [he other parry, Disputes arise around clauses which purport to, rhnr is, intend ro, limit or exclude oblig;8.t"lons attaching to p;:Irtits ro the conrract. Courts are generaily called upon to construe, or interpret, the meaning of such clauses.

Note: damage - harm done to objects and properly: damages - money claimed In compensation f()r 'n(HTn done

non-exhaustive illustrations - an incomplete list of examples

Standard clauses

Standard clauses, also known as boiler-plate clauses, arc generally towards the end of most agreements and frcqllE"nrly include the following.

• A force majeure. clause, which ai.ms to release part~es &Olll liabihty for named risks outside their reasonable control. Non-exhaustive cx;:unples arc. acts of God, tire, flood, earthquake, war, rIO[, explosion, breakdown of machinery. strikes, and lockouts.

• A rime of the essence clause, which makes it clear whether or not the time limits contained in a contract are essential conditions.

• An assignment clause, which sets nut the p:Htl'es' rights to transfer Of assign contractual rights to third parties and any need for prior written consent.

• A severance clause, which provides rhar the other parts of an agreement continue to be in force in the event that some of the provisions are held .llegal or unenforceable.

• A choice uf governing I'''''' and iurisdiction danse, which specifics, t~e juri,d\Ctlon ;;lld law which will govern and construe the conrractin the event of a dispute.

• A language clause, which specifies. rhe language which will prevail if the conrracr is uanstmed.

I BrE: boikr-plate; AmE: boilerplate

Professional English in Use law

35.1 Replace (he underlined words and phrases in (he exclusion clause below with alternative words and phrases from A opposite, There is more than one possibility for one of the answers.

9.4 Except as provided in Condition 83, the Seller will (1) not bear responsihility to the Buyer (2) at all (whether in contract, tort (including (3) carelessness), breach of st. tutory (4) obligation Or otherwise) lor any (5) hann or for any direct, indirect or (6) resulting loss (all three of which terms include, but are not limited to, pure

economic lDss, lass af profits, loss of business, loss of (7) ~ood reputation and like loss) (8) ~ or in connection with:

9.4.1 any (9) failrlre ofany of tile express or i rnplied terms of the Contract by the Seller;

35.2 Complete the smndard clausus below Look or B opposite ro help you, by attention to rhe grammatical cor.text.

The Company shall not be liable for any failure to deliver the Goods arising from circumstances

.. .,~ .d

2

Time for payment shall be

'1It5< 1 _ .X . "'fiI ~"!: ... Q54!C )j! ~_

The contract between the Buyer and the Seller for the sale of Goods shall not be

transferred, without the of the Seller.

5

4 This.Agreement shall be _g0vemed by and c in accordance with the law of England

and the parties hereby submit to the exclusive.. ofllie English coucts ..

6

This Agreement is drawn up in the Engl ish language. If this Agreement is translated into another ..................... _ .... , the. English language text shall in any event , ... , ...

35.3 Which of the above clauses is a Force majeure clause?

2 a severn nee c lau se?

over 1"0 l10tl

c.r

How does the I~w regulate exclusion clauses in a jurisdiction you are familiar with? Compare the different types of contract terms in a legal system you know with those set out here.

To look at a recent law report on a contract dispute concerninq an cxctuslon clause, see Price Waterhouse (a firm) v the University of Keele [20041 EWCA Civ 583 at: www.bailii.org/databases.hlml

Professional Engli.';h in use Law

. or

77

Privity of contract, discharge, and remedies

Privity of contract

The principle of privity of contract means that il third party can neither be bound by

nor enforce a term of J. C011tnlCt [0 which rhev are not a parry, even .hougb the contract was intended to confer a benefit OIl rhern. However, since rhe enacrmer.r of the Conrract (Rights of Third Parties} Acr 1999, s.uch a parry may be able to enforce contractual rigjus uepcnding 0[1 the circumstances. If appropriate, itls now usual for contracts to rnciude a clause which prnvides rhar such rights are not to apply.

There arc other ways in whicn a third party G1I1 be affecteu by [he terms of a contract:

• /1.. contract n1~r}' he made by an agent 011 behalf of his principal. Such a contract may he enforced by and against the pr-iru-ipa].

• it is usual for a conrracr to coirain an expr'css provision rebring til assignment. The oblig'at}ons under cont-act cannot be assigned, t1"'13.[ is, Transferred, without the consent of " parry entitled to the benefit of such obligations.

• 1n novation of contract, a subsequent agrcemCll[ berween the original parties and J rhird parry may have the effect of entirely replacing the original contract.

I _ Discharge of contract

78

Parries may he released from their contractual obligations, that IS, may be discharged, by performance, by breach, by a~rccment~ or by frustration.

]f <1 contract is substantially performed, the. terms are entirely carried our and there 1"-

110 right to repudiate [he contract, that is, to reject ft. If a contract is partly performed,

a breach of condition IS committed. However; if the innocent parry accepts [he partial performance, a claim [0 remuneration mav be raised in ~1 COurt. If there is defective performance, for example a condition is breached, the innocent parry rnay have the right [() repudiate the ccnrract and treat it as terminated Once he or she: has communicated acceptance of the breach of CQTltraCL

A contract may be discharged by agreement between the- parries ill ,1 process known as. accord and satisfaction. If it becomes impossible (() perform, for example due to (he nonoccurrence of a particular event which forms the basis of the contract, or the clcarh (]F a party! the COntract is discharged by frustration.

Remedies for breach of contract

An award for damages - moncv claimed as compensation for loss - is rhe prirnarv remedy for a parry w-ho suffers a breach of contract. In some ci rcumstances, the

courts rna)' use their discretion to compel a defaulting party to perform his contracruul obligations. This is known as a decree of specific performance. It rna)" not be appropriate If the oblig~ln()11 is not suflicicnrly clearly defined, or if enforcement wo.ild require the continual supervision of the court over a long period of rime. 111 other circumstances,

rue COurt may grant an injunctior; to restrain d parrv flOm breaking rue contract. In certain circumstances, for example misrepresentation, parries may rescind, that Is, cancel, a contract and by rescission be rc .. stored [Q rhe same position rhev were ill be-fore the

contract was made. C

Nate: unliquidated damage, - the sum of money is fixed by the court. liquidated damages - the amount is specified in a clause in the contract.

Profe!ision(ll English j('J U-,;e Law

36.1

Comj)IEre the definicions, Look at A opposite to help you, f~

1 .. , ~ a person wno represents ancrher in matter') rcianng to a contract

2 . H " .. - a person who, ,11 rh ough nor part)' to a (fall5ac[[rlll between two

others, is in some way aff,t'cted by it

3 .... ,' - the rclariunslup berwer:u parries [0 a corn-act

"',¥hlen rn3k~s the contract enforceable bet\veen them

4 _,.,... . H - a transaction in which ~l new COntract is agreed hy ~ln parties to replace an

existing contract

5 6. 7 ". 8

S

- a clause stating 13 spcclflc condition ill a conrracr

....... - to comoel the performance of a condition - to give money or advantage (0 someone

. .... - contractual duties

. - the legal rransfer of duries

6.2 A solicitor hus given her assistant some .nsrrucuons. Replace the underlined word, and phrases in her notes witn auernarivc words and pllLClses lrorn B opposite. Pny.arn-nnon to the g(aIl1.~natic3! context,

Bapprew &£0

jan_e, !vl~r'it:'.:.

tppeo. L~p .s.OW-f: l1o.~~,m~(M ~...ate5. -t-vm"_', ~1 ;V![I'('C ~7".at~v_g I I.tl~d (~[l!!l,. ~(!l.o. 1,..')0(:, &v\'b:t t-hf. faU.c'.·I~I~ ~~(f'_st!.{)_,fLS- 0:1')/..( 00- bl)CR 1:0 o;,,.e)

IhCtvJt.s, AC"..Jt1..:"'/

JJ agreed to build au extension on Mrs B's house for a f xed sum. He did part of tile work bUI wouldn't come back to finish external walls. She believes he went to work on another site, JJ says he broke

his leg. Mrs B needed to move into the house and eventually completed the br.ildlr g herself, using building materials, left an the ~i.te by JJ. JJ ~s now :;.uing her to recover the value of wcrk done and tho::. materials used. She says he broke the contract,

I Can she be .set fre~ from her agreement?

2 Can she claim there was a I'aultlll the carrving <lut of the contract"

Has n breach of condit jon Of a breach of'warrun-y taken Dlace'! 4 Has the contract been completel~ fll!~lled or only partly?

5 Did she iet him know that she agreed to (he hrcak jn_ the ~()ntract? (., Can she refi..lse~G carry gut her part. qf the ccurract?

7 I." the contract ended because il ean~t posslblv be fulfilled?

8 Can JJ claim repaymenl of financial cost~ for the materials Mrs B used and for the value of work done,'? _,

~-~- ... zi!

D __ J "" -"'"

.. _¥I 4A 4'S! AlA •.

