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#contract #law #terms
The classification of the terms implied by the SGA 1979 ss 13–15 (but note not s 12) as conditions has been altered as a result of s 15A, which was incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994.

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organisations or groups can only bring an action when they are claiming that their rights (as distinct legal persons) have been violated. For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation. Thus in [ case ], the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a virtually unfettered discretion on the Ministry of Defence, which represented a breach of the ECHR, art 8.
Answer
Liberty v UK (2009) 48 EHRR 1


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on (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation. Thus in <span>Liberty v UK (2009) 48 EHRR 1, the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a virtually unfettered discretion on the

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organisations or groups can only bring an action when they are claiming that their rights (as distinct legal persons) have been violated. For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when [...]. Thus in Liberty v UK (2009) 48 EHRR 1, the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a virtually unfettered discretion on the Ministry of Defence, which represented a breach of the ECHR, art 8.
Answer
it can claim that a state is violating the rights that it enjoys itself as an organisation


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r rights (as distinct legal persons) have been violated. For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people whose rights may have been violated by a contracting state. It can only bring an action when <span>it can claim that a state is violating the rights that it enjoys itself as an organisation. Thus in Liberty v UK (2009) 48 EHRR 1, the NGO successfully complained that the interception of its communications under the Interception of Communications Act 1985, s 3(2) conferred a

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the concept of what a 'person' is has raised some difficult issues for the ECtHR. The question of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to take account of regional and religious sensitivities relating to abortion: [ case ].
Answer
Vô v France (2005) 40 EHRR 12


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n of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to take account of regional and religious sensitivities relating to abortion: <span>Vô v France (2005) 40 EHRR 12.<span><body><html>

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the concept of what a 'person' is has raised some difficult issues for the ECtHR. The question of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to [...]: Vô v France (2005) 40 EHRR 12.
Answer
take account of regional and religious sensitivities relating to abortion


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t a 'person' is has raised some difficult issues for the ECtHR. The question of the 'right to life' of the foetus in relation to the ECHR, art 2 has proven almost impossible to resolve, and the court has arguably avoided the issue in order to <span>take account of regional and religious sensitivities relating to abortion: Vô v France (2005) 40 EHRR 12.<span><body><html>

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The [ statute ] sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be brought.
Answer
ECHR, art 35


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The ECHR, art 35 sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be

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The ECHR, art [...] sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be brought.
Answer
35


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The ECHR, art 35 sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be

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The ECHR, art 35 sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that [...].
Answer
domestic remedies must be exhausted before an ECHR action can be brought


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The ECHR, art 35 sets out eight criteria for admissibility. These are largely procedural. The only requirement of any significance is that domestic remedies must be exhausted before an ECHR action can be brought.

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In [ case ], the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer
Lawless v Ireland (1979-80) 1 EHRR 15


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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects th

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art [...] was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer
15(1)


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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the [ statute ] was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer
ECHR, art 15(1)


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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an [...] which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

Answer
exceptional situation of crisis or emergency


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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.'

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an exceptional situation of crisis or emergency which [...] and constitutes a threat to the organised life of the community of which the State is composed.'

Answer
affects the whole population


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d><head>In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.' <html>

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In Lawless v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to:

'… an exceptional situation of crisis or emergency which affects the whole population and [...].'

Answer
constitutes a threat to the organised life of the community of which the State is composed


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less v Ireland (1979-80) 1 EHRR 15, the phrase 'threatening the life of the nation' in the ECHR, art 15(1) was interpreted as referring to: '… an exceptional situation of crisis or emergency which affects the whole population and <span>constitutes a threat to the organised life of the community of which the State is composed.' <span><body><html>

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In [ case ], the ECtHR said:

'… [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'

Answer
Soering v UK (1989) 11 EHRR 439


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In Soering v UK (1989) 11 EHRR 439, the ECtHR said: '… [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requiremen

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In Soering v UK (1989) 11 EHRR 439, the ECtHR said:

'… [I]nherent in the whole of the Convention is a search for [...].'

Answer
a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights


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In Soering v UK (1989) 11 EHRR 439, the ECtHR said: '… [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that [...]. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.
Answer
the interference with the Convention right has some basis in national law


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in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that <span>the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interfe

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the [ case ] case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.
Answer
Sunday Times v UK (1979-80) 2 EHRR 245


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ent that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the <span>Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an in

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that [...], in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.
Answer
the law is accessible


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rbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that <span>the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is [...]. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.
Answer
sufficiently clear


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aw. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is <span>sufficiently clear. Furthermore, it must be shown that the legal basis is formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a

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Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law' or 'in accordance with the law'. Strasbourg has established an important test for determining this point. First, it must be shown that the interference with the Convention right has some basis in national law. The requirement that the respondent state must be able to point toa specific legal rule or regime which authorises its conduct gives the individual protection against arbitrary interferences with relevant rights. Second, as identified by the ECtHR in the Sunday Times v UK (1979-80) 2 EHRR 245 case (discussed in Chapter 12), the identified legal basis must have certain qualities of law. It must be shown that the law is accessible, in that individuals must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is [...].
Answer
formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail


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be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, it must be shown that the legal basis is sufficiently clear. Furthermore, it must be shown that the legal basis is <span>formulated in such a way that a person can foresee, to a degree that is reasonable in the circumstances, the consequences which a given action will entail.<span><body><html>

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The applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.
Answer
Hashman and Harrup v UK (2000) 30 EHRR 241


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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not i

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Hashman and Harrup v UK (2000) 30 EHRR 241
Answer
The applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.


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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not i

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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, [...]. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.
Answer
the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them


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ml>Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that the interference had not been prescribed by law.<html>

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Conversely, in Hashman and Harrup v UK (2000) 30 EHRR 241, the applicants were brought before a magistrates' court, where they were bound over to keep the peace following their disruption of a fox hunt. Here, the binding over orders were not imposed as a sanction for past unlawful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that [...].
Answer
the interference had not been prescribed by law


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ful conduct, and it could not therefore be said that what the applicants were being bound over not to do would have been apparent to them. The Strasbourg court therefore held that there had been a breach of the ECHR, art 10, on the basis that <span>the interference had not been prescribed by law.<span><body><html>

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under the [ statute ]: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.
Answer
ECHR, art 34


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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against

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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals [...]' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.
Answer
claiming to be a victim of a violation


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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citi

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under the ECHR, art 34: ‘[...] claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.
Answer
any person, non-governmental organisation or group of individuals


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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the ECHR,

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under the ECHR, art 34: ‘any person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the [ statute ], there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention.
Answer
ECHR, art 1


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person, non-governmental organisation or group of individuals claiming to be a victim of a violation' of a Convention right by a contracting state may bring an application against that state before the ECtHR. Note that under the terms of the <span>ECHR, art 1, there is no requirement of citizenship of a signatory state; the test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be

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Exceptionally, a person can make a claim for acts that have occurred outside the geographical jurisdiction of a contracting state. In [ case ], which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essentially territorial notion of jurisdiction, extra-territorial jurisdiction could be recognised in some very limited circumstances.
Answer
Bankovic v Belgium (2001) 11 BHRC 435


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Exceptionally, a person can make a claim for acts that have occurred outside the geographical jurisdiction of a contracting state. In Bankovic v Belgium (2001) 11 BHRC 435, which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essentially territorial notion of jurisdiction,

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Exceptionally, a person can make a claim for [...]. In Bankovic v Belgium (2001) 11 BHRC 435, which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essentially territorial notion of jurisdiction, extra-territorial jurisdiction could be recognised in some very limited circumstances.
Answer
acts that have occurred outside the geographical jurisdiction of a contracting state


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Exceptionally, a person can make a claim for acts that have occurred outside the geographical jurisdiction of a contracting state. In Bankovic v Belgium (2001) 11 BHRC 435, which concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while the ECHR, art 1 reflects an essent

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Before the ECtHR in [ case ], however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.
Answer
Al-Skeini and Others v UK [2011] ECHR 55721/07


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Before the ECtHR in Al-Skeini and Others v UK [2011] ECHR 55721/07, however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, ar

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Before the ECtHR in Al-Skeini and Others v UK [2011] ECHR 55721/07, however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the [...] was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.
Answer
extent of control and power exercised by the UK military


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, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the <span>extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.<span><body><html>

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Before the ECtHR in Al-Skeini and Others v UK [2011] ECHR 55721/07, however, the scope of jurisdiction was widened quite significantly when the Grand Chamber determined that jurisdiction under the ECHR, art 1 (and a subsequent violation of the ECHR, art 2) also applied in respect of the other five deaths. The court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was [...].
Answer
sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base


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e court was satisfied that, in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was <span>sufficient to render the actions of its armed forces subject to regulation under the ECHR, whether on or off base.<span><body><html>

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In the conjoined appeals of [ case ], however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state.
Answer
Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41


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In the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in

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In the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was [...]. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state.
Answer
the degree of control and authority exercised by the relevant state over the individual


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2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was <span>the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in

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In the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, however, the Supreme Court unanimously decided that the so-called 'Snatch Land Rover claims', similarly relating to the deaths of British servicemen operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention. Lord Hope believed that Strasbourg had partly redefined the concept of jurisdiction from the position taken in the Bankovic case to a recognition in Al-Skeini v UK that the key element was the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, [...].
Answer
deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state


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gree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, <span>deaths of servicemen in the battlefield fall within the jurisdiction of the ECHR, art 1, regardless of whether they are operating in areas not under the control of the contracting state.<span><body><html>

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As far as standing is concerned, applicants must show that [...] in order to be a 'victim' for the purposes of the ECHR, art 34: Klass v Germany (1978) 2 EHRR 214.
Answer
they are directly affected by state action or inaction


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As far as standing is concerned, applicants must show that they are directly affected by state action or inaction in order to be a 'victim' for the purposes of the ECHR, art 34: Klass v Germany (1978) 2 EHRR 214.

