Contract, Tort & Restitution

(1)

1 Blackstone’s Statutes on

Contract, Tort &

Restitution

2011–2012

22nd edition

edited by

F. D. Rose

PhD, LLD, DCL, of Gray’s Inn, Barrister-at-Law

Professor of Commercial Law, University of Bristol

3

00-Rose-Prelims.indd iii

(2)

3

Great Clarendon Street, Oxford OX2 6DP

Oxford University Press is a department of the University of Oxford. lt furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in

Oxford New York

Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto

With ofﬁ ces in

Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries

Published in the United States

by Oxford University Press Inc., New York This selection © F. D. Rose 2011

The moral rights of the author have been asserted

Contains public sector information licensed under the Open Government Licence v1.0

(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm) Crown copyright material is reproduced with the permission of

the Controller, HMSO (under the terms of the Click Use licence) Database right Oxford University Press (maker)

First published by Blackstone Press

First edition 1987 Ninth edition 1998 Seventeenth edition 2006 Second edition 1989 Tenth edition 1999 Eighteenth edition 2007 Third edition 1991 Eleventh edition 2000 Nineteenth edition 2008 Fourth edition 1993 Twelfth edition 2001 Twentieth edition 2009 Fifth edition 1994 Thirteenth edition 2002 Twenty-ﬁ rst edition 2010 Sixth edition 1995 Fourteenth edition 2003 Twenty-second edition 2011 Seventh edition 1996 Fifteenth edition 2004

Eighth edition 1997 Sixteenth edition 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above

You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available

Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain

on acid-free paper by MPG Books Group ISBN 978–0–19–969247–7 10 9 8 7 6 5 4 3 2 1 00-Rose-Prelims.indd iv 00-Rose-Prelims.indd iv 7/15/2011 6:38:13 PM7/15/2011 6:38:13 PM

(3)

Part I

Statutes

1

Statute of Frauds 1677 1

Fires Prevention (Metropolis) Act 1774 1

Statute of Frauds Amendment Act 1828 1

Parliamentary Papers Act 1840 2

Libel Act 1843 3

Libel Act 1845 3

Mercantile Law Amendment Act 1856 3

Offences Against the Person Act 1861 4

Apportionment Act 1870 4

Law of Libel Amendment Act 1888 5

Factors Act 1889 6

Slander of Women Act 1891 6

Marine Insurance Act 1906 7

Law of Property Act 1925 9

Law Reform (Miscellaneous Provisions) Act 1934 10 Law Reform (Married Women and Tortfeasors) Act 1935 11 Law Reform (Frustrated Contracts) Act 1943 12 Law Reform (Contributory Negligence) Act 1945 13

Crown Proceedings Act 1947 14

Law Reform (Personal Injuries) Act 1948 15 National Parks and Access to the Countryside Act 1949 15 Reserve and Auxiliary Forces (Protection

of Civil Interests) Act 1951 16

Defamation Act 1952 16

Occupiers’ Liability Act 1957 17

Law Reform (Husband and Wife) Act 1962 19

Criminal Law Act 1967 19

Misrepresentation Act 1967 20

Civil Evidence Act 1968 21

Theatres Act 1968 22

Trade Descriptions Act 1968 22

Employers’ Liability (Compulsory Insurance) Act 1969 22 Employer’s Liability (Defective Equipment) Act 1969 22

Administration of Justice Act 1970 23

Taxes Management Act 1970 24

Animals Act 1971 28

Carriage of Goods by Sea Act 1971 32

Unsolicited Goods and Services Act 1971 38

Defective Premises Act 1972 41

Supply of Goods (Implied Terms) Act 1973 44

Consumer Credit Act 1974 48

Health and Safety at Work Act 1974 56

Rehabilitation of Offenders Act 1974 58

00-Rose-Prelims.indd vii

(4)