,3 Choose the correct word or phrase in brackets to complete the sentences. Look ar C OPPi)S)tr.- to help yon.

A contract \llay be (r'tstrai~~t'dlrescinded/conl-pc!(ed} \f the court finds rht:re '..vao; misrcprcsenrarion of the facts.

2 Courts rnav LISe (rescissiun'mlsrepresl'lltation/di"CIctioll,) to grant damages.

3 If a party (5uttcfsigranrsicompcis) ~1 hreact , the courts may award cornpcnsarion.

4 An injunction was (petfctmed/rcsciuded/granredj to enforce 3. term in the: COntract.

5 The court compelled the parry in breach CO Iresc[ssioninlisrepreSell(ation/srecific performance},

OVer..f-o IjOIJ ."J

What wlluld tw tne answer> 10 Ihe questilJns in 36.2 in " jurisdkfion vou "r<~ familiar with? How arc contracts dist'ha,,!cd in fhal jurisdicl'ion?

To look ;II the C,mtr'J<:t (Rights of Third Parties) Act 1999. go to: www.opsi.gov.uk/a(:ts.htm

Profes$ionr:Ji English In Use Law

79

lID

-

Standard terms in the sale and supply of goods

Using standard terms

Alice Glenn, a solicitor) has been invited by rhr local Chamber of Commerce ro give" talk to a group of young entrepreneurs on using standard terms in business transactions.

'res cxrrcmcly co.nrnon for standard terms and conditions of business to be used bv companies "Nhose trade inyolvcs r;;:nte.ring \nto Hl\merOW; similar rransactions, either as a supplier or purchaser. The aim is to srandardisc how Commercial nansacrions are to be effected, so

as [0 produce l,ln~fofmity and ~llClta-s.e eff)cJency, and reduce the need for derailed ncgotiarion

ill e.ich rransaction hv producrino of standard terms favourable to the company.

The standard terms of any company will alway« he subjer.r to legal restrictions, either statutory Or common law. The terms must be regularly reviewed (() ensure that they don't conflict with new legal developments and that they continue to reflect the aims of (he company.'

_ Incorporating terms

'Because it's a basic principle of COntract law that new terms cannot be introduced after

.1 b\Y\di.ng contra..:t has oc-en made, 'i-he propo5e.d stan.dard terms J_l1u~t be 111c-o-.:porate.d

mro the offer. For a seller then, it will be essential to ensure that an offer to buy is On

the seller's terms, for example on a standard order form which incorporates [he seller's standard terms and conr.itio-is. The offer train the buyer can tl-eu. be confidently accepted by the se\ler wltbDl1( the m:::cd for further QLI~'l~lf1c·;n)on. Ho\\;tvcr, an app"cln:l1r 'acceptance' which is stated to be 'on the following terms' could actually const.rure a counter offer and [cad to an unwelcome hattie of the forms, when both parries s-eek to 11npose their 0'\\1[1 standard terms,

In order to avoid such situations, sellers generally incorporate standard terms in all their cornmunications, 1l1dudnlg C8.WIOgUES) brochures, confiruxnions of order" and delivery notes, In the event of doubt that standard terms have been effectively incorporated into <l. contract ar the offer/acceptance: stage, it may be possible to show that they have been incorporated during the. course of de;'_lling between the parries, for exarnple where there has been regular and consistent trading berwcen the parties.

The object of standard rerrns and conditions is often [0 limit the liohility of the seller, or to increase it in the case of standard condit-inn:; produl.,xd by the bllyt::r. S·tJch bmitat)l)~l or exclusion of liability is affected by statutory provisions. In addition, these may impose implied rcrms and conditions 111 contracts for the supply of goods and services

in such a way which overrides the provision of some standard terms and condiuons. The Sale of Good, Act 1979, which has been amended by the Sale dad Supplv of Goods (0 Consumers Regulations 20021, imposes Implied rerms in contract- for the sale of gDods~ including warranties rhar the goods suld are tfree from undisclosed charges Or encumbrances (Iiabiliry Or charge) and thar the huver will enjoy quiet possession of

the goods.' In other words, If you buy somerhingJ you should he able ro lise it witnour inrerfercnce. In 111USt of the relevant statutes, there is a distinction made between consumer contracts and those which are between businesses.'

'these Reguldtions implement" Directive of the Furopean Parliament.

80

Profes,~ion(]l English in Use Law

37.1 Make word combinations using <I word Or phrase from each box. Then use appropriate word combinations to complete (he sentences below. Look or A opposite (0 help VOLL

enter into produce reduce reflect subject to terms

use

conflict with

uniformity

legal restrictions favourable to standard terms transactions

tile aims of

the need for

legal developments

The foliowlIlg provisions set Out the entire financial liability of XYZ Ltd

Customers are invited to purchase goods On an applicable order form or otherwise in writing

to... .. . (0 make an offer.

The lnterpretarior- or Definitions section of the $rJ.llJtlrJ Terms ts intended to ..................................................................... discussion about the meaning of terms and to avoid ambiguity

4 It is imporrunr that. rhe Standard Terms and Conditions of Sale

....... , , , , , , , , , , , ,... . of your organisation, bur they also need to be

amended in rhe lighr of anv Ch~"i'_ges to the law.

37.2 Complete rhe notes taken by" member of (he audience at Alice Glenn's talk. Look at 11 opposite to help you

me %e ofst~Mm'~ Te~

a 6~ch orner o r , ".............. ". of ~ ~.I.<Dt~tio'" fo' goo'" ~!:I the bC<(jer fCD"'- ~ cov«~.v'i:J

s"a,L be ~w·".e~ to be a" offev btl the bv,l:ju <~,~ect to tVie coMlti.o"".

:? lV\.tpli.Ed ~l'i.tD iltlLw~tYtl0ts for t~t s(l.~e of gooD~; L$ th~ folLowi~ tEI'Y1A: t!tJ~t t~t ~elley

has H,e .l5~t to ~eLL H1t goo", a"" that the!:! Me fret frovlA 0"( cMarge<

3 Nathl"'-fj ,,,. t~e cOMltiD"" shall be D" of Ll.blLltlJ for ct,.th 0'

l'er~o""L lvJ"''tl cause" b(j tho CD"/'~~"lJ's ~5LC2W·~e.

-4 A"ti co"tr.ct behvtevc the cO"'-l'0"i:J ~",ct t~e c""tOI"\\tV s,"oeM ~ove the ~t~Ma w. coMlti.o"".

5 A tro ""act",v, '",llL be trtatect as a coVctYact "vJe.ss It ls ",a~e l" the

cw."" of ~ bl.<slwoss, v.vw! is Or\, lv,tegYa L l'D'rt of tile bc<sl",ess ltseLf

" \l'/l1tV\. tv/D "P~ rtU5 ~a.jl w~th eClcYi otl-1er U5~V\f! t~ti!" 0'1'11-'" resJl~c.Hve tf:rJtV~! G1i1W! these te""", cw.flkt, there .",at! be a 'battle of the forMS' with offer ~vcd ...

Pm{C55iono! Englisl~ m Us-e Law

81

I I

I

II I

'I

I

82

Licensing agreements and computer programs

Licences and software products

Alice Glenn, a solicitor, is- ralklng to a Dutch trainee about licensing agreements) also known as licence agreements.

"We work in a number of sectors with licensors and licensees, esrablishmp; compliance programmes for licensing and distribution, and advrsing 011 licensing revenues. in [he computer software Sl'UO r~ the J U thoriscd licensor grants a licence to a purchaser of the software products, under the terms of the licence. The grant of such a licence is ofren held, or deemed, to enter into effect with the initial insrallarion by the purchaser of the product in their computer, or even upon breaking the seal of the packaging enclosing the product. 1n the U~ this is known as a shrink-wrap license. ,",,'hell this happens, the purchaser is deemed to accept rhe terms and conditions enshrined within the licence.

Computer programs are spccificallv protecred by copyright law 1....

in the UK under the Copyright, Designs and Patents Act 1988 as subsequently amended. The- Act provides tha- 'copying~ a programme, or anything else fallJJlg within the definition of 'literary works', will be a breach of copyright.