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As far as standing is concerned, applicants must show that they are directly affected by state action or inaction in order to be a 'victim' for the purposes of the ECHR, art 34: [ case ].
Answer
Klass v Germany (1978) 2 EHRR 214


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As far as standing is concerned, applicants must show that they are directly affected by state action or inaction in order to be a 'victim' for the purposes of the ECHR, art 34: Klass v Germany (1978) 2 EHRR 214.

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Applicants must be a 'person' in the legal sense and therefore can be natural or legal persons, such as corporate bodies (e.g. [ case ]) and certain other organisations with legal personality, including trade unions and political parties.
Answer
The Sunday Times v UK (1979)


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Applicants must be a 'person' in the legal sense and therefore can be natural or legal persons, such as corporate bodies (e.g. The Sunday Times v UK (1979)) and certain other organisations with legal personality, including trade unions and political parties.

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An applicant may, however, be an indirect victim of a violation in exceptional circumstances, for instance [...].
Answer
close relatives of a deceased where complainants allege a violation of the right to life


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An applicant may, however, be an indirect victim of a violation in exceptional circumstances, for instance close relatives of a deceased where complainants allege a violation of the right to life.

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[ case ], where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held to have breached its positive obligation under the ECHR, art 8.
Answer
X and Y v The Netherlands [1985] ECHR 4


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X and Y v The Netherlands [1985] ECHR 4, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held

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X and Y v The Netherlands [1985] ECHR 4, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held [...].
Answer
to have breached its positive obligation under the ECHR, art 8


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body>X and Y v The Netherlands [1985] ECHR 4, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held to have breached its positive obligation under the ECHR, art 8.<body><html>

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In [ case ] it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.
Answer
Osman v UK, (2000) 29 EHRR 245


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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities [...] of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.
Answer
knew or ought to have known at the time


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se life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions: '[I]t must be established … that the authorities <span>knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities knew or ought to have known at the time of [...] of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.
Answer
the existence of a real and immediate risk to the life


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of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of <span>the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of [...] from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.
Answer
an identified individual or individuals


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hat this obligation on the authorities was subject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of <span>an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' &#1

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from [...] and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.
Answer
the criminal acts of a third party


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bject to the following conditions: '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from <span>the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' The court also acknowledged, i

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In Osman v UK, (2000) 29 EHRR 245 it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the authorities was subject to the following conditions:

'[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that [...].'

The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities.
Answer
they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk


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3; '[I]t must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that <span>they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' The court also acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted i

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In [ case ], the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the ECHR, art 57).
Answer
Belilos v Switzerland (1988) 10 EHRR 466


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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to am

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be [...] (prohibited by the ECHR, art 57).
Answer
so vague as to amount to a 'reservation of a general character'


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assively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be <span>so vague as to amount to a 'reservation of a general character' (prohibited by the ECHR, art 57).<span><body><html>

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The UK has a reservation to the ECHR, art 2 of the First Protocol to the Convention (the 'right to education'). Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the [ statute ]).
Answer
ECHR, art 57


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HR removed (or 'severed') elements from a 'declaration' made by the Swiss government that the government claimed amounted to a reservation. This was held to be so vague as to amount to a 'reservation of a general character' (prohibited by the <span>ECHR, art 57).<span><body><html>

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of [...] arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.
Answer
public emergency


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be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of <span>public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, econ

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the [ statute ], and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.
Answer
ECHR, art 15


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areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the <span>ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental polici

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases [...]. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.
Answer
involving national security


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cope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases <span>involving national security. A further area where a wide margin is given is in respect of measures which require an appreciation of social, economic, and environmental policies, which the national authorities are

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Where a particularly important facet of an individual's existence or identity is in issue, the ECtHR will be less likely to accept that a contracting state should be afforded a broad discretion. In areas of morality, the scope of the margin is likely to be wider, as there is no uniform conception of morality among the contracting states. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require [...], which the national authorities are seen as best placed to assess.
Answer
an appreciation of social, economic, and environmental policies


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tes. Similarly, a state is allowed considerable discretion in cases of public emergency arising under the ECHR, art 15, and cases involving national security. A further area where a wide margin is given is in respect of measures which require <span>an appreciation of social, economic, and environmental policies, which the national authorities are seen as best placed to assess.<span><body><html>

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In [ case ], Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.
Answer
Handyside v UK (1976) 1 EHRR 737


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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be '[...]'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.
Answer
necessary in a democratic society


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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionat

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The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that [...].
Answer
interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued


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>The ECHR, arts 8–11 are qualified Convention rights, and require that any restrictions made to these rights must be 'necessary in a democratic society'. In Handyside v UK (1976) 1 EHRR 737, Strasbourg held that interferences will be considered necessary in a democratic society if they answer a pressing social need and are proportionate to the legitimate aim pursued.<html>

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One variation of the proportionality test involves [...]. Another variation of the test involves considering whether there was an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed right to the same degree.
Answer
balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made


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One variation of the proportionality test involves balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made. Another variation of the test involves considering whether there was an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed rig

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One variation of the proportionality test involves balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made. Another variation of the test involves considering whether there was [...].
Answer
an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed right to the same degree


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ation of the proportionality test involves balancing the severity of the interference to the Convention right against the legitimate aim for which the interference was made. Another variation of the test involves considering whether there was <span>an alternative and less intrusive means of achieving the legitimate aim without interfering with the guaranteed right to the same degree.<span><body><html>

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Strasbourg declared in [ case ] that:

'For domestic law to meet these requirements [in Sunday Times] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.'

Answer
Gillan and Quinton v UK (2010) 50 EHRR 45


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Strasbourg declared in Gillan and Quinton v UK (2010) 50 EHRR 45 that: 'For domestic law to meet these requirements [in Sunday Times] it must afford a measure of legal protection against arbitrary interferences by public authorities with

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Strasbourg declared in Gillan and Quinton v UK (2010) 50 EHRR 45 that:

'For domestic law to meet these requirements [in Sunday Times] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate [...] conferred on the competent authorities and the manner of its exercise.'

Answer
with sufficient clarity the scope of any such discretion


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contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate <span>with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.' <span><body><html>

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Under the [ statute ], any contracting state may bring an application before the ECtHR against another contracting state.
Answer
ECHR, art 33


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Under the ECHR, art 33, any contracting state may bring an application before the ECtHR against another contracting state.

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A number of important cases have arisen as a result of UK military involvement in Iraq since 2003. In R (on application of Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26, the applicants were relatives of six Iraqi civilians who, it was claimed, had been killed by UK armed forces in Basra during 2003. The House of Lords decided at this point that the ECHR would extend to human rights abuses that occur outside the territorial jurisdiction of the United Kingdom in very limited situations. Their Lordships decided that the claims relating to five of the Iraqi civilians, who were all killed in the course of general security operations, could not succeed because [...]. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces.
Answer
the UK did not exercise sufficient control over Iraq at the relevant time


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torial jurisdiction of the United Kingdom in very limited situations. Their Lordships decided that the claims relating to five of the Iraqi civilians, who were all killed in the course of general security operations, could not succeed because <span>the UK did not exercise sufficient control over Iraq at the relevant time. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as he died as a result of injuries inflicted by UK armed forces personnel in

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A number of important cases have arisen as a result of UK military involvement in Iraq since 2003. In R (on application of Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26, the applicants were relatives of six Iraqi civilians who, it was claimed, had been killed by UK armed forces in Basra during 2003. The House of Lords decided at this point that the ECHR would extend to human rights abuses that occur outside the territorial jurisdiction of the United Kingdom in very limited situations. Their Lordships decided that the claims relating to five of the Iraqi civilians, who were all killed in the course of general security operations, could not succeed because the UK did not exercise sufficient control over Iraq at the relevant time. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as [...].
Answer
he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces


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f general security operations, could not succeed because the UK did not exercise sufficient control over Iraq at the relevant time. However, the sixth Iraqi citizen, Baha Mousa, came within the jurisdiction of the UK under the ECHR, art 1, as <span>he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces.<span><body><html>

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The position until recently with regard to rights enjoyed by UK armed forces personnel was more restrictive. The case of [ case ] concerned Private Jason Smith, a Territorial Army soldier, who died of heatstroke while serving in Iraq in 2003. The issue was whether the ECHR applies extra- territorially to protect British troops abroad, specifically when operating in areas not under UK control. If jurisdiction could be established under the ECHR, art 1, the next issue was whether his next of kin could establish a claim in respect of his rights under the ECHR, art 2 against the Ministry of Defence. The majority in the Supreme Court held that the jurisdiction of the ECHR did not extend to protection of Jason Smith's rights under the ECHR, art 2, as he had died as a result of conditions in the field where he was operating in an area seen to be outside UK control.
Answer
R (on application of Smith) v Secretary of State for Defence [2010] UKSC 29