viii Contents

Reservoirs Act 1975 59

Congenital Disabilities (Civil Liability) Act 1976 59

Dangerous Wild Animals Act 1976 61

Fatal Accidents Act 1976 62

Protection from Eviction Act 1977 64

Torts (Interference with Goods) Act 1977 65

Unfair Contract Terms Act 1977 71

Civil Liability (Contribution) Act 1978 77

State Immunity Act 1978 79

Customs and Excise Management Act 1979 79

Pneumoconiosis etc. (Workers’ Compensation) Act 1979 80

Sale of Goods Act 1979 81

Vaccine Damage Payments Act 1979 99

Highways Act 1980 101

Limitation Act 1980 102

[Senior Courts Act 1981] 119

Administration of Justice Act 1982 121

Civil Aviation Act 1982 121

Forfeiture Act 1982 122

Supply of Goods and Services Act 1982 123

Building Act 1984 133

Occupiers’ Liability Act 1984 133

Police and Criminal Evidence Act 1984 134

Housing Act 1985 137

Landlord and Tenant Act 1985 137

Insolvency Act 1986 137

Latent Damage Act 1986 138

Consumer Protection Act 1987 139

Minors’ Contracts Act 1987 147

Copyright, Designs and Patents Act 1988 148

Housing Act 1988 149

Road Trafﬁ c Act 1988 150

Road Trafﬁ c (Consequential Provisions) Act 1988 157

Employment Act 1989 158

Law of Property (Miscellaneous Provisions) Act 1989 158

Broadcasting Act 1990 160

Courts and Legal Services Act 1990 161

Environmental Protection Act 1990 161

Food Safety Act 1990 168

Water Industry Act 1991 168

Water Resources Act 1991 169

Access to Neighbouring Land Act 1992 172

Carriage of Goods by Sea Act 1992 177

Social Security Contributions and Beneﬁ ts Act 1992 180 Trade Union and Labour Relations (Consolidation) Act 1992 181

Railways Act 1993 191

Criminal Justice and Public Order Act 1994 192

Value Added Tax Act 1994 195

Criminal Injuries Compensation Act 1995 197 Landlord and Tenant (Covenants) Act 1995 201

Merchant Shipping Act 1995 203

Arbitration Act 1996 204

Damages Act 1996 205

00-Rose-Prelims.indd viii

(5)

ix

Contents

Defamation Act 1996 209

Police Act 1996 218

Local Government (Contracts) Act 1997 219

Protection from Harassment Act 1997 219

Social Security (Recovery of Beneﬁ ts) Act 1997 221

Data Protection Act 1998 233

Human Rights Act 1998 234

Late Payment of Commercial Debts (Interest) Act 1998 244

National Minimum Wage Act 1998 249

Contracts (Rights of Third Parties) Act 1999 250 Countryside and Rights of Way Act 2000 254

Finance Act 2000 256

Financial Services and Markets Act 2000 256

Freedom of Information Act 2000 263

Postal Services Act 2000 263

Powers of Criminal Courts (Sentencing) Act 2000 264

Enterprise Act 2002 267

Proceeds of Crime Act 2002 267

Anti-social Behaviour Act 2003 268

Criminal Justice Act 2003 273

Health and Social Care (Community Health and

Standards) Act 2003 274

Civil Partnership Act 2004 277

Gambling Act 2005 278

Mental Capacity Act 2005 279

Companies Act 2006 288

Compensation Act 2006 294

Government of Wales Act 2006 296

National Health Service Act 2006 296

NHS Redress Act 2006 297

Corporate Manslaughter and Corporate Homicide Act 2007 301

Income Tax Act 2007 304

Legal Services Act 2007 304

Tribunals, Courts and Enforcement Act 2007 305 Dormant Bank and Building Society Accounts Act 2008 306

Banking Act 2009 307

Equality Act 2010 307

Third Parties (Rights against Insurers) Act 2010 311

Damages (Scotland) Act 2011 314

Part II

Proposed Statutes

320

(Draft) Negligence (Psychiatric Illness) Bill 320

(Draft) Unfair Contract Terms Bill 322

Defamation Bill 339

Consumer Insurance (Disclosure and Representations) Bill 348

Part III

Statutory Instruments

352

Package Travel, Package Holidays and Package

Tours Regulations 1992 352

Employers’ Liability (Compulsory Insurance) Regulations 1998 358 Provision and Use of Work Equipment Regulations 1998 359

00-Rose-Prelims.indd ix

(6)

x Contents

Unfair Terms in Consumer Contracts Regulations 1999 364 Consumer Protection (Distance Selling) Regulations 2000 370 Electronic Commerce (EC Directive) Regulations 2002 381 Electronic Signatures Regulations 2002 382 Late Payment of Commercial Debts Regulations 2002 385 Financial Services (Distance Marketing) Regulations 2004 385 Damages (Variation of Periodical Payments) Order 2005 386 General Product Safety Regulations 2005 389 Regulatory Reform (Unsolicited Goods and Services Act 1971)