The aim. Qf software licences is to permit the licensee (0 copy the software ac-; is necessary for the successful LIse of the producr, whilsr restricting the unauthorised use of the software. A software licence for products sojd in mass will at necessity be non-exclusive, J.S other licences with the same terms will be granted ro other purchasers of that product. In contrast, the purchase by a business of bespoke sofrware, rhar 151 made to order software, usually involves the negotiation of a licence 'which allows usc by multiple systems, 311d therefore: copying, ~llthough the number of users 3nd their geographical location, as well as the permitted use, may well be specified. The Licensor will usually reserve the right to enter into similar licences with other purchasers. In such licences, the liability clause will often be the subject of much negotiarion arid the means for enforcing it will be of concern to rhe licensor,'

BrE:" licence; AmE: a license; BrE and AmE: to license

Exclusion and limitation clauses

'As with any other contract, the licence will conrain expres" terms (see lInir 34). These must, however, be interpreted against a background of statutory regu'arion. The hccnscr cannot contract out of these, although the standard terms of S{)il1C;'. software licences may claim, or profess, to limit the liability uf the supplier for loss or damages ~uising from the l\se of the software. The extent to which such clauses will be successful depends upon [he loss in respect of which a claim is l11J.Je~ and wherher or not negllgence is involved. As you're <1\V-'HE'.les not p(lsslb~e (0 exclude liabiliry for death Or injury due to negligence. Software: licences differ crucially from other COPYright permissions in that statutory regulation which has been developed alongside the developing technolugy ha.';i restricted the extent to which the permissions may control use. For example', the Copyright (Computer Programmes) Regulation, 1992 and [he Copyright and Related Rights Regulations 2003 confer rights upon licensees which cannot be contracrualiy excluded.'

Professro(jQI EngJi'Sh in Us€ Law

38.1 Replace the underlined words and phrases in [he following clauses from software licensing contracts with alternative words and phrases from A opposite. Pay attention to the grammatical context. There is more than one possibility for two of [he answers.

The purchaser of the Licence agrees to uphold these copyrights.

By opening Ole Package or installing the product, tile Licensee agrees to be bound by all the terms and conditions of this Agreement.

4

5

6

The Licensee may terminate this ufficial dDCLUllent permitting LISE:' at any time by d~troying the Software together with all ccoies.

~"-- .-

~

#,. JB._ ~.!!!!.Jt ;_!'I3'!t_~·!..............,._ ~._ . .1 ... !'I!!_- .. ,.,--5--.--_ .. P-ooolM_1

The computer program provided along with tID, Licence is licensed, not sold, to you by Caklyn Enterprises for use only according t.o the c<mditions of this Licence.

------~.,..........,...,_...,.,.,~

8

If the Software is installed on a common disk and used by many.systems, an additional "Licence must be given by Ca\<1-l'n Enterprise, for each system.

-

--

9

10 If ally provision of this Licence shall be held by a court of competent jurisdiction to be contrary [Q law, that provision will be put into effect to the maximum exrenr permissible.

38.2 Choose the correct word in brackets to complete the sentences. Look at A and B opposirc to help you.

You agree rhar you will not cause or (cxcludc/pcrmir/resrricr] the removal of any copyright norices from the liceJ1s-ed software.

2 The licensor (reserves/confars/punr .. its) anv rig11ts nor expressly granted to the licensee.

Statutory regulations pn.:vr..:nt you from (perruitting,bjJro£es.singjexduding) liability under the contract.

4 The agreemenr (professed!decmcdlconf~rrcdJ to grant an exclusive licence,

5 Use of rhe supplied software is (permined/n:strictlxVr-cscrved) to a single machine.

6 The licensee is (professed/pemurred/deemed) to agree to the terms of the licence when they open the scfrware packagjng.

ovo: -1-0 I:fOtl'fJI

What regulations govern licensing agreements in a jurisdiction you are familiar with? In what situations do licensees or licensors require the services of a lawyer?

To look at a case arising from a software agreement go to: St Albans City and District Council v International Computers Ltd [1996]4 All ER 481 at www.bailii.org/databases.html

Pr-o(essiom11 English in U~e Low

B3

Commercial leases

~ Interest in property

~ina Kuhn, .a partner in a Bristol law firm's Real Estate, or Property, Drparrrnenr, is t:-lIking to a foreign client about cccuncrc.al leases,

'In the UK, it'S possible to own either a freehold or leasehold inrcresr In property. Freehold refers to the estate interest where ownership may be held for nn unlimired rime without paying rent. A freehold owner, the frceho.der, may enter into an agreement to lease or let the property, pcrrnirring occupation for a fixed term, or time, by another person OT cornpar.y who then becomes the tenant, Jb:;o known 35 the lessee or leaseholder. The freeholder l' the landlord, or the lessor. Some commercial properties) such as shopping centres, may have <1 complex structure of ownership with a chain of leases So that the occupier, for eX3mple the O\\"J1c-r of a STl1;;J1I shop in the centre, may sub-lease or underlet from the rcnanr and be an uudcr-rcnanr, Or even a SUb-LU1dcr~ tenant of the freeholder, who is the hcacl landlorc."

I

I

1-

Terms of a commercial lease

I 1

<A commercial renancYI the agreement by which a person Can occupy a property, may be protected hy the security provisions of the statutory regime. This means that the business tenant ill occupation at rhc End of tenure of the ccnrrucrual term will have a statutory right to a renewal of the lease unless the landlord is a ble to show that rhe srarurory gro.mds exempting the right apply. An example of such grounds would be the landlord', intention to occupy the property himself or to dcmolisb or subsrarmsllv redevelop rhe property. Parries may, of l:OLll"SC, agree ro Opt Out of the staruroiy regime.

Cornrnercial lenses are oft-en lengthYl complex documents as tht'y scr our (he respective obligations of the parties in relation to [he propertv, .:I11d rhcsc may vary, Such obligations would normally include.

• the amount of rent) the method by which it is [0 be paid, penalties for late payment, and a rent review clause establishing when renr may be increased or decreased,

• pruvl:::.ions tor the: insurance and maintenance of tbe property;

• restrictions on dealing with (he property, that is) whether [he tenant is to be allowed '[0

transfer interest in rhe propl'rty to someone else) or to underlet (0 an under-tenant.

Also included among [he obligations would be required conditions, permissions and covenants (agreements), and provisions for yielding up the lease at the end of the term,

A lease must be for a term certain, that is) a fixed period. However, it' may include a break clause which sets our a Break Date, either on a hxcd date or 011 a rolling basis, for example anytime after a fixed date. After thiv date, the party with the benefit of the brenk option mav exercise the hrcak by serving notice and may terminate the lease early.'

_ Obtaininq leasehold interest

'\Xlhere a :new lease is to be granted, the landlord's solicitors will usually produce a draft lease for approval or amendment by the tenant's soliotor. In circumstances where 8- renanr is assigning an existing lease, that is, transferring his interest in [he property·, the new tenant will take the leas" as it is and the landlord's consent to the a<signmcnt will usually have to be obtained. This may be subject to certain conditions, such 35 the provision of guarantors for the performance of the lease - normally the outgoing tenant who signs J. guarantee III favour of the landlord - or the paymenr of :) rent deposit, depending upon the conditions ser Out in the lease.'

84

Professiona! English in Use Lew

39.1 Complete the definitions. Look at A opposite to help YULI. There is morethun one possibiliry for one of the answers.

a person who IS granted " lease by the freeholder property" that is held for an indefinite period

- ,1 person who sub-leases from <1 tenant

39.2 J~ solicitor is holding an lniti'1l meeting with new clients. Replace the underlined words and phrases With nlrernutve words and phrases from B arid C opposite. There IS more rhan one possibility for one of (he answers.

\Y./c'vc gm some: questions we'd like you to help LIS with. What righrs would we ha 1'0 for ~ertill~ the lease extended on the shop?

3

As renan ts, could we ~ rh e property to someone else to rent?

\X/hen can there be a mauge to the rent? 1

It depends on whether the landlord gives reasons excusing your rights. Or whether there's been agreement [0 contract out

of the leO"l"lmlve ru1es for tenancy secunry provisions. I'll need to see the lease before I can advise you properly.

4

You would need the ln-rdlord's

il,.t?,.reenlenr and [here may be condinons. r Unfortunately, I've not been sent a copy

of the lease yet.

39.3 Cornplere this extract h-orn a drafr lease. Look at A, Jl and C opposite to help you. Words with an initial capiral lcrrcr an' assumed to be defined terms of [he lease.

TENANT'S BREAK CLAOSE: ROLLING BREAK 1. TENA;U'S RIGHT TO BREAK

t.! for the avoidance of doubt, references in this (!) 10 the Tenant and to the

(2) .,...... are to the persons named us such in this lease and to their respective successors in. title

12 In this cluuse

(a) (3) ....

.......................... means the date on which this lease 511['111 (4) ".

pursuant (0 [his clause. and

(b) Break Notice means a norice served. pursuant to clause 1.4.

i.3 The Break Notice shall specify the Brenk Date but shall not specify ns the Break Dare a date which is. either; (aJ earlier (han [SPECIFY· EARLIEST BREAK DATE]. or

(b) earlier than [six] months after the dntc on which the Brenk Notice is deemed to be have been served on the Landlord;

I 4 Subject to clause 15 , the (5)

....... _ _ _ on (be Landlord.

1.5 A Break Notice shal; be of nn effect if:

(a) the Tenant has assigned this leas.e. before it serves the Break Notice (whether or not it has made an

application to HM Land Registry 10 register the (7) ), or

ove«: -1-0 '10ll

may terminate this lease at" any time by (6) ...

How is the relationship between landlord and tenant regulated in a jurisdiction you are familiar with? What sort of problems may arise in leasinq commercial property? How are they resolved?