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The position until recently with regard to rights enjoyed by UK armed forces personnel was more restrictive. The case of R (on application of Smith) v Secretary of State for Defence [2010] UKSC 29 concerned Private Jason Smith, a Territorial Army soldier, who died of heatstroke while serving in Iraq in 2003. The issue was whether the ECHR applies extra- territorially to protect Br

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The position until recently with regard to rights enjoyed by UK armed forces personnel was more restrictive. The case of R (on application of Smith) v Secretary of State for Defence [2010] UKSC 29 concerned Private Jason Smith, a Territorial Army soldier, who died of heatstroke while serving in Iraq in 2003. The issue was whether the ECHR applies extra- territorially to protect British troops abroad, specifically when operating in areas not under UK control. If jurisdiction could be established under the ECHR, art 1, the next issue was whether his next of kin could establish a claim in respect of his rights under the ECHR, art 2 against the Ministry of Defence. The majority in the Supreme Court held that [...].
Answer
the jurisdiction of the ECHR did not extend to protection of Jason Smith's rights under the ECHR, art 2, as he had died as a result of conditions in the field where he was operating in an area seen to be outside UK control


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diction could be established under the ECHR, art 1, the next issue was whether his next of kin could establish a claim in respect of his rights under the ECHR, art 2 against the Ministry of Defence. The majority in the Supreme Court held that <span>the jurisdiction of the ECHR did not extend to protection of Jason Smith's rights under the ECHR, art 2, as he had died as a result of conditions in the field where he was operating in an area seen to be outside UK control.<span><body><html>

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One way in which positive obligations can be fulfilled is by contracting states being required to enact laws in their domestic legal systems that prohibit, deter, and punish individuals who commit such violations. An example of this is provided by [ case ]
Answer
X and Y v The Netherlands


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ay in which positive obligations can be fulfilled is by contracting states being required to enact laws in their domestic legal systems that prohibit, deter, and punish individuals who commit such violations. An example of this is provided by <span>X and Y v The Netherlands<span><body><html>

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According to the [ statute ], no derogation is allowed with respect to the ECHR, arts 2 (except regarding deaths resulting from lawful acts of war), 3, 4(1) and 7.
Answer
ECHR, art 15(2)


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According to the ECHR, art 15(2), no derogation is allowed with respect to the ECHR, arts 2 (except regarding deaths resulting from lawful acts of war), 3, 4(1) and 7.

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The [ statute ] allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where:
(a) there is a 'public emergency threatening the life of the nation';
(b) the measure is strictly required by the exigencies of the situation;
(c) the measure is consistent with any other obligations under international law; and
(d) there has been timely written notification to the Secretary-General of the Council of Europe.
Answer
ECHR, art 15


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The ECHR, art 15 allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where: (a) there is a 'public emergency

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The ECHR, art 15 allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where:
Answer
(a) there is a 'public emergency threatening the life of the nation';
(b) the measure is strictly required by the exigencies of the situation;
(c) the measure is consistent with any other obligations under international law; and
(d) there has been timely written notification to the Secretary-General of the Council of Europe.


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The ECHR, art 15 allows contracting states to take measures that would interfere temporarily with the rights and freedoms protected by the ECHR and Protocols where: (a) there is a 'public emergency threatening the life of the nation'; (b) the measure is strictly required by the exigencies of the situation; (c) the measure is consistent wit

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In [ case ], the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on the ground that the derogation measures were not 'strictly required by the exigencies of the situation'.
Answer
A and Others v Secretary of State for the Home Department [2004] UKHL 56


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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on th

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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on the ground that [...].
Answer
the derogation measures were not 'strictly required by the exigencies of the situation'


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tate for the Home Department [2004] UKHL 56, the House of Lords quashed the derogation order (and entered a section 4 declaration of incompatibility in respect of the Anti- Terrorism, Crime and Security Act 2001, ss 21–23), on the ground that <span>the derogation measures were not 'strictly required by the exigencies of the situation'.<span><body><html>

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Reservations are made under the [ statute ]. Any contracting state may, at the time of signing or ratifying the ECHR, make its acceptance subject to a condition, which limits or varies the application of the ECHR to that state.
Answer
ECHR, art 57


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Reservations are made under the ECHR, art 57. Any contracting state may, at the time of signing or ratifying the ECHR, make its acceptance subject to a condition, which limits or varies the application of the ECHR to that state.</

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The ECtHR has taken the view that [...]. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in Loizidou v Turkey (Preliminary Objections), (1995) 20 EHRR 99, the chief objection being that the purported 'reservation' would defeat the very object and purpose of the Convention.
Answer
it alone has responsibility for deciding what is or is not a reservation


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The ECtHR has taken the view that it alone has responsibility for deciding what is or is not a reservation. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in Loizidou v Turkey (Preliminary Objections), (

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The ECtHR has taken the view that it alone has responsibility for deciding what is or is not a reservation. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in [ case ], the chief objection being that the purported 'reservation' would defeat the very object and purpose of the Convention.
Answer
Loizidou v Turkey (Preliminary Objections), (1995) 20 EHRR 99


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ECtHR has taken the view that it alone has responsibility for deciding what is or is not a reservation. This empowers it to determine the exact nature and content of a given state's acceptance of its jurisdiction. A similar result occurred in <span>Loizidou v Turkey (Preliminary Objections), (1995) 20 EHRR 99, the chief objection being that the purported 'reservation' would defeat the very object and purpose of the Convention.<span><body><html>

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In [ case ], concerning an interference with freedom of expression under the ECHR, art 10(1) the ECtHR explained, on the basis that this was necessary for the 'protection of morals', that:

'By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements [of morality] as well as on the "necessity" of a "restriction" or "penalty" intended to meet them … Nevertheless, Article 10(2) does not give the Contracting States an unlimited power of appreciation. The court, which, with the Commission, is responsible for ensuring the observance of those States' engagements, is empowered to give the final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision.'

Answer
Handyside v UK (1976) 1 EHRR 737


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In Handyside v UK (1976) 1 EHRR 737, concerning an interference with freedom of expression under the ECHR, art 10(1) the ECtHR explained, on the basis that this was necessary for the 'protection of morals', that: &#

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Question
In Silver v UK (1983) 5 EHRR 347, Strasbourg added that [...], as the principle of the rule of law implied that interference by the authorities with an individual's rights should be subject to effective control.
Answer
the legal basis must provide safeguards against abuse


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In Silver v UK (1983) 5 EHRR 347, Strasbourg added that the legal basis must provide safeguards against abuse, as the principle of the rule of law implied that interference by the authorities with an individual's rights should be subject to effective control.

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Flashcard 1373414231308

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Question
In [ statute ], Strasbourg added that the legal basis must provide safeguards against abuse, as the principle of the rule of law implied that interference by the authorities with an individual's rights should be subject to effective control.
Answer
Silver v UK (1983) 5 EHRR 347


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In Silver v UK (1983) 5 EHRR 347, Strasbourg added that the legal basis must provide safeguards against abuse, as the principle of the rule of law implied that interference by the authorities with an individual's right

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Flashcard 1373416066316

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Question
An example of prescription by law is provided by [ case ], where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.
Answer
Steel and Morris v UK (2000) 28 EHRR 603


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An example of prescription by law is provided by Steel and Morris v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was suffici

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Flashcard 1373417901324

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Question
An example of prescription by law is provided by Steel and Morris v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, [...] on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.
Answer
despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable


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v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, <span>despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bou

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Flashcard 1373418949900

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Question
An example of prescription by law is provided by Steel and Morris v UK (2000) 28 EHRR 603, where Strasbourg had to consider whether the imposition of a requirement to be 'bound over to keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that [...]. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.
Answer
the sanction had been set after a finding that a person had committed a breach of the peace


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keep the peace' on those charged with, and convicted of, breaches of the peace was sufficiently clear. The court held that, despite it being couched in vague and general terms, the law was sufficiently clear and foreseeable on the basis that <span>the sanction had been set after a finding that a person had committed a breach of the peace. In these particular circumstances it was sufficiently clear that those 'bound over' were agreeing to refrain from causing further, similar breaches of the law in future.<span><

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Flashcard 1373422882060

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Question
Generally, for the state to lawfully interfere with a qualified Convention right, it must be shown that all three of the following circumstances apply.
Answer
(a) The interference was prescribed by, or in accordance with, the law.
(b) The interference was in pursuit of a legitimate aim.
(c) The interference was necessary in a democratic society.