(Directory Entries and Demands for Payment) Order 2005 406 Transfer of Undertakings (Protection of Employment)

Regulations 2006 407

Business Protection from Misleading Marketing Regulations 2008 408 Consumer Protection from Unfair Trading Regulations 2008 409

Part IV

EU Materials

414

Treaty Establishing the European Economic Community

(Treaty of Rome, 1957) 414

Regulation (EC) No 864/2007 (Non-contractual obligations) (Rome II) 415 Regulation (EC) No 593/2008 (Law applicable to contractual

obligations) (Rome I) 415

Part V

International Materials

416

United Nations Convention on the Use of Electronic

Communications in International Contracts 416

Part VI

Codes

418

Draft Common Frame of Reference 418

Index 477

00-Rose-Prelims.indd x

(7)

Alphabetical contents

A Access to Neighbouring Land Act

1992 . . . 172

Administration of Justice Act 1970 . . . 23 Administration of Justice Act 1982 . . . 121 Animals Act 1971 . . . 28

Anti-social Behaviour Act 2003 . . . 268 Apportionment Act 1870 . . . 4 Arbitration Act 1996 . . . 204

B Banking Act 2009 . . . 307 Broadcasting Act 1990 . . . 160 Building Act 1984 . . . 133

Business Protection from Misleading Marketing Regulations 2008 . . . 408

C Carriage of Goods by Sea Act 1971 . . . 32

Carriage of Goods by Sea Act 1992 . . . 177 Civil Aviation Act 1982 . . . 121

Civil Evidence Act 1968 . . . 21

Civil Liability (Contribution) Act 1978 . . . 77 Civil Partnership Act 2004 . . . 277

Companies Act 2006 . . . 288 Compensation Act 2006 . . . 294 Congenital Disabilities (Civil Liability)

Act 1976 . . . 59

Consumer Credit Act 1974 . . . 48 Consumer Insurance (Disclosure and

Representations) Bill . . . 348 Consumer Protection Act 1987 . . . 139 Consumer Protection (Distance Selling)

Regulations 2000 . . . 370

Consumer Protection from Unfair Trading Regulations 2008 . . . 409

Contracts (Rights of Third Parties) Act 1999 . . . 250

Copyright, Designs and Patents Act 1988 . . . 148

Corporate Manslaughter and Corporate Homicide Act 2007 . . . 301 Countryside and Rights of Way

Act 2000 . . . 254

Courts and Legal Services Act 1990 . . . 161 Criminal Injuries Compensation Act

1995 . . . 197

Criminal Justice Act 2003 . . . 273 Criminal Justice and Public Order Act

1994 . . . 192

Criminal Law Act 1967 . . . 19 Crown Proceedings Act 1947 . . . 14

Customs and Excise Management Act 1979 . . . 79

D Damages Act 1996 . . . 205

Damages (Scotland) Act 2011 . . . 314 Damages (Variation of Periodical Payments)

Order 2005 . . . 386

Dangerous Wild Animals Act 1976 . . . 61 Data Protection Act 1998 . . . 233 Defamation Act 1952 . . . 16 Defamation Act 1996 . . . 209 Defamation Bill . . . 339

Defective Premises Act 1972 . . . 41

Dormant Bank and Building Society Accounts Act 2008 . . . 306

Draft Common Frame of Reference . . . 418

E Electronic Commerce (EC Directive)

Regulations 2002 . . . 381 Electronic Signatures Regulations

2002 . . . 382

Employers’ Liability (Compulsory Insurance) Act 1969 . . . 22

Employers’ Liability (Compulsory Insurance) Regulations 1998 . . . 358

Employer’s Liability (Defective Equipment) Act 1969 . . . 22

Employment Act 1989 . . . 158 Enterprise Act 2002 . . . 267

Environmental Protection Act 1990 . . . 161 Equality Act 2010 . . . 307

F Factors Act 1889 . . . 6 Fatal Accidents Act 1976 . . . 62 Finance Act 2000 . . . 256 Financial Services and Markets Act