Prof€"SSJDnai English in Use Law

85

86

Buying and selling commercial property

Commercial convevancinq

Nin;] Kahn, a solicitor specialising in commercial propl'rtY1 is talking to a foreign client about conveyancing - (he transfer of [he owncrshio of properry.

'Tbe prmcip'e of caveat emptor opplies to the n-insicr of property in rhc UK. Contract provisions reinforce this by acknowledging that the purchaser has

had an opportunity to make full invcsrigarion of [he title, rhar is, the right of ownership, and to check the property's physir.-l condition and any other factors which might affcct the property ,HId it., intended use,

Gener~~Uy, a cornrncrcial agent will market ,1 commercial property. The property pamculars, or derails, will specify the terms on whch [he- property, or the lor in the case of ~u-cti\)ns, is to b-e sold, The ~x1.rti.c\'I\·'1~S sh.ow \\'httbl:t" It i~ to be ':io!d by au{:.tion. - s()\d ro the person who rnalees the highcsf offer at an n ucrion - or sold by private treaty - the seller and buyer reach an agreemcn-.'

Note: C(Jveat emptor - the buyer is responsible for checking W081 he buys is in good order

Sale by auction

'If the sale is to be by auction, a legal pack, prepared bv rhe scllers solicitor, will be available to prospective pu-chnsers. It vvill contain the spccia] conditions and the auction conditions relating [Q [he- sale, as well as copies or appropriate searches - documents which prove inspect ron of records, [or ex .. unplc about land use and restrictions on its Lise] such as Local Authority searches and environmental searches. It will also contain planning permissions, warranties, Or guarantees, and other documents n-h-vanr ro rhe property and (0 the transfer uf ownership, such as im!estigmionl or leg:2J.l evidence! of the ,eiler's title to the property.

The prospective purchasers must he '''1.died with tue ,d.lds title anu rhe other information. If necessary, (hey may raise further enquiries in advance Df the bidding for the property, The.: signing of [he sale memorandum by the purchaser Or their agent at the aucrion constitutes. the contract to purchase. Sale, known as completion, when pavrnenr is made and the deed of rrnnsfer is passed to '[he purchaser) usually takes place at ~1 completion date specified in the special conditions.'

Sale by private treaty

'In" 'ale by private treaty, the seller and rhe purchaser may negotiate detailed terms, either direcr.v OJ via agents. The purchaser will consider searches instructed by his solicitor. A full survey may be instructed and the seller will he asked to provide replies to pre-contract enquiries, for example about the property's phvsical starc and the property's boundaries. Comrnerrial propertyc;;ohcitors frequently use published scr-. of commercial propnty pre-contract enquiries. \\7hen the nrincipal terms have been agreed, rhey fTI3Y be set our in a document and circulated as 'Heads of Tem1S'. Thr seiler's soiicitor will then produce a draft contract, ;llso kIlO\Vn;1';; a sale 'lgrccmEllt)\vhich will reflect the Heads of Terms. Conditions of sale common to most property conrracrs, governing, for example, proof of title, how the deposit is dealt witit, erc., may be incorporated into the contract by reference to puhlished Standard Conditiuns.

Once the purchaser is satisfied with all the information and the form of contract, that. is, [he terms and condinons, bas been agreed, [he parties may proceed to exchange contracts. 1l1~S constirutes a conrracrual obligacion to complete the sate Or purchase on the terms

in the contract, and penalties will arise in rhc cvenr of default. A conditional contract, where completion is to take place within a .'pcClfied period of something happening, will LlsLl'-111y contain a longstop dare - a final date - at which point (he parties may rescind the COntract - cancel ir - if the conditinns have not been achieved."

prore5sionoJ Eng{i5h in Use law

40.1 Complete the definitions (1-7) then lise appropriate words to complete the extract from the auction property particulars below lil-;:). Look at A and B opposite ro help vou.

-claw and procedures relating ro the sale and purchase of property

2 - property sold at auction

3 - the right to hold property

4 - offers compe-ing to purchase

.... - the ccntracr [0 purchase docume-ir .......................... - owner of a properry \v ho transfers the ownership for money

- spcc:..:Jf1cd nrr.e when the payment is to be made anc the

propert), deed trans ferred

Brief description of the (a) .. ·.·H·

18 Upper Crishcrnish. Weston, Wiltshire

Name and address of the seller Undisclosed. To be identified in the (b)

ntle Freehold

Name, address and reference of the seller's conveyancer

Gillies and Poacher, 8 Portree Terrace, Chester. sa/GP

Registered or unregistered? Registered at Lond Regisuy Wiftshire. Title absolute. WT793

(e) guarantee

Full title guarantee

40.2 Choose the correct word or phrase in brackets to complete the sentences. Look at C opposite to

help you,

The tpurchaser/scllcr/solicircr) considers searches

Parties may (complete/rescind/exchange) the contract in the event that rbe conditions have not been achieved.

A tfull survey / pre-contract enquiry / sale agreement) is drafted by the se.ler's solicitor. 4 The parries (collsider/exchcmgelillstl'uct) contracts once all rerms are agreed+

5 Standard Conditions can be (!nsrructed/incorpor3.tcdlcompleted) into the contract.

6 The seller is asked to provide replies to (s-orrhes / .nvcsrigarion of the title of the property I pre-contract enq uircs].

7 Terms are (comoleted/negotir.rcd/insrructed] by seller and purchaser.

8 The (investigation of title / full survey! form of contract) is agreed hy hoth parties.

40,3 Re-order rhe sentences in 40.2 above to describe chronologically the possible procedures In a sale by private treaty. Use the linking phrases below. Some activities may rake piece around the same time+ The first one has been done for YOlL

first of all, ,k.rm";;?.~1.~§ ... rJ.~0Q~l:L~P'c,';.~ .. p.Y.~~!!~.r..~tld . .p.!.Jr(b~~"¢lr:, ; [hen usually

________ md _

, After

that)

then it's necessary that .

....................................... and .

. and finally

. However, , ..

ProfeSSional English in Use Law

87

Employment law

~ Employment law

H~~rew -.~s~ar'it~eS

I I

I

ss

The main statutory rights of employees include entitlement to:

knolN-how People Fees o,ntact/ SElar-e.h FAQs For oLir

find us overseas clients

Our- Ernplovr-terrt Law Department is a specialist team. We advls€ on relevant law, employment policy and procedure, and the formation of employment contracts. We assist in tile negotiation and settlement of disputes, and take or defend proceedings before an Employment Tribuna] or In a civil court.

Em ployment law usuanv involves a mixtureof contractual: provisions and leqislatcn regulating the relationship between employer and employee, and governing labour

I relations between employers and trade I unions, for example with regard to couccttva agreements and collective bargaining about conditions of work, Developments in case law and changes to legislation, for example from the implementation of European Ccrnrnurutv directives, affect employers and employees alike, The practice of living and working in different junsc.ctrons means that lawyers also have to refer to international conventions to establish legar requirements.

• a national minimum wage;

• equal pay for like work, that is, broadly similar work:

• a written statement of employment

particulars;

II an itemised pav statement;

• nrne off and hO~ldays;

• statutory sick pay;

.. a healthy and safe working environment; family and parental leave;

protected ri"ghts on transfer of business to another employer (see the Transfer of Undertakings [Protection of Employment] Regulations 2006);

notice of termlnatlon of employment; not to have untawtul deductions from wages;

not to be discrill1inated against on grounds of sex, race, sexual orientation, disability, religion, age, part-time Or fixed term er-iptovmem. or tr-ade un'on rnernber srup

I BrE: labour: ArnE: labor

I BrE: trade uniOI1; ArnE: labor union I

Contract of employment

r ------

lt is usual practice for employers and emproyees to enter into a written agreement wllich sets out th err respective obi igations and rights, and wh ich constitutes a contract of ernplcvment, either at the commencement of employment or shortly before Clauses in the contract generally deal with pay, deductions, hours of work, time off and leave. place of work, absence, confidentiality, restrictions on the actions of an ernplovee once employment is ended" (known as a restrictive covenant), g;ivErig notice; the grievance procedures in the event of job loss, and variation of contract (meaning parties may agree to vary terms of the contract but terms cannot be unneterauv varied, that

t is, by a ne party without agreement)"

Employers are bound by the employment contract and statutor-y regulation as to how

they may deal with employees, particularly in relation to the termination "of employment. Failure to observe such ohliqattons and regulations may give rise to a claim for wrongful disrrnssa! (where the employer- is in breach uf contr-act), unfair dismissal (where the employer has not followed a fair dismissal and disciplinary procedure before terminating the contract), or constructive dtsmrssat (where an employee resigns because of the conduct of his employer). Gross misconduct by the employee, for example theft from the employer, rnay result in summary, that is, Immediate! dismissal. In other circumstances, the employee may' be made redundant, For example if the employer has ceased to carry On business

I BrE' I~ade redundant; AmE: laid off I

Professional E.flgfish if] U~C Law

41.1 h'Like word combinarions from A opposite using words from the box. Then lise appropriate word combinations to complete the definitions below.

employment employment

bargaining Ut110n

fixed tribunal collective

particulars time labour

relations

sick off

rradc term

. - salary paid when all employee cannot work because of illness ..... - restricted period of employment set out ill contract

- organisarion which represents the workers, who are irs. members, in discussions of pay and working conditions with [heir employer

4 . - specialist court dealing in disputes between emplovcrs and

employees

5 . . - written details of a position in a company

6 - negoriations between an employer and a trade union on rerms

and conditions of employment and work

41 .. 2 A lawyer is giving advice to a client about an emplovmcnr conrracr over the phone. Replace the underlined words and phrases with alrcmarive words and phrases from B opposite. There is more than one possibility for one of the answers.