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Generally, for the state to lawfully interfere with a qualified Convention right, it must be shown that all three of the following circumstances apply. (a) The interference was prescribed by, or in accordance with, the law. (b) The interference was in pursuit of a legitimate aim. (c) The interference was necessary in a democra

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Flashcard 1373444902156

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Question
In the leading case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, [2003] UKHL 37 the House of Lords gave some guidance on what constituted the scope of a core public authority. Lord Nicholls (para 7) suggested that the phrase 'public authority' in the HRA 1998, s 1 is 'essentially a reference to a body whose nature is governmental in a broad sense'. His Lordship further suggested that the following factors could be considered relevant in determining whether a body is a 'core' public authority:
Answer

(a) the possession of special powers;
(b) democratic accountability;
(c) public funding in whole or in part;
(d) an obligation to act only in the public interest;
(e) a statutory constitution


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In the leading case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, [2003] UKHL 37 the House of Lords gave some guidance on what constituted the scope of a core public authority. Lord Nicholls (para 7) suggested that the phrase 'public authority' in the HRA 1998, s 1 is 'essentially a reference to a body whose nature is governmental in a broad sense'. His Lordship further suggested that the following factors could be considered relevant in determining whether a body is a 'core' public authority: (a) the possession of special powers; (b) democratic accountability; (c) public funding in whole or in part; (d) an obligation to act only in the public interest; (e)

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Flashcard 1373446737164

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Question
Whereas 'core' public authorities are potentially bound by the ECHR in respect of all their actions, 'hybrid' public authorities are only bound by the ECHR in respect of [...].
Answer
those functions they carry out which are of a public nature


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Whereas 'core' public authorities are potentially bound by the ECHR in respect of all their actions, 'hybrid' public authorities are only bound by the ECHR in respect of those functions they carry out which are of a public nature.

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Flashcard 1373447785740

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Question
The HRA 1998, s 8(1) provides that, where a court or tribunal finds that an act of a public authority is unlawful, contrary to the HRA 1998, s 6(1), it may grant such remedy as it considers 'just and appropriate'. The power to award a remedy is, however, limited in a number of respects (see the [ statute ]). In practice, the nature of the remedy will vary greatly according to the context of the case. The normal remedies will include damages, declarations, injunctions, and the prerogative orders.
Answer
HRA 1998, s 8(1)– (4)


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ibunal finds that an act of a public authority is unlawful, contrary to the HRA 1998, s 6(1), it may grant such remedy as it considers 'just and appropriate'. The power to award a remedy is, however, limited in a number of respects (see the <span>HRA 1998, s 8(1)– (4)). In practice, the nature of the remedy will vary greatly according to the context of the case. The normal remedies will include damages, declarations, injunctions, and the prerogativ

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Flashcard 1373450669324

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Question
Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: [ statute ].
Answer
HRA 1998, s 3


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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3.

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Flashcard 1373452504332

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Question
Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can [...]: HRA 1998, s 4.
Answer
make a declaration of incompatibility


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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: HRA 1998, s 4.

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Flashcard 1373453552908

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Question
Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: [ statute ].
Answer
HRA 1998, s 4


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html>Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: HRA 1998, s 4.<html>

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Flashcard 1373455387916

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Question
[ case ] was the first decision in which the House of Lords declined to follow the jurisprudence of the ECtHR.
Answer
R v Spear [2002] UKHL 31


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R v Spear [2002] UKHL 31 was the first decision in which the House of Lords declined to follow the jurisprudence of the ECtHR.

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Flashcard 1373457222924

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Question
In determining legal questions, including common law development, the courts must [...]: HRA 1998, s 2.
Answer
take into account relevant ECHR case law


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In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: HRA 1998, s 2.

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Flashcard 1373458271500

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Question
In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: [ statute ].
Answer
HRA 1998, s 2


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In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: HRA 1998, s 2.

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Flashcard 1373460106508

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Question
It is important to note that, where the unlawful interference with a Convention right has been provided for by statute and the court is unable to interpret the offending piece of legislation compatibly with the Convention right and makes a declaration of incompatibility instead, [...].
Answer
the public authority will not be found to have acted unlawfully


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unlawful interference with a Convention right has been provided for by statute and the court is unable to interpret the offending piece of legislation compatibly with the Convention right and makes a declaration of incompatibility instead, <span>the public authority will not be found to have acted unlawfully.<span><body><html>

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Flashcard 1373462203660

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Question
The [ statute ] gives effect to ECHR rights and freedoms in UK domestic law.
Answer
HRA 1998, s 1


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The HRA 1998, s 1 gives effect to ECHR rights and freedoms in UK domestic law.

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Flashcard 1373464038668

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Question
The HRA 1998, s 1 [...].
Answer
gives effect to ECHR rights and freedoms in UK domestic law


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The HRA 1998, s 1 gives effect to ECHR rights and freedoms in UK domestic law.

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Question
The [ statute ] provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.
Answer
HRA 1998, s 2(1)


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The HRA 1998, s 2(1) provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

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Flashcard 1373466922252

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Question
The HRA 1998, s 2(1) provides that [...].
Answer
UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right


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The HRA 1998, s 2(1) provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

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Flashcard 1373467970828

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Question
The [ statute ] provides that:

'[S]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.'

Answer
HRA 1998, s 3(1)


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The HRA 1998, s 3(1) provides that: '[S]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.'

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Flashcard 1373469805836

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Question
The HRA 1998, s 3(1) provides that:

'[S]o far as it is possible to do so, primary and subordinate legislation must [...].'

Answer
be read and given effect in a way which is compatible with Convention rights


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The HRA 1998, s 3(1) provides that: '[S]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.'

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Flashcard 1373470854412

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Question
The approach to be taken under the HRA towards the interpretation of legislation has been controversial, as can be seen in R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546. The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict the circumstances in which evidence and questioning about a complainant's prior sexual history in trials concerning sexual offences could be permitted. The issue was whether this new provision prejudiced the defendant's right to a fair trial under the ECHR, art 6.

The House of Lords held that the Youth Justice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a '[...] under the HRA 1998, s 3. He reasoned:

'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

Answer
wide' approach to interpretation


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ice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a '<span>wide' approach to interpretation under the HRA 1998, s 3. He reasoned: '[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the langu

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Flashcard 1373471902988

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Question
The approach to be taken under the HRA towards the interpretation of legislation has been controversial, as can be seen in R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546. The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict the circumstances in which evidence and questioning about a complainant's prior sexual history in trials concerning sexual offences could be permitted. The issue was whether this new provision prejudiced the defendant's right to a fair trial under the ECHR, art 6.

The House of Lords held that the Youth Justice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned:

'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even [...] … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

Answer
if there is no ambiguity in the language in the sense of the language being capable of two different meanings


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r the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned: '[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even <span>if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compat

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Flashcard 1373472951564

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Question
[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings
Answer
R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546


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ial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned: '<span>[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compat

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Flashcard 1373474786572

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Question
The approach to be taken under the HRA towards the interpretation of legislation has been controversial, as can be seen in R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546. The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict the circumstances in which evidence and questioning about a complainant's prior sexual history in trials concerning sexual offences could be permitted. The issue was whether this new provision prejudiced the defendant's right to a fair trial under the ECHR, art 6.

The House of Lords held that the Youth Justice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned:

'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to [...] … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

Answer
strive to find a possible interpretation compatible with Convention rights


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re is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to <span>strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques t

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Flashcard 1373475835148

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Question
The approach to be taken under the HRA towards the interpretation of legislation has been controversial, as can be seen in R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546. The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict the circumstances in which evidence and questioning about a complainant's prior sexual history in trials concerning sexual offences could be permitted. The issue was whether this new provision prejudiced the defendant's right to a fair trial under the ECHR, art 6.

The House of Lords held that the Youth Justice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned:

'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If [...], such an impossibility will arise.'

Answer
a clear limitation on Convention rights is stated in terms


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used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If <span>a clear limitation on Convention rights is stated in terms, such an impossibility will arise.' <span><body><html>

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was [ case ], where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution.
Answer
R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23


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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special cir

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should [...] unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution.
Answer
follow any clear and consistent jurisprudence


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meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should <span>follow any clear and consistent jurisprudence unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution. </

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless [...].
Answer
there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution


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ury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless <span>there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution. <span><body><html>

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In [ case ], the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

Answer
Re S (Children) and Re W (Care Orders) [2002] UKHL 10


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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very usefu

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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which [...] is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

Answer
departs substantially from a fundamental feature of an Act of Parliament


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ves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which <span>departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipp

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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to [...]. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

Answer
have crossed the boundary between interpretation and amendment


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a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to <span>have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.' <span><body><html>

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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where [...].'

Answer
the departure has important practical repercussions which the court is not equipped to evaluate


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rs for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where <span>the departure has important practical repercussions which the court is not equipped to evaluate.' <span><body><html>

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It seems therefore that, where the use of the HRA 1998, s 3 would [...], the courts will be more unwilling to use the HRA 1998, s 3.
Answer
represent a major change in the law, having far-reaching consequences


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It seems therefore that, where the use of the HRA 1998, s 3 would represent a major change in the law, having far-reaching consequences, the courts will be more unwilling to use the HRA 1998, s 3.

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In [ case ] the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.
Answer
Ghaidan v Godin-Mendoza [2004] UKHL 30


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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. T

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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to [...] into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.
Answer
read in the additional words 'as his husband and wife'


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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998

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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was [...]. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.
Answer
the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used


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usband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was <span>the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court c

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Lord Hoffmann, in [ case ], made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer
R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18)


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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts: 'I do not believe that section 3 of the 1998 Act was

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that [...]. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer
Parliament did not intend a statute to mean something which would be incompatible with those rights


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w (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that <span>Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to lo

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. [...]. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer
the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute


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d it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. <span>the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statut

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as [...]. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

Answer
referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament


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using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as <span>referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, bu

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means [...].'