2000 . . . 256

Financial Services (Distance Marketing) Regulations 2004 . . . 385

Fires Prevention (Metropolis) Act 1774 . . . 1 Food Safety Act 1990 . . . 168

Forfeiture Act 1982 . . . 122

Freedom of Information Act 2000 . . . 263

G Gambling Act 2005 . . . 278

General Product Safety Regulations 2005 . . . 389

Government of Wales Act 2006 . . . 296

H Health and Safety at Work Act 1974 . . . 56

Health and Social Care (Community Health and Standards) Act 2003 . . . 274

00-Rose-Prelims.indd xi

(8)

xii Alphabetical contents

Highways Act 1980 . . . 101 Housing Act 1985 . . . 137 Housing Act 1988 . . . 149 Human Rights Act 1998 . . . 234

I Income Tax Act 2007 . . . 304 Insolvency Act 1986 . . . 137

L Landlord and Tenant Act 1985 . . . 137 Landlord and Tenant (Covenants) Act

1995 . . . 201

Late Payment of Commercial Debts (Interest) Act 1998 . . . 244

Late Payment of Commercial Debts Regulations 2002 . . . 385 Latent Damage Act 1986 . . . 138 Law of Libel Amendment Act 1888 . . . 5 Law of Property Act 1925 . . . 9

Law of Property (Miscellaneous Provisions) Act 1989 . . . 158

Law Reform (Contributory Negligence) Act 1945 . . . 13

Law Reform (Frustrated Contracts) Act 1943 . . . 12

Law Reform (Husband and Wife) Act 1962 . . . 19

Law Reform (Married Women and Tortfeasors) Act 1935 . . . 11

Law Reform (Miscellaneous Provisions) Act 1934 . . . 10

Law Reform (Personal Injuries) Act 1948 . . . 15

Legal Services Act 2007 . . . 304 Libel Act 1843 . . . 3

Libel Act 1845 . . . 3 Limitation Act 1980 . . . 102 Local Government (Contracts) Act

1997 . . . 219

M Marine Insurance Act 1906 . . . 7

Mental Capacity Act 2005 . . . 279 Mercantile Law Amendment Act 1856 . . . 3 Merchant Shipping Act 1995 . . . 203 Minors’ Contracts Act 1987 . . . 147 Misrepresentation Act 1967 . . . 20

N National Health Service Act 2006 . . . 296

National Minimum Wage Act 1998 . . . 249 National Parks and Access to the Countryside

Act 1949 . . . 15

Negligence (Psychiatric Illness) Bill (Draft) . . . 320

NHS Redress Act 2006 . . . 297

O Occupiers’ Liability Act 1957 . . . 17

Occupiers’ Liability Act 1984 . . . 133 Offences Against the Person Act 1861 . . . 4

P Package Travel, Package Holidays and Package

Tours Regulations 1992 . . . 352

Parliamentary Papers Act 1840 . . . 2

Pneumoconiosis etc. (Workers’ Compensation) Act 1979 . . . 80

Police Act 1996 . . . 218

Police and Criminal Evidence Act 1984 . . . 134 Postal Services Act 2000 . . . 263

Powers of Criminal Courts (Sentencing) Act 2000 . . . 264

Proceeds of Crime Act 2002 . . . 267 Protection from Eviction Act 1977 . . . 64 Protection from Harassment Act 1997 . . . 219 Provision and Use of Work Equipment

R Railways Act 1993 . . . 191

Regulation (EC) No 593/2008 (Law applicable to contractual obligations) (Rome I) . . . 415

Regulation (EC) No 864/2007 (Non-contractual obligations) (Rome II) . . . 415 Regulatory Reform (Unsolicited Goods and

Services Act 1971) (Directory Entries and Demands for Payment) Order 2005 . . . 406 Rehabilitation of Offenders Act 1974 . . . 58 Reserve and Auxiliary Forces (Protection of

Civil Interests) Act 1951 . . . 16 Reservoirs Act 1975 . . . 59 Road Trafﬁ c Act 1988 . . . 150

Road Trafﬁ c (Consequential Provisions) Act 1988 . . . 157

S Sale of Goods Act 1979 . . . 81

Senior Courts Act 1981 . . . 119 Slander of Women Act 1891 . . . 6 Social Security Contributions and Beneﬁ ts

Act 1992 . . . 180

Social