~~ I've looked through the: contract and it seems satisfactory in relation to [L} the DErioe! of warnil1~ that the con[ran is going to end. However; [ think you should look for some adjustment on the (2) clause preventing you workin~ in the same field for three "ears after VOl] \'e left the C0111pOlnv. Other than that, the terms. relating to heing (3) let 0"0. bY" the companv if it fails and (41 being removed from the lob, With the related 15) procedure for Indkin~ a CDI11plalnt and (6) changes being m3de to VOU[ work, are quite Stfillghtfonvard.

41.3 Which type of dismissal may have occurred in the following situations? Look at II opposite co

help YOLI.

An employee decides to leave her iob because she is moved, without consultation, to a new posirionin the company which she regards as a reducrion in her role. A new post covering broadly the same area :?IS hers 15 offered to an outside applicant.

2 An employee is forced to leave his joh because he has arrived at his place of work under the inf.uence of alcohol on several occasions.

3 An employer has 110[ gone throllgb the appropnare procedures before forcmg an employee to leave 1]i5 job.

41.4 Choose rhe correct prefix from the box ro make rhe opposite of the adjectives below.

j un

11011-

il

ir

1 relevant

2 legal

3 lawful

4 restrictive

5 fair

6 srarurory

Pro(essional English in Use Law

89

I 1-

90

Copyrig ht a nd patent

Copyright

Trainees at 0 law firm have been .iskcd to help prepare a section On Intellectual Property (IP)

law for the monrhly e-ncwslerter circulated to clients. Some of [herr prepa.ratory notes are below.

Type of I P interest Copyright

How the interest or right arises

An automatic right arising from statute.

Copyright arises as soon as an original work (literary, dramatic, music~I, or artistic, as defined

in the main UK statute: Cqpyright Designs and Patents Act 1988, and i:ts subsequent amendments) 'IS created and embodied in a speohc media [lor example on film, ina sound recO[din~, in print,

or as an electroni, record). Copydght.also,arise~

in the typography (the layout) (if the publlshed works.

Patent

Type of IP interest Patent

How the interest or right arises

A patent is a territorial right given to the patent holder for a statutory penod of year:s. it must be applied fof in each jurisdlction for which protection is required, I n the UK, it may be granted by the UK Patent Office; in the USA it i,issued by the Patent and Trademark Office.

To be patentable, an invention must

• be novel. that is, not made public anywhere before the filing date on which the application! description is submitted for patent;

• be capable of industrial application, that is. use oTappiication \n some kind oj industry, for example be a process, a material, or a device;

• result from an inventive step. In the U.s, the test is to be nOli-obvious, that is, be something distinctive which could not have been produced by anyone with relatively good knowledge in the relevant area;

• not be an excluded thing 'as. such' (Patents Act l':l77),Rlr example. it cannot be a diswvery.· a sCientific theol1)', an aesthetic creation or. in the UK; a business lI)ethod.

What protection is available?

It is the expression in a particular tangible form which is protected rather than the idea itself.

The cop.yright owner, normally theautno; has exdusive rights, induding the rightsto make copies, to sell copies to the pUbllc, or to give a public performance at the work. The owner may license, usually in writing, the reproduction of th€ warL

Action required

The right cannot be registered.

It is possible to \lSe a copyright symbol (©) followed by the author's name and date to

indicate that it is intended that the work should have copyrlqht protection, 'but it is not necessary to mo this.

What protectign is available?

The Invention becomes a property interest vested in the inventor, which he/she can transfer. by assignment, to another:

It conlers the right to exdutk! otners tom making, using OJ selling the invention,

The import into the UK of a product with a UK patent will be in contravention of the patent

Action reguired

An application should be filed on the Patent Office before any steps are taken to make the invention public.

A patent application may fail or the grant of

a patent can be revoked, that is, removed from the-Register in terms of the Patent ActS 1997, if, for example, a successful application is made to the Court in counter-claim on grounds sudi as:

• the invention is contraPf to ?ubllc poliC':/ or morality (for example. human cloningprocessesl or;

• the. person granted the patent does not have entitlementto it.

Pro(essro!1Q1 Englisl! in Use Law

42.1 Make adjectives frOI11 the 110un5 in brackets. Put" stress mack "' front of the stressed syllable in eacn adjective. Look)l A and p, oppOsite to help you.

-Patent bolders h;-)\,(: \ltrritory) rights over rucir inventions.

2 Co.pyrjg1u is a starutory rig:llr ill;]11 (orJ'gr-n!\v(Jrk.

3 A number of rights fall within (intellectl property, including copyright, design, parent" and trademarks .

4 To be p-MentEd~ an ~n""ltm~'Oll 1n\1S[ have ~ome son of (i_f\dn~;try) \ISC; th~-::; mi.ght ~rrdudt', for example, in agnculrurc.

S Discoveries of clements of the human body are nor (patent).

6 The invention has to be (novelrv) and must not have been disdosc~ before.

42.,2 Find four words in A opposrre thar can be used to rnuke word combinations with 'copy-ighr'.

Then 11se the appropriate words [0 complete the sentences below.

It is essential" to identify the first copvrighr; .., , before Jettrrninrng whether ~1

parricuutr form of work qualines for protection.

The duration of copyright calculated by reference [lJ [he author of the

copyright work.

Copyright .. .. in product design .md in the prcser.rarion of merchandising for

prOlhu::t::i \ikt toys and 'Cosmct~c~_

42.3 Complete the definitions. Look at A and Il opposite to help you.

- a pruperry right that subsists ill certain tangible creative works

2 . - a right that exists as soon as .1 work that em be protected by

copYl.:ight is created tn rr.ntcrial form

,- the transfer of IP rights (ron) the owner of the rights to another person Or

organisaricn

4 5. 6

- n8ving a f1xed material existence .... - the right to own <1 patent

. ..... - the date on which rhe full description of an invention is.

formally applied for

..... - [he criterion for assessing wnethe.l" all mvention is nor an obvious devdoprnenr of what has been done before, In the judgement of someone who is skilled 111 rh« relevant area

B . . - nat having been disclOSEd anywhere clse III the world before

S - the C:1pa-ciry of an ~n\itn~inn to meet the Cf)ter)',i set hi "Statute )11 order for an

application to he gran red .

~2.4 Choose the correct phrase in brackets to complete the sentences. Look at A and II opposite to help VOrL.

Tfle Act generdlv &ives the owner of ccpyrigh, ithe right ro exdllde I exclusive l;g\)IS ! excluding rights) to reproduce the copvrighrcd work and to perform the work publicly.

2 The parent gives (the right (0 exclude J excilldmg rights (0 f exclusive rights to) others from importing the invention.

oer -rO /.jOlt

What is not P" ten table in a jurisdiction you ate familiar with? How may copyright be enforced?

Fot information about the Patent Office in the UK, go to: www.patentgov.uk/; for the US Pa tent and T r<ldemark Office, go to: www.uspto.govlwebloffices/.

Pro(enional En'llisl! ifl I J~P f fl<'J

-

1

\

Trade marks, domain names, and remedies for IP infringemen

Trade marks and domain names

Trainees ar a I<JW firm have been asked [Q help prepare a section On Intellectual Property (IP) law- for the nionrhly c-newslettcr circulated to clients. Some: of rnerr preparatory notes are below

Tl'Pe of IP intere51 1r.demark

How the ihterestlriqht arise,

A trade mark, or mark, needs to be registered at the PatentOffice to be protected.A trademark is territorial. It can be a .sign includic9 words. symbols,,,r picture"

Of a combination of all these elenents, its function is to represent the. good, graphkally and distinguish them from other gQods. Lt is e!i''ientiaUy a badge of crlglrenabling customers to recognise" brand,

A service mark is the seme 085 a trade mark but it jdentif~es 'the' source of a service.

What protection is avail~ble7

To be capable of reqistrerlcn, a trade mark must be original and suffiCl.ntly di,tinctive from any oiher marks far tile same Dr slmllar goods or :;eOli(:.!3. The marl must be specific to th» goods or s-ervices to which it is to apply and

must not be !TIlsleading or contrary to-law or morality I

In the UK, a tredernark can b. enforced to protect the ..

mark's proprietor under rha Irade Marks Act 1 994, which implements the EC (European Community) Irede Mark

djrernve.