Answer
the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights


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ch they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means <span>the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.' <span><body><html>

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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by [ case ]. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.
Answer
Pinnock v Manchester City Council [2010] UKSC 45


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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by Pinnock v Manchester City Council [2010] UKSC 45. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part

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The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.
Answer
Pinnock v Manchester City Council [2010] UKSC 45


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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by Pinnock v Manchester City Council [2010] UKSC 45. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part

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A more recent example of the courts applying the HRA 1998, s 3(1) is provided by Pinnock v Manchester City Council [2010] UKSC 45. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, [...] into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.
Answer
read the word 'lawful'


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rafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, <span>read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.<span><body><

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in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the [ statute ] regarding primary legislation and the HRA 1998, s 4(4) regarding subordinate legislation.
Answer
HRA 1998, s 4(2)


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head>in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the HRA 1998, s 4(4) regarding subordinate legislation.<html>

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in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the [ statute ] regarding subordinate legislation.
Answer
HRA 1998, s 4(4)


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s not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the <span>HRA 1998, s 4(4) regarding subordinate legislation.<span><body><html>

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In [ case ], the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status.
Answer
A and Others v Secretary of State for the Home Department [2004] UKHL 56


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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as it

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In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as [...].
Answer
it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status


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v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as <span>it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status.<span><body><html>

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See too the case of [ case ] where the House of Lords found the Crime (Sentences) Act 1997, s 29 to be incompatible with the ECHR, art 6(1), as it left the decision on tariffs for mandatory life term prisoners solely in the hands of the Home Secretary.
Answer
R (Anderson) v Secretary of State for the Home Department, [2002] UKHL 46


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See too the case of R (Anderson) v Secretary of State for the Home Department, [2002] UKHL 46 where the House of Lords found the Crime (Sentences) Act 1997, s 29 to be incompatible with the ECHR, art 6(1), as it left the decision on tariffs for mandatory life term prisoners sole

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The public authority may, however, appeal against a decision to make a declaration under the HRA 1998, s 4. See, for instance, the case of [ case ] where the House of Lords overturned a declaration made by the Court of Appeal that the Mental Health Act 1983, s 2 was incompatible with the ECHR, art 5 (4).
Answer
R (on the application of H) v Secretary of State for Health, [2005] UKHL 60


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The public authority may, however, appeal against a decision to make a declaration under the HRA 1998, s 4. See, for instance, the case of R (on the application of H) v Secretary of State for Health, [2005] UKHL 60 where the House of Lords overturned a declaration made by the Court of Appeal that the Mental Health Act 1983, s 2 was incompatible with the ECHR, art 5 (4).

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The [ statute ] provides that, in response to a declaration of incompatibility made under the HRA 1998, s 4 (or to a decision of the ECHR), the relevant ministers may take expedited 'remedial action' to amend the relevant legislation as necessary to remove the incompatibility, if 'there are compelling reasons for proceeding under this section'.
Answer
HRA 1998, s 10(2)


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The HRA 1998, s 10(2) provides that, in response to a declaration of incompatibility made under the HRA 1998, s 4 (or to a decision of the ECHR), the relevant ministers may take expedited 'remedial action'

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In [ case ], Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2):

'The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do. The language of the paragraph tells us that this may be the result of one provision taken by itself, or that it may be the result of two or more provisions taken together. Where more than one provision is involved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable. The situation to which paragraph (b) is addressed on the other hand arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise.'

Answer
R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29


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In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2): 'The situation to which paragraph (a) is addressed arises where the effec

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In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2):

'The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do. The language of the paragraph tells us that this may be the result of one provision taken by itself, or that it may be the result of two or more provisions taken together. Where more than one provision is involved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If [...]. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable. The situation to which paragraph (b) is addressed on the other hand arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise.'

Answer
the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right


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ved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If <span>the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails ov

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The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.
Answer
R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936


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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistan

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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that [...]. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.
Answer
there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents


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the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that <span>there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was he

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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was [...]. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.
Answer
performing a function delegated under statutory authority, it was not itself exercising statutory powers


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of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was <span>performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.<span><body><html>

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As indicated above, the concept of 'public authority', both core and functional, was reviewed by the House of Lords in Aston Cantlow, which was decided after Poplar and Leonard Cheshire. (Although note that these cases were not specifically overruled by the House of Lords.) The House of Lords stressed that it was [...] that should determine whether a body was a functional public authority. Lord Nicholls suggested that there should be a 'generously wide' interpretation of public function so as to further the statutory aim of promoting human rights protection. Lord Hope stated that the concept of a functional public authority:

'… has a much wider reach, and is sensitive to the facts of each case. It is the function that the person is performing that is determinative of the question whether it is a … "hybrid" [functional] public authority.'

Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one:
(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.
Answer
the nature of the function being performed


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ctional, was reviewed by the House of Lords in Aston Cantlow, which was decided after Poplar and Leonard Cheshire. (Although note that these cases were not specifically overruled by the House of Lords.) The House of Lords stressed that it was <span>the nature of the function being performed that should determine whether a body was a functional public authority. Lord Nicholls suggested that there should be a 'generously wide' interpretation of public function so as to furthe

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In Aston Cantlow Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one: (4)
Answer
(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.


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In Aston Cantlow Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one: (a) the extent to which, in carrying out the function, the body is publicly funded; or (b) exercising statutory power; or (c) taking the place of central government or local au

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In [ case ] Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one:
(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.
Answer
Aston Cantlow


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In Aston Cantlow Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one: (a) the extent to which, in carrying

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To determine whether the Parochial Church Council was performing a public function in Aston Cantlow, the House of Lords stressed the importance of considering the nature of the particular act being carried out by the body in question. In the instant case, the PCC was trying to enforce an obligation to repair against the lay rectors. Their Lordships decided that this was not a public function. Lord Hope stated: 'The function which it is performing [...]'.
Answer
has nothing to do with the responsibilities which are owed to the public by the State


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by the body in question. In the instant case, the PCC was trying to enforce an obligation to repair against the lay rectors. Their Lordships decided that this was not a public function. Lord Hope stated: 'The function which it is performing <span>has nothing to do with the responsibilities which are owed to the public by the State'.<span><body><html>

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The most important recent case dealing with the concept of what constitutes the performance of a public function is [case]. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
YL v Birmingham City Council [2007] UKHL 27


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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Ch

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, [...]. The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b)


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on is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, <span>a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summar

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company [...]. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
carrying on a socially useful business for profit


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s, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26: 'Southern Cross is a company <span>carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It re

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into [...]. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
private law contracts with the residents in its care homes and with the local authorities with whom it does business


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es of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26: 'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into <span>private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislatio

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives [...], enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
no public funding


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carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives <span>no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who of

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no [...], and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
special statutory powers


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l business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no <span>special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is [...] (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
at liberty to accept or reject residents as it chooses


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her a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is <span>at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suita

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Question
The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to [...]. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

Answer
charge whatever fees in its commercial judgment it thinks suitable


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es no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to <span>charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.' However, he stated at paragraph 28: 'The position might be different if the manage

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Question
The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if [...].'

Answer
the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises


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charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.' However, he stated at paragraph 28: 'The position might be different if <span>the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.' <span><body><html>

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A less restrictive line was taken by the Court of Appeal in the subsequent case of [ case ], where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.
Answer
R (Weaver) v London and Quadrant Housing Trust


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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of

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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if [...]. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.
Answer
any of the functions that a body performs are public, it will be seen as a hybrid public authority


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the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if <span>any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the

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If any of the functions that a body performs are public, it will be seen as a hybrid public authority.
Answer
R (Weaver) v London and Quadrant Housing Trust


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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of

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Question
A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether [...]? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.
Answer
the specific act undertaken by the authority is nevertheless private in nature


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, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether <span>the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is con

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In [ case ], the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

Answer
R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93


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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated: '… The doctrine of the "margin of appreciation" is a f

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between [...]. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

Answer
competing interests and issues of proportionality


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rts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between <span>competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of [...], much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

Answer
social or economic policy


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a of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of <span>social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.) &

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Question
The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are [...].' (Emphasis added.)

Answer
of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection


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quires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are <span>of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.) <span><body><html>

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Question
In the same [case] case, Lord Sumption, who gave the leading majority speech, summed up the cumulative effect of these influential cases by outlining a four-part analysis of proportionality as a concept in UK law, an approach agreed to by Lord Reed. According to Lord Sumption:

'[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.'

Answer
Bank Mellat


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In the same Bank Mellat case, Lord Sumption, who gave the leading majority speech, summed up the cumulative effect of these influential cases by outlining a four-part analysis of proportionality as a concept in

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Flashcard 1373550808332

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Question
The elements outlined in Bank Mellat to consider when assessing whether an action is "proportionate": (4)
Answer
(i) whether its objective is sufficiently important to justify the limitation of a fundamental right;
(ii) whether it is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.


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proportionality as a concept in UK law, an approach agreed to by Lord Reed. According to Lord Sumption: '[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine <span>(i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.' </

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Flashcard 1373553167628

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Question
It is also clear that where the innocent party affirms the contract in response to an anticipatory breach and subsequently commits a breach of contract himself, the repudiating party may escape liability. This is illustrated by the case of [ case ]. The House of Lords made it clear in this case that if an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the contract. Consequently, if the innocent party fails to comply with those obligations, they will be in breach of contract and the repudiating party can escape liability for their own wrongful repudiation.
Answer
Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742


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>It is also clear that where the innocent party affirms the contract in response to an anticipatory breach and subsequently commits a breach of contract himself, the repudiating party may escape liability. This is illustrated by the case of <span>Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742. The House of Lords made it clear in this case that if an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the con

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Flashcard 1373555002636

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Question
It is also clear that where the innocent party affirms the contract in response to an anticipatory breach and subsequently commits a breach of contract himself, the repudiating party may escape liability. This is illustrated by the case of Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742. The House of Lords made it clear in this case that if [...]. Consequently, if the innocent party fails to comply with those obligations, they will be in breach of contract and the repudiating party can escape liability for their own wrongful repudiation.
Answer
an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the contract


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reach of contract himself, the repudiating party may escape liability. This is illustrated by the case of Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742. The House of Lords made it clear in this case that if <span>an innocent party elects to affirm a contract, they are not absolved from further performance of their obligations under the contract. Consequently, if the innocent party fails to comply with those obligations, they will be in breach of contract and the repudiating party can escape liability for their own wrongful r

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Flashcard 1373556051212

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Question
Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to provide such a cargo and that Avery should sail away. This was undoubtedly a breach of contract by Bowden, giving Avery the option of accepting the repudiation and suing for damages at once. However, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery lost his right to sue for the breach of contract at the time when performance was due as the effects of frustration took over.
Answer
Avery v Bowden (1855) 5 E & B 714


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n the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of <span>Avery v Bowden (1855) 5 E & B 714. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to pr

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Flashcard 1373557886220

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Question
Affirming the contract represents a risk for the innocent party as subsequent events may destroy his right of action. If, for example, the contract is frustrated (see Chapter 18) in the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of Avery v Bowden (1855) 5 E & B 714. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to provide such a cargo and that Avery should sail away. This was undoubtedly a breach of contract by Bowden, giving Avery the option of accepting the repudiation and suing for damages at once. However, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery [...] as the effects of frustration took over.
Answer
lost his right to sue for the breach of contract at the time when performance was due


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ever, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery <span>lost his right to sue for the breach of contract at the time when performance was due as the effects of frustration took over.<span><body><html>

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Flashcard 1373558934796

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Question
Affirming the contract represents a risk for the innocent party as subsequent events may destroy his right of action. If, for example, the contract is frustrated (see Chapter 18) in the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of [ case ]. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to provide such a cargo and that Avery should sail away. This was undoubtedly a breach of contract by Bowden, giving Avery the option of accepting the repudiation and suing for damages at once. However, he chose to ignore the advice and kept the ship at Odessa. Before the end of the 45-day period, the Crimean War broke out, Odessa became an enemy port and the contract became illegal and was therefore frustrated. As a consequence, Avery lost his right to sue for the breach of contract at the time when performance was due as the effects of frustration took over.
Answer
Avery v Bowden (1855) 5 E & B 714


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n the period between the affirmation and the due date for performance, the frustration will discharge the contract and the non-breaching party will lose the remedy of damages for breach of contract. This is clearly demonstrated by the case of <span>Avery v Bowden (1855) 5 E & B 714. Here, Bowden chartered Avery's ship and agreed to load the ship with a cargo at Odessa within 45 days. During that period, Bowden repeatedly advised Avery that he would be unable to pr

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Flashcard 1373560769804

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Question
In the event of a breach of condition or a breach of an innominate term with serious consequences, the innocent party has [...]. In either case, the innocent party can claim damages also.
Answer
a right to elect whether to affirm or terminate the contract


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In the event of a breach of condition or a breach of an innominate term with serious consequences, the innocent party has a right to elect whether to affirm or terminate the contract. In either case, the innocent party can claim damages also.

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Flashcard 1373561818380

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Question
A condition subsequent is [...]: Head v Tattersall (1871) LR 7 Ex 7.
Answer
a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence


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A condition subsequent is a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence: Head v Tattersall (1871) LR 7 Ex 7.

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Flashcard 1373562866956

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Question
A condition subsequent is a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence: [ case ].
Answer
Head v Tattersall (1871) LR 7 Ex 7


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A condition subsequent is a term providing for the discharge of obligations outstanding under the contract, in the event of a specified occurrence: Head v Tattersall (1871) LR 7 Ex 7.

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Flashcard 1373565750540

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Question
A condition precedent is [...].
Answer
a condition that must be satisfied before any rights come into existence


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A condition precedent is a condition that must be satisfied before any rights come into existence.

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Flashcard 1373566799116

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Question
A condition precedent is a condition that must be satisfied before any rights come into existence. Where the coming into existence of a contract is subject to the occurrence of a specific event, the contract is said to be subject to a condition precedent. The contract is suspended until the condition is satisfied. Where a condition precedent is not fulfilled, there is no true discharge because the rights and obligations under the contract were contingent upon an event which did not occur, i.e. the rights and obligations never came into existence: [ case ].
Answer
Pym v Campbell (1856) 6 El & Bl 379


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ed. Where a condition precedent is not fulfilled, there is no true discharge because the rights and obligations under the contract were contingent upon an event which did not occur, i.e. the rights and obligations never came into existence: <span>Pym v Campbell (1856) 6 El & Bl 379.<span><body><html>

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Flashcard 1373570469132

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Question
Where both parties have obligations that remain unperformed, the contract may be discharged by [...]. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.
Answer
mutual waiver


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Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see Wi

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Flashcard 1373571517708

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Question
Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is [...]: see Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.
Answer
a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract


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Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.

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Flashcard 1373572566284

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Question
Where both parties have obligations that remain unperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see [ case ].
Answer
Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854


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nperformed, the contract may be discharged by mutual waiver. This is a new contract by which each party agrees to waive their rights under the old contract in consideration for being released from their obligations under the old contract: see <span>Wilson (Paal) & Co A/S v Partenreederei Hannah Blumenthal, The Hannah Blumenthal [1983] 1 AC 854.<span><body><html>

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Flashcard 1373574925580

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Question
In an action for breach of contract, it is a good defence for the defendant to show that he [...]. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance.
Answer
tendered performance


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In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but th

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Flashcard 1373575974156

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Question
In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he [...]. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance.
Answer
unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance


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In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a pl

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Flashcard 1373577022732

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Question
In an action for breach of contract, it is a good defence for the defendant to show that he tendered performance. In order for a plea of tender to be successful, the promisor must show that he unconditionally offered to perform his obligations in accordance with the terms of the contract, but that the promisee refused to accept such performance. For instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would [...].
Answer
prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance


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r instance, if the seller delivered goods but the purchaser refused to accept delivery, the seller would be relieved of liability for breach. In relation to payment of a debt, a plea of tender does not discharge the debt. However, it would <span>prevent the creditor from claiming interest or damages on that debt subsequent to the tender of performance.<span><body><html>

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Flashcard 1373578071308

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Question
Where one party performs part of the agreed obligation, and is then prevented from completing the rest by some fault of the other party, the innocent party has two options: [...]
Answer
1. to sue for damages for breach of contract; 2. alternatively, claim a quantum meruit.


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Where one party performs part of the agreed obligation, and is then prevented from completing the rest by some fault of the other party, the innocent party has two options: 1. to sue for damages for breach of contract; 2. alternatively, claim a quantum meruit.

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Flashcard 1373579119884

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Question
Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might [...]. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.
Answer
accept that part of the performance


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Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, th

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Flashcard 1373580168460

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Question
Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is [...]. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.
Answer
at the discretion of the innocent party


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ial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is <span>at the discretion of the innocent party. If the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.<span><body><html>

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Flashcard 1373581217036

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Question
Where one party has given only partial performance of the contractual obligations, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If [...].
Answer
the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit


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ns, it is possible that the innocent party, rather than reject the work done, might accept that part of the performance. However, it should be noted that such an acceptance of partial performance is at the discretion of the innocent party. If <span>the innocent party voluntarily accepts partial performance, then the party in default will be entitled to a quantum meruit.<span><body><html>

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Flashcard 1373582265612

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Question
Furthermore, as Lord Reid stated in [ case ], the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.
Answer
White and Carter (Councils) Ltd v McGregor


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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-

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Flashcard 1373584100620

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Question
Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for [...] will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.
Answer
co-operation of the other contracting party


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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil

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Flashcard 1373585149196

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Question
Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party [...]. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.
Answer
requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price


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ermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party <span>requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Develo

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Flashcard 1373586197772

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Question
Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means [...]: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.
Answer
passive as well as active co-operation


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n of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means <span>passive as well as active co-operation: Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.<span><body><html>

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Furthermore, as Lord Reid stated in White and Carter (Councils) Ltd v McGregor, the need for co-operation of the other contracting party will usually act as a further limitation on the scope of the decision. In other words, if the innocent party requires the co-operation of the other contracting party in order to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: [case].
Answer
Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538


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er to fulfil their obligations under the contract, this will prevent the innocent party claiming the contract price. Indeed, it has been confirmed by Megarry J, that co-operation in this context means passive as well as active co-operation: <span>Hounslow London Borough Council v Twickenham Garden Developments Ltd [1970] 3 WLR 538.<span><body><html>

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The appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which the advertisers would pay according to the terms of a standard form of contract. The respondent, who carried on a garage business, entered into a contract through his sales manager by which the appellant company undertook to prepare and exhibit plates advertising McGregor's business for a period of three years. The contract form was headed by a notice that it was not to be cancelled by the advertiser and one of the express conditions provided to the same effect. Immediately after this contract was signed, a letter containing the following was sent to the appellant company: 'We regret that our Mr Ward signed an order today continuing the advertisements for a further period of three years. He was unaware that our proprietor Mr McGregor does not wish to continue this form of advertisement. Please therefore cancel the order.' The appellant company did not accept the attempted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated:

It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind but it does not follow that the party at the receiving end of the proffered repudiation is bound to accept it before the time for performance and is left to his remedy in damages for breach.