Action required

Application to the Trade Mark Registry at the UK ?;It.nt Office for a notional trade mark; or for a CfM (Community Trade Mark) var,d throughout 'the EU lEuropean Union), to QHI M (the Office for Harmunisatitm in the Internal Market - Trade Mark5 and Desjgns); or to the Patent and Trademark Office for-9ranting. of a trademark in the USA.

Not air Irad~ marks a{,en~g~st€,lable, for example where tt1-e shape- results hom the narure of the goads, such as an umbrella

~ "'ork may he li.@~~ 1m autl=i""d us •.

I BrE: trade mark: ArnE, trademark I

1jpeof \P interest Domafn n a me

How the interest/right arises

DomaIn names are ur:lique tntemet addresses which distinguish one computer from all others: concerted to tile Internet, for exemple 90ogle.wm

Top level domains (TLD) include two letto, country code, (ccTLDl.,uch as .u~ and .nl. Genetic TLD, (g'l.Dl include .corn .. o'g, .biz, and .roop. Below lhese are the semnd level domilill nantes, for example- 'McDorialdS' in M{Donalds.LOm

What protection ·rs ava·rlable? Disputes may arise wh~n;

• tVtI'O Dr more. people are entitled to use the Identical trademark in dffferent countries. and each claim the same domain name; Or

.. (] thiril part'1 re'9i,ste~s. 20 ooma\1"'! r.ame the same as, ill very.similar to, a famous name or trademarK, hoping to sel' it or to use the bcsiness value ofa well-known name - a practice known as cybersquattlnq. or net name piracy

Action required

Domain names. call be registered directly at accredited r.egistrars, that ,s, Internet name licensing authorities, or by buying them from lntsmat naming campaflJes. Names are registered for one or more years, often with al1ilual renewal.

Disputes may be retelled to accredited dispute resolution providers, such as the World lntellectuai p,operty Organizatioo !WIPOl. or country registrars .

1_ Remedies for IP infringement

IP rights can be enforced through civil remedies, and m2l~ If'I\100e cT~milla' san-c.ti-cr.s. f;,":,~" Jilia\ r-e:11i.~, the righthol-der can obtain fl'nandar compensation for losses caused by infringement by choo5ing" between damages orcin account of profitswhichthe dafs-idant made from the.infringement

OIl1.r fin. I remedies may include delivery up and destruction of infringing documents.a coert order to reveal relevant infermatlon, or an in~i.Jndion. An interim

92

remedy, 'thai is, a provlsonal on~ may inc!ude all-Interim tn)u'i'\(tion tc stop '01) \rifrmgl'i!9 :activ~, 0 ~ard'l ()fOer to look for evidence of Infringement, and a freezing injundion to freeze the assets of an alleged inf6n.ger before trial.

1f mere"is misrepresentation as to t'ne trade or"lgin of good, loading to damage to the trading goodwill of another person, it' may give rls.e to an action in tort ~ a civil wrong known as 'passing off'.

Professional Englistl in Use Low

43 .. 1 Complete the definitions. Louie at A and B oppcsite to help you .

..... - anything graphic that conveys infor manon, for example numerals) words, letters, packagi ng, sha pe of the gllOds: etc.

- using clear Im~:tgcs, lines, characters, musical notation, internationally recognised colours, etc.

3 c - any sign, represented grapbic<~lly" which is capahle of

distinguishing the goods or services of one business from others

4 - pan of all lnterner address indicating thE type

of organisation or couunv location

5 ,- person or orgarnsnnnn thar interferes with or violates another's rights

6 .. , , , - action v/\lereby ,) person or business registers ~1 oomail1 name and uses it In

bad faith or intends (0 sell it co [hose who have a legitimare interest in the nanie

7 . .. .. - 3 property right :)ssociHtEd with [he attracting of business

custom

8 . . - a ovil action where there has been rnisrepresenraricn of goods

Or services le<ld~ng to lhmnge to (he gDoch.viil of -'1 business

9 court order to stop the movement or sale of assets

10 - tcmporarv COurt order until the [rial

11 - organis::ltions which offer u sen-ice to

investigate complaints and reach decisions.

12 . - a discretionary remedv a vailablc when there

has been infringement of intellectual property, involving the awnrd ro the righthokkT of profits made hom the infringement by rhe defendant

43.2 Replace the underlined ivnrd:i- and phrases in rhis extract from 811 advertisement for a short course for lawyers On trade marks with altemntivc words and phrases frorn A and B opposite.

·~~ersFDrum.COn:!_ .':-

D Register D Events/Courses

D Book tnts event 0 Send. to a colleague

Date/time Venue CPO hours

Course desert potion Course level Delegates

'roptcs covered:

o Jobs D Updates

D Save for late r 0 Print

10 October 2007 10:00 - 17:00 Manchester

5

Introduction to trade marks

Introductory

Far practitioners with no previous knowledqe of this area

• Function of trade marks

• Trad-e marks and (1) product logo recognition

• What i.:> (2) caoable of being recorded; ensuring marks ale (3) ~ different; marks that are (4) ~~ 0'- contrary to the law

• How to register a trade mark; application to the Trade Mark (5} oFfi(:e for ke:ep\ng 1~~m07 \1'1 'tile UK~ re:g~'S-terlng a l6) mark valid i;')!s;rYYJhere \n the EC at tne OHIM

• How to oppose the (7) ~ of a trademark by a reg lstrv How e mark is (8) permitted for use hy others

• Litiqatlon, (9) illeqal use of a riqht, and (10) pretence tha.t goads or bUSiness are those of another

• Relationship between (ll) ..lJ..D.Lq!...Le Internet addresses and trade marks

• Internet-based resources

Ove..r +0 '101.1 ~

What types of trade marks may he registered in a jurisdktion you are familiar with? What types of dispute can arise over domain names?

for information On registered European Community Trade Marks (CTM), go to: http://oami.cu.int(; for the World Intellectual Property Organisation (WIPO).go to: www.wipo.int/about-ip/en/: for the Internet Corporation for Assigned Names and Numbers (lCANN). go to: www.icann.org/.

ProfeSSional English in U:;e Law

93

II!] Information technology law and cybercrime

_ Computer security

Picter den Biernan, a legal practitioner specialising in information technDlogy~ is speaking at a Chamber of Commerce lunch.

TIn sure you'd all agree rhar the devcloprnenr of information technology and c-cornmerce has presented exciting business. oppol.-n.mitles. However, the \ncrea~\ng sQph\stic?.tlOn of dw: systems and applications available to end users has created significant legal challenges to individuals, companies. the leg.slarure, and !eg~ll advisers The technology necessary to access the Internet has also enabled innovative illegal activities. You'll be aware char these include the breach of computer security and unauthorised access to ~l computer commonly known <"IS hncking. There's also the distribution of illegally obtained content from databases, as well as virus writing or virus spreading acnicvcd by attacks on insecure servers \vhil'n belt adequate protectior . Tn the UKl the Computer Misuse Act deals with such illegal use, and also the publication and distribution of material that may he used to aid hacking. Unfortunately, unless you have adequate security systems In place, yuur business is at risk.'

_ Cvbercrirne

'There are cyhercrimes that may affect you persona.lv, such as credit card fraud online, commonly known as credit card scams, and identity ([01 theft, when financial benefit is obtained by deception l.Jslng stoler; persollal information. In (he US/\., fraudsrcr s, as they're known, who lise a stolen identity to commit nC\V crimes) may be charged wi-h what's known ]1) the Stares as aggravated ill theft. The Council of Europe Cybcrcrimc Treaty, also slgm:d by US and Japanj has the aim of international co-operation and mutual assistance in policing.

Other cybercrirne may irnpnrr on your business. There's cyberfraud, such ;IS pharrning, where users are moved ro Jake, non-genuine sites. when rhey try to link to their bona fide bank website, Then there's phi~hing; when a fraudster, by misrcprcscntarion, gets Inrerncr users TO disclose personal information ill reply to Sp<Jn1 email sent unsolicited to a large number of people. lnrerner users call nlso be tricked into money laundering acriviries which aiel the transfer of illegal or stolen money. \

Note: misrepresentation - making a wrong state men t to trick someone into a contract

_ Data protection

'T\w \'·;ay yo\..! coUc_~n~ store, and distributc, information that 'constitutes personal data

On identifiable individuals is now subiccr to Data Protection legislation. If) for example, you ask potential customers to supply their address details via the web in the process of requesting further information concernlng your business, you should also provide the data subject with inforuarion a hour the purpose of collecting the data, the period for which

it will be stored, and who will be in receipt of such data. If your web page contains data relating to specific employees, remember [hat thrs will be i.nfonnation readily available internationally and nariona.ly. You must have rhe consent of the individuals concerned allowing you w make sucn information avauabie. That consent must be informed and freely given. Care must be taken in the management of persunal web servers and server sofrware and dear guidelines given to staff about your Internet policy ill order to avoid falung foul of the law, for example the Defamation Act. FinOllly, III addition [0 ensu-mg that von don'r infringe regulations, you need to consider llOw to future-proof contracts you enter into, hy cor sidcring potentia! and unknown developments which may l1ffect YOUf business.'