Answer
White and Carter (Councils) Ltd v McGregor


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In White and Carter (Councils) Ltd v McGregor the appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which th

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In White and Carter (Councils) Ltd v McGregor the appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which the advertisers would pay according to the terms of a standard form of contract. The respondent, who carried on a garage business, entered into a contract through his sales manager by which the appellant company undertook to prepare and exhibit plates advertising McGregor's business for a period of three years. The contract form was headed by a notice that it was not to be cancelled by the advertiser and one of the express conditions provided to the same effect. Immediately after this contract was signed, a letter containing the following was sent to the appellant company: 'We regret that our Mr Ward signed an order today continuing the advertisements for a further period of three years. He was unaware that our proprietor Mr McGregor does not wish to continue this form of advertisement. Please therefore cancel the order.' The appellant company did not accept the attempted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract [...]. Lord Hodson stated:

It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind but it does not follow that the party at the receiving end of the proffered repudiation is bound to accept it before the time for performance and is left to his remedy in damages for breach.

Answer
remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract


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mpted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract <span>remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated: It is settled as a fundamental rule of the law of contract, that repudiation by one of the parties to a contract does not itself discharge it ... It fo

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In White and Carter (Councils) Ltd v McGregor the appellant company's business was the supply of litter bins to local authorities in urban areas. It was the company's practice to attach advertisement plates to the bins, for which the advertisers would pay according to the terms of a standard form of contract. The respondent, who carried on a garage business, entered into a contract through his sales manager by which the appellant company undertook to prepare and exhibit plates advertising McGregor's business for a period of three years. The contract form was headed by a notice that it was not to be cancelled by the advertiser and one of the express conditions provided to the same effect. Immediately after this contract was signed, a letter containing the following was sent to the appellant company: 'We regret that our Mr Ward signed an order today continuing the advertisements for a further period of three years. He was unaware that our proprietor Mr McGregor does not wish to continue this form of advertisement. Please therefore cancel the order.' The appellant company did not accept the attempted cancellation and displayed the advertisements during the ensuing three years. The respondents refused to pay and the appellant company sought to recover the sum due under the contract. It was held by the House of Lords that the contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated:

It is settled as a fundamental rule of the law of contract, that [...] ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind but it does not follow that the party at the receiving end of the proffered repudiation is bound to accept it before the time for performance and is left to his remedy in damages for breach.

Answer
repudiation by one of the parties to a contract does not itself discharge it


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he contract remained unaffected by the unaccepted repudiation and the appellant company was entitled to recover the sums due under the contract. Lord Hodson stated: It is settled as a fundamental rule of the law of contract, that <span>repudiation by one of the parties to a contract does not itself discharge it ... It follows that, if, as here, there was no acceptance (of the breach), the contract remains alive for the benefit of both parties and the party who has repudiated can change his mind

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There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in [case] that if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract.
Answer
Stocznia Gdanska SA v Latvian Shipping Co (No 3)


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There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in Stocznia Gdanska SA v Latvian Shipping Co (No 3) that if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract.</

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There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in Stocznia Gdanska SA v Latvian Shipping Co (No 3) that [...].
Answer
if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract


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>There is some judicial dispute as to whether, once the innocent party has affirmed the contract, his affirmation is irrevocable. Treitel prefers the view expressed obiter in Stocznia Gdanska SA v Latvian Shipping Co (No 3) that if, after the innocent party's affirmation, the party in default continues to refuse to perform, the innocent party should not be precluded from terminating the contract.<body><html>

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives ([ case ]).
Answer
Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889


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an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives (<span>Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).<span><body><html>

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed [...] between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).
Answer
a period of time in order to decide


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ticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed <span>a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).<span><body><html>

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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under [...]. The innocent party is allowed a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).
Answer
no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date


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When an innocent party is faced with a repudiatory anticipatory breach (i.e. an anticipatory breach of a condition or a serious anticipatory breach of an innominate term) he is under no obligation to sue at once, but can elect to affirm the contract and wait for performance on the due date. The innocent party is allowed a period of time in order to decide between these two alternatives (Stocznia Gdanska SA v Latvian Shipping Co (No 3) [2002] EWCA Civ 889).

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The charterers of a ship informed the owners of their intention to repudiate the charterparty on the grounds that the ship was not 'seaworthy' (the ship was indeed unseaworthy) and that ongoing repairs had caused serious delays (which they certainly had). The owners replied that they would treat the contract as wrongfully repudiated and that they would claim damages accordingly. The Court of Appeal found in favour of the owners: neither the unseaworthiness by itself, nor the delay caused by the owners' breach of contract, entitled the charterers to treat the charterparty as repudiated – the court took the view that the charterers could have been adequately compensated by a claim in damages. Ironically, the owners, despite their own serious breaches of contract, were then entitled to damages for the wrongful repudiation by the charterers.
Answer
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26


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For example, in the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, the charterers of a ship informed the owners of their intention to repudiate the charterparty on the grounds that the ship was not 'seaworthy' (the ship was indeed unseaworthy) and t

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For example, in the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, the charterers of a ship informed the owners of their intention to repudiate the charterparty on the grounds that the ship was not 'seaworthy' (the ship was indeed unseaworthy) and that ongoing repairs had caused serious delays (which they certainly had). The owners replied that they would treat the contract as wrongfully repudiated and that they would claim damages accordingly. The Court of Appeal found in favour of the owners: neither the unseaworthiness by itself, nor the delay caused by the owners' breach of contract, entitled the charterers to treat the charterparty as repudiated – the court took the view that the charterers [...]. Ironically, the owners, despite their own serious breaches of contract, were then entitled to damages for the wrongful repudiation by the charterers.
Answer
could have been adequately compensated by a claim in damages


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eal found in favour of the owners: neither the unseaworthiness by itself, nor the delay caused by the owners' breach of contract, entitled the charterers to treat the charterparty as repudiated – the court took the view that the charterers <span>could have been adequately compensated by a claim in damages. Ironically, the owners, despite their own serious breaches of contract, were then entitled to damages for the wrongful repudiation by the charterers.<span><body><html>

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An implied anticipatory breach can be seen in the case of [ case ] where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though the father was still alive and thus the date for performance had not yet arrived.
Answer
Frost v Knight (1872) LR 7 Exch 111


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An implied anticipatory breach can be seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the

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An implied anticipatory breach can be seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though [...]
Answer
the father was still alive and thus the date for performance had not yet arrived.


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t promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the plaintiff could immediately sue the defendant on the promise, even though <span>the father was still alive and thus the date for performance had not yet arrived.<span><body><html>

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An implied anticipatory breach can be seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the [...], even though the father was still alive and thus the date for performance had not yet arrived.
Answer
plaintiff could immediately sue the defendant on the promise


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seen in the case of Frost v Knight (1872) LR 7 Exch 111 where the defendant promised the plaintiff that he would marry her when his father died. While his father was still alive, the defendant broke off the engagement. It was held that the <span>plaintiff could immediately sue the defendant on the promise, even though the father was still alive and thus the date for performance had not yet arrived.<span><body><html>

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Question
Anticipatory breach may be [...].
Answer
express or implied by words or conduct


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Anticipatory breach may be express or implied by words or conduct.

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The defendant agreed to employ the plaintiff as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May the defendant wrote and told the plaintiff that his services were no longer required. The plaintiff immediately sued the defendant. The defendant argued that the plaintiff should not succeed in his action unless he could show that he was ready and able to perform his obligations on 1 June. The court found in favour of the plaintiff. He had a choice as to whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated.
Answer
Hochster v De la Tour


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In Hochster v De la Tour the defendant agreed to employ the plaintiff as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May the defendant wrote and told the plaintiff t

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In Hochster v De la Tour the defendant agreed to employ the plaintiff as a courier on foreign tours for a period of three months starting from 1 June. But on 11 May the defendant wrote and told the plaintiff that his services were no longer required. The plaintiff immediately sued the defendant. The defendant argued that the plaintiff should not succeed in his action unless he could show that he was ready and able to perform his obligations on 1 June. The court found in favour of the plaintiff. He had a choice as to [...].
Answer
whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated


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the defendant. The defendant argued that the plaintiff should not succeed in his action unless he could show that he was ready and able to perform his obligations on 1 June. The court found in favour of the plaintiff. He had a choice as to <span>whether to wait for the date of performance, in which case he would need to be ready to perform his obligations, or to treat the contract as immediately repudiated.<span><body><html>

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Question
Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will immediately accrue to the innocent party ([ case ]).
Answer
Hochster v De la Tour (1853) 2 E & B 678


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>Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will immediately accrue to the innocent party (Hochster v De la Tour (1853) 2 E & B 678).<html>

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Question
Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will [...] (Hochster v De la Tour (1853) 2 E & B 678).
Answer
immediately accrue to the innocent party


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Where a party indicates, in advance of the date for performance, that he will not perform his contractual obligations, this is known as anticipatory breach. A right of action will immediately accrue to the innocent party (Hochster v De la Tour (1853) 2 E & B 678).

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Although the right of election is well established in the law, a question about its across-the- board application was raised in [ case ], where Geys’ employers were in repudiatory breach of contract in dismissing him. Despite having been taken at once to clear his desk and escorted from the building, Geys declined to accept the contract as at an end. On the facts, this made a difference of several million euros to the ‘compensation payment’ to be made to Geys. However, the employers argued that the usual ‘elective’ rule does not apply to employment contracts; rather, in the event of a repudiatory breach of such a contract, and irrespective of the innocent party’s wishes, it was argued that the contract is automatically at an end. While support for both views—both for and against the application of the elective rule to employment contracts—could be found in an extensive and inconsistent case-law, the majority of the Supreme Court (Lord Sumption dissenting) preferred to treat the usual rule as applicable. Lord Hope, capturing the majority’s thinking, observed (at para 15): ‘The automatic theory can operate to the disadvantage of the injured party [i.e. Geys] in a way that enables the wrongdoer to benefit from his own wrong. The law should seek to avoid such an obvious injustice. Where there is a real choice as to the direction of travel, the common law should favour the direction that is least likely to do harm to the injured party.’
Answer
Société Générale v Geys [2012] UKSC 63


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Although the right of election is well established in the law, a question about its across-the- board application was raised in Société Générale v Geys [2012] UKSC 63, where Geys’ employers were in repudiatory breach of contract in dismissing him. Despite having been taken at once to clear his desk and escorted from the building, Geys declined to acc

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Question
The innocent party must therefore make his decision to terminate the contract [...] (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'
Answer
known to the party in default


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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'A

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The innocent party must therefore make his decision to terminate the contract known to the party in default ([ case ]). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'
Answer
Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193


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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no

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Question
The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in [ case ], where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'
Answer
Howard v Pickford Tool Co Ltd [1951] 1 KB 417


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ead>The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'<html>

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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by [ who ], in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'
Answer
Asquith LJ


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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: 'An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights

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The innocent party must therefore make his decision to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: '[...].'
Answer
An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind


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to terminate the contract known to the party in default (Vitol SA v Norelf Ltd, The Santa Clara [1996] 3 All ER 193). The point was made strikingly by Asquith LJ, in Howard v Pickford Tool Co Ltd [1951] 1 KB 417, where he observed that: '<span>An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind.'<span><body><html>

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The general rule is that, where there is breach of a primary obligation, the other primary obligations of both parties, so far as they have not been fully performed, remain unchanged. However, to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with serious consequences, such breach shall entitle the innocent party to [...].
Answer
elect to put an end to all primary obligations remaining unperformed


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to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with serious consequences, such breach shall entitle the innocent party to <span>elect to put an end to all primary obligations remaining unperformed. <span><body><html>

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The general rule is that, where there is breach of a primary obligation, [...]. However, to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with serious consequences, such breach shall entitle the innocent party to elect to put an end to all primary obligations remaining unperformed.
Answer
the other primary obligations of both parties, so far as they have not been fully performed, remain unchanged


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The general rule is that, where there is breach of a primary obligation, the other primary obligations of both parties, so far as they have not been fully performed, remain unchanged. However, to this general rule there is an important exception – where the primary obligation which has been breached is a condition or there is a breach of an innominate term with s

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FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.
Answer
Brikom Investments Ltd v Carr [1979] QB 467


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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to c

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because [...], e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.
Answer
the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it


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who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because <span>the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an eq

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because [...] (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.
Answer
the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases


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pplied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because <span>the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because the landlords had waived thei

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Brikom Investments Ltd v Carr [1979] QB 467 FACTS: The landlords of certain flats offered leases to sitting tenants. By these leases, the landlords undertook to maintain the structure of the blocks and the tenants undertook to contribute to the cost. Before the leases were executed, the landlords stated orally to the tenants' association and to some individual tenants that they would repair the roofs at their own expense. At this time, the roofs were in need of repair. The landlords carried out the repairs and claimed payment according to the terms of the leases. The first defendant was an original lessee who admitted that she would have taken the lease regardless of the landlords' statement. The second and third defendants were assignees from original lessees. HELD by the Court of Appeal: the claim against the first defendant failed because the principle of promissory estoppel applied to all cases where a party to whom a representation or promise had been made had in fact relied on it, e.g. by going ahead with a transaction under discussion, and that the claim against the second and third defendants failed because the estoppel raised against the landlords was an equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because [...]
Answer
the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.


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equity intended to be for the benefit of those from time to time holding the leases (Lord Denning). Per Roskill and Cumming-Bruce LJJ (with whom, however, Lord Denning also concurred), the claim against all three defendants failed because <span>the landlords had waived their right to claim the cost of repairs from the tenants and their assignees. In the case of the first defendant, there was a collateral contract since she had given consideration for the landlords' promise by entering the lease in reliance on that promise.<span><body><html>

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Although the principle is not entirely clear, it seems that a concession, waiver, variation, or forbearance promised by one party to the other will be enforced in equity subject to proper notice being given to the other party of the resumption of the strict contractual provisions. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: [case]. There would appear to be a high degree of similarity between waiver and promissory estoppel, the general view being that they are related, yet distinct, doctrines that produce the same effects.
Answer
Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420


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ven to the other party of the resumption of the strict contractual provisions. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: <span>Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420. There would appear to be a high degree of similarity between waiver and promissory estoppel, the general view being that they are related, yet distinct, doctrines that produce the sa

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Although the principle is not entirely clear, it seems that a concession, waiver, variation, or forbearance promised by one party to the other will [...]. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420. There would appear to be a high degree of similarity between waiver and promissory estoppel, the general view being that they are related, yet distinct, doctrines that produce the same effects.
Answer
be enforced in equity subject to proper notice being given to the other party of the resumption of the strict contractual provisions


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Although the principle is not entirely clear, it seems that a concession, waiver, variation, or forbearance promised by one party to the other will be enforced in equity subject to proper notice being given to the other party of the resumption of the strict contractual provisions. Proper notice will involve the honouring of any time period contained in the original concession, otherwise, equity will insist on a reasonable period of notice: Charles Rickards Ltd

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The cases show that equity has been more successful than the common law in the enforcement of a waiver or promise of forbearance. In [ case ], Bowen LJ, explained the position as follows:

If persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a court of equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were in before.

Answer
Birmingham and District Land Co v London & North Western Railway (1888) 40 Ch D 268


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The cases show that equity has been more successful than the common law in the enforcement of a waiver or promise of forbearance. In Birmingham and District Land Co v London & North Western Railway (1888) 40 Ch D 268, Bowen LJ, explained the position as follows: If persons who have contractual rights against others induce by their conduct those against whom they have such rights to beli

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Flashcard 1373634694412

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On the basis that something may be destroyed in the same manner by which it was created, a contractual obligation may be discharged [...].
Answer
by agreement


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On the basis that something may be destroyed in the same manner by which it was created, a contractual obligation may be discharged by agreement.

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Some contracts are clearly intended to be divided into parts, e.g. the payment of a salary under a fixed contract of employment. Look at [ case ] as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire depends upon the intention of the parties.
Answer
Rose & Frank v Crompton Bros [1923] 2 KB 261


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Some contracts are clearly intended to be divided into parts, e.g. the payment of a salary under a fixed contract of employment. Look at Rose & Frank v Crompton Bros [1923] 2 KB 261 as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire dep

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Some contracts are clearly intended to be divided into parts, e.g. the payment of a salary under a fixed contract of employment. Look at Rose & Frank v Crompton Bros [1923] 2 KB 261 as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire depends upon [...].
Answer
the intention of the parties


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e & Frank v Crompton Bros [1923] 2 KB 261 as a case where the contract was divisible. This division may also be implied if not specifically referred to. However, the question as to whether a contract is divisible or entire depends upon <span>the intention of the parties.<span><body><html>

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A non-consumer contract, on the other hand, is regulated by the [ statute ] (as amended by Sale and Supply of Goods Act 1994). It states that, where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.
Answer
Sale of Goods Act s 15A


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A non-consumer contract, on the other hand, is regulated by the Sale of Goods Act s 15A (as amended by Sale and Supply of Goods Act 1994). It states that, where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but

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A non-consumer contract, on the other hand, is regulated by the Sale of Goods Act s 15A (as amended by Sale and Supply of Goods Act 1994). It states that, [...]. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.
Answer
where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages


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A non-consumer contract, on the other hand, is regulated by the Sale of Goods Act s 15A (as amended by Sale and Supply of Goods Act 1994). It states that, where the buyer would normally have the right to reject goods by reason of the seller's breach of the implied term, but the breach is so slight that it would be unreasonable for him to reject them, then the breach is not to be treated as a breach of condition but may be treated as a breach of warranty, giving rise to an action for damages. It is open to the parties, usually at the instigation of the buyer, to contract out of this provision.

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A non-consumer contract, on the other hand, is