94

Professional Engli-sh in Use Law

44.1 Make word combinations from A opposite using words from the box.

users

com purer security spreading;

computer end obtained

breach of insecure unauthorised

adequate legal challenges servers

access illegally activities illegal

misuse security VIrus

44.2 Are the following statements true or false' L.ook ar A opposite to help you. Use appropri;1te word cornbuianons from 44cl [0 explain your answers.

People who use computer applications ;IrE known as hackers. 2 It's a legal challenge to gain unauthorised access to a database+ 3 Secure servers make vir-us spre3ding po.,"sihlc

4 Distributing illegally obrained data is a breach of computer security.

44.3 Compler« the article. Look at Fl opposite to help vou. There is more than one pmsihdlty for one of the answers,

, Pharming is taking ovedrom phlshing

c Inrernatienal cyber-crooks have fo'und- a new way to rip off-the public

F'raudstetS- find ir surpri ~ing1y easy to 'operate

credit card (l) , over [he tntcraet

(2) .H.H. . tricks consumer into providing

coufidenrial details in respOilse to spam email Although banks have. been raising public awareness of the practice by placing wnmings.on webslres, some customers are still taken in by spam emails inviting

them to (1) .. ,." , " "., ,., .. " account information,

But phishing is ao longer as effective as it \VAS) so-

(4) . have developed (5) .,..

whIch does not. involve' spare email and is. harder todetect. The scam redirects U~CI'StQ (6) ..

SItes when they try to access. the~t (7) .

........... bank website, A customer legs on" normally using the address stored in hi,;; or her 'tavouritee' folder, tH what looks like the bank's internet . bank;i:ng sire, 'but the customer is actually redirected

[0 !he fraudster's site,

\\'hemer (he fraudslers are using phishing or pharming. criminal lJroSDCUtiOr:J remains difficult, largely because most (If the criminals are based outside the territory in which the «iorira resides. Extradition proceedings are difficult and rare, although some national Courts may have limited extra-territorial jurisdiction. Phishing legislation may be drafted but the real problem is the cross-border nature of the, fraud. TIle legislation may have no teeth, leaving the perpetrators. almost immune from prosecution .

The fraud. is no longer limited to bank accounts. Recent examples aave had corporate websires cloned to sell non-existent products, or to get consumers to

participate in money (8) activ ities

wh lle bclie¥tng they are dealing with a legitimate organisation.

44.4 Find more- formal expressions in C opposite for:

a human person about whom dam is stored

2 law \vhich governs the usc of computer stored information about individuals 3 willing agreerr enr to something on the basis of relevant knowledge

4 to break the la w

OVa' -1-0 /joa

Wh~t problems arc there for the law in defining and stopping hacking? What problems are there in balancing freedom of expression and ccnsor~hip on the Internet?

To look at Internet law and Policy Forum, go to: www.ilpf.org/. To look at the Council of Europe Cvb~rcrime convention, go to: http://convenlions.coe.int/freaty/en/frcalies/Hlml/185.htm.

To look at the Computer Mi,u,,, Act 1990, go to: www.opsi.gov.uk/acts/acts1990fUkpg;I_19900016~en_l.htm

Professional English in Use Law

The Times

95

.:m Environmental law

, A partner has asked her trainee [0 draft SOme notes on envircnmenral law,

_ International environmental law

96

International environmental law is a fastcdeveloping area affected by scientific discovery "cd opinion It encompasses t.hat. is, includes, both interna1;ional ~ (or convections) incorporated lew national law, and it1ternational cu®omary law (general practice accepted "5 law).

Theee constitute the law 'that. nation ~tate. are obliged to follow Or otherwise suffer sanctions frQtrr the ihteroationallegal community, There is also international diplomacy and non-bindinG in"truments which create guiding principles, such as the 1972 Stockholm Declaration and the 1992 Rio Decl~ratlon.

The main prin.ciples framed in international envlronmentallaw are:

• ",,!luter pays principle - tho cost of damage is carried by tho party responSible

• prBca utionary pri neiple - to act carefully where knowledge is not certain

• ~u6tainable development principle to act in t.he best interest of future generations

'" environment impact @$2e.g!:3ment principle- to use rational planning bt!fore carrying. out cn.:mge-s to the environment; a nd to consider the costs of ecological effects

• Gommon but differentiated responsibility principle for countries to have shared but different responsibilities for the environment

National environ mental law

The critical issu~s of impl@mentatjon, monltorin~ cQmplianc~ and enfoncement have to be addressed within le~al framewQrk5. The current impetus to prokct the environment at a global as well as a local level mea ne that domestic law in t.hie area has an important interaction

with international law. Many jurisdiction" have a body of pollution control laws as well as ~ country plannin~ law. In the UK, planning law consists of: a regulatory mecn@nisrrI with a developed proces" of a pplication for and gra nt of permission: attachin~ conditions to development; a system of appeal; rights of public acceSS to information' and righw of)2l!!zlliL participation<

Planning law has also been used to pursue environmental objectives with the control of development and land through st@tutory regula1;ions for example the Wildlife and Country5ide Ac~ 1981 and Planning (Listed Buildings and Conservation Areas) Regulat;ions 1990.

Note: listed building - building of special historic interest protected from development and demolition

"'l'pllGatlon of en"'ronme"~allaw

Statutory regulation and the role of the various lnE5-titut-ion~ and procedures of laga I raglltatiot1

are frequently complex< The advice of a legal specialist is essential. Due to the potential exto-rt, of amllrOl1mc;'nta[ protection there can be implications for, a wida range of t.raneact.one and industries. Given that environmental Hability ca h have sign incant fmancia I implications, such as dama~es or rl1jUnctiol1s or may even reeult in criminal pro~ecution5, lawyer5 dealing in property transactions Or the acquisition of a bllSine~8i will wieh to ensure trrat;

.. t-he due dili@ence process enc-ompaE>ses .a revi~w of any relevant en~irQnmental fjcenceE:Jo: .. releva nt i3 udtts are instructed'

• and details of any potential, current, or pending enforcement rroceedin~6 involving environmental i0sues are disclosed.

In other circumstances, a client personally affected I;y pollution 01' environmental dama~e may wish to take Civil action in tort to remedy the 5ituation.

Note: due diligence - investiqation of legal title and company documentation

profeSSional Eflgii:;;h ill Use low

45.1 Complete the sentences wirh the principles of environme-ua. law listed in A opposite.

lf you aim to meet rhe needs of the present without making ir difficult or impossible (0 meet'

the needs of the future) this is known ~lS the. . , , .. ,., , .

If you make the individual or rhe organisation rhar caused the environmental damage cover the COSt, th is 'IS known as the .. , ... , ...

\Xlhen all counrries are expected to rnake a contrihurion to envirourne-ua. protecrion , bur according to [heir circumstances, this is known as the

4 If you act to protect the cnviroumcnr in the case of serious harm, even though clear scientific proof of damage not yet available, this is known as the o.

S If you evaluate tI,e Slnt'~hili,y and implicatIons of the pllmned dcveiopn,em of land, this is known as the

45.2 A Llwyer is writing to a colleagre about international environmental law, Replace the underlined words and phrases with words from A, B and C opposite. There is more [han one possibl-liry for two of the ar.swers

----_. __ .. __ ... __ .. _----_._----

~ From: Ta~-eTdsia-w,co.uk ro: C,lurba(6Joldfields"la"w.to_uk

1 ~~~_~_~_: ~_~_:~.~~~.ti?~~ envitonmen"iaTi;-V:;

Cassandra,

You said you were interested in getting an overview of international environmental law. You could take a look at Principle, of International Environmental Law, It's a reasonably comprehensive reference book On regulations relating to environmental

(1) defence and the conservation of natural resources. It covers the institutional and legal (2) "trudure, the (3) written and signed legal agreements between countries, customary law, and all the new case law, as well as Issues like (4) agreement to

carry out what is ordered, implementation, (5) ensuring that the law is obeyed, and dispute settlement. There's a breadth of topics: conservation of biological diversrtv, genetically modified organisms, (6) damage through cootamination control, hazardous substances and activities, waste management and disposal, the Kyoto Protocol, and techniques for the (7) ~ of principles and rules such as enviro~mental impact assessment, liability, and compensation for environmental (8) harm.

45.3 Find words Or phrases in A, f) and c: opposite rhar can be used to make word combinations with the words

Dr phrases below.

review environmental H •• ' ••• '" 2 instruct ..

3 disclose proceedings involving " .," ..

4 suffer. 5 <mach

Professional English in US'e Law

97

Answer key

~ I

1.1 1 Crirninnl law 4 Civil law
2 Public law 5 Substantive low
3 Procedural law
1.2 head of state 4 jurisdiction
2 houses/chalnbcrs 5 authority
3 hierarch), G convenrions 1.3

'legislate

Verh Noun Adjective

I

I I

'authorise

prc'cced

con'vene

'legislature:

pro'cxalnre

con r vention

'legislative

pro I ccdu raj

con'vennonal

'regulate

ac'cede

regu'Iation

ac'cession

I regulatory Or regu'lmoI),

e'Iecr

lcgjslarure accede procedural

2.1 pass/enact

2 enact/pass

3 amend/update.

election

au'thoriry or authori'sation

e'lecred

'authorised

4 repeal 5 codify

6 consolidate

2.2 1 statutory insrrument 3 pre.ssure groups
2 bye-law 4 scrur.msng the provisions
2.3 1 Bill 4 enshrines
2 su hrnirrcd/in trod uced/proposed 5 approved
3 debated 6 re-presented 3.1 bound

2 co-no;i.cier

3 rely On / apply 4 distinguish

3,2

5 cite

(; hinding precedent 7 revised

8 override

7 drofcing

8 undertaken

9 proposc/introducc/su bnut

Verb NOLIn Adjective

a'pplv appli'cation a'pplicable
prc'cede 'precedent pre'ceding
pcrsuade persuasion pcr'suasive
'bind 'binding 98

Professional English in Use Law

3.3

binding applicable

4.1

lvlagistr,~tcs' COLJrr 2 Instance

3 Division

4 I-figh Court of Justice

"3 citation

4 persuasive

5 leapfrog 6 Appcdl House

a'ppcal

Verb Noun - event NllIm - Ilt'rson or artiun

a'ppellanr

4.2

a'ppeal also 'a ppcllntc

'l-ear

'trial

'hearing

I claim

'try

4.3 le, 2e, 3d, 4<1, 5b

1 AppeazAppellare appeal

claimant

4 hearlrry

b uied/hcard

5.1

warrant of arrest

'claim

'claimant

2 indictment

3 summons

1 rea listie prospect 2 n asonable doubt

5,2 cr-minal proceedings; realisric prospect; defence costs; reasonable douht; guilty plea; reduced sentence; severe penalties; indictable offences

5 defence costs

5.3 detained

acquitted appears 4 charge

5.4 i, d, g, a., c, e, b

3 indictable ,,£fences 4 severe penalties

5 sentence/penalty 6 apprehend

b"il

6.1 mspecnor- 5 clisclosu-e

2 counterclaim 6 wime-s sraternenr

3 form of defence practice directions

4 claim form (formerly known as a 'writ of summons' or a 'su-nmor.s")

6.2 adrnir a claim; agree to u St.3y; allocate to ~l regime; enforce the judgment; file- a reply;

lssue a claim, review [he process; serve ~1 claim on; ser ~1 rimernhle: settle differences

Normally the claimant issues a claim and it is served on the defendant.

The defendant mLlSI file a reply, whether it is a defence, an admission, or a request for a time exrension.

Asl.:: the court to agree: to a stay (in proceedings).

4 To give parties an opporrunirv to review the process and make decisions. 5 The claim am can enforce the iudgmcnr in the Magistrates' Courts,

Profess-ionDl English in Usc law

99

I

7.1

unfair dismissal 7 borne by
2 defend 8 broker" settlement
3 respondent 9 parties
4 dalmallt 10 witness sta rernents
5 government agency 11 address
6 wirhdrav .... 'l1 12 refer to , I

8.1

formerly known "5; generally called; referred to as; also known as; defined as

1 generally called 3 defined as

2 formerly known as 4 also known as / referred co as

8.2 1 internal 6 provisions 11 Com-nunitv 16 directive
2 frontiers 7 Treaty 12 regulation 17 Member
free 8 States 13 application
4 movement 9 measures 14 entirety
5 services 10 obligations 15 applicable 8.3

[rue

2 false - community rules take precedence. Community law has supremacy OVer national law.

3 false - the Common Customs Tariff applies to an goods imported into the EU from countries outside the Community like Japan and the USA.

4 true

9.1 1 conveyancing; draw up/draft

2 advocacy; right of audience: a ppcar 3 solicitor; bar-rister

9.2

\ ,',1:0 Noun Noun - person

'train rr.n'nccship or trai'nec
'training
ad'visc ad'vice ad'viser
'practise 'practice prac'titioncr
'specialise ' specialism 'specialist 9.3 degree

2 placement

3 practice/firm/partnership 4 graduated

5 secondrnenr 6 trained

7 specialise B corporntes

10.1 1c, 2a, 3b, 40, 5g, 6d, 7f

I 00 ProfessIonal English in Use Law

10.2 conversion course

2 Bar Vocational Course

chambers

4 pupil master 5 shadow

6 document/pleading/Ian) opinion

pupillages 8 tenancy

9 advocacy

10 exercise righrs of audience ['pracrise' is also possihle) 11 senior harrister

best interests

2 ;-111 parties meering

11.1 best interests; '-111 parties meeting; chargeable work; comprehensive notes; tenus agreed; fcc earner

terms agreed

4 chargeable work

11.2 a ,i\\nifican( proportion of a large parr of

a substantial amount of

11.3 sound files with the minutes on

copying everyone ll1! circulating them bv crnai] 3 gerring a hard copy of

4 marks up

1 2.1 Districr] udge (Magisrrates' Courr)

2 Circuit J udgc

12.2

the Bench

the J udiciarv

12.3 suspended

2 .rr pnsonmcnr 3 applicant

5 rype rhcm lip

6 ~ct back to them 7 get (In

Lord of Appeal in Ordinary 4 Lord Justice of Appeal

the judicia: office

4 penal establishment

4 unJerwklng 5 injunction

6 interim injunction

1 3.1 provides/offers

2 includes/comprises

3 incorporates/comprises

4 c(>nrains/includes/comprises 5 led bv / headed up (by)

'3.2 draw on f hayl..: rdcvant cxpcrtl::.~; ~Y,l\'e excursive access, nave f draw on -extenS)Ve E'X'Perience; provide a comprehensive service; make significOlnt investment; resource speciJlist knowledge

has exrensive experience made significant mvestmenr dra VI on reluvan r expertise

1 3.3 personnel

2 submit a render

3 professional indemnity cover

14.1

office manual? department manual (or JUSt 'manual') precedent letters

disbursC111CnrS

4 indemnirv insurance premium 5 external auditor

4 resource specialist knowledge

5 provide a comprehensive service

4 transfer knowhow measure outputs

proressional Eng/isll in Use law

101

14.2 In ,1 clrenr care letter YOU should ...

J - refer to the matter on which vou arc instructed to act ...

b - (refer to) the agreed target ti~le,c"le, such as there is.

C - inform the cI lent of who will be undertaking wurk fur them ...

d - give the nome of the person with overall responsibility for conduct of the matter.

e - 'H provide" fee estimate for work by staff and should also give the details of any

anticipated disbursements, such as court fees, search fees, and other costs. If it isn't possible to give a quote at the outset of a matter you mny, for example, suggest that you obtain their approval hefore undertaking any work in excess of an agreed limit.

f - ... agree to provide an esrirnate ar the earliest opportunity.

14.3 tc, 2d, 30. 40, 5h

15.1

muuev laundering one-off transaction forestalling

4 as soon as is rt"dsorlably pradrcable 5 exercised all due diligence

6 disclosures

15.2 comply with

2 Proceed, of

3 an for another person 4 contravening

5 fine

6 rook all rcnsonublc steps 7 exercised all due diligence 8 foresta 11 ing

9 disclosure

10 suspect

11 3\VJ_rc

12 satisfactory evidence 13 nominated

14 transaction

16.1 Ic, 2d. 3r. 4e, Sa, 5h

16.2 2 Ellipsis - ... [cbting to the "bow [project Lon', Torger Compollv - franklin Red Limited) ... 3 Substitution of 'this aspect' for "conditions. to which Completion will he subject'

4 E)lipsis - .. , read the enclosed (Heads nf Terms) carefully ...

5 Subsrirurion of 'the same" for 'the enclosed' Heads of Terms

16.3 true - ... enclosed find the further amended Heads of Terms ...

2 true - You will see that I have left this aspect <15 OriginallY drafted for the time being, 3 false - As previously discussed, you will let me have further instructions ...

4 false - I should be grateful if \OU could read the enclosed carcfull. and confirm that \'OU arc happy with the carne,

16.4 I am pleased to enclose I Please find enclosed

2 prC'"lously discussed

3 please ler me know if you h8,\"C any particllbr concerns I ple<1se ler me know if we can be of further assistance / if you have anv YUt:stiOTLS, please 00 not hesitate to give me a call

4 r should/would be grateful if I'OU could

5 I look forward to hearing from you Ishoml)' I as SOOIl as possible) II look forward to our meeting

102

Professional English in Us-e Law

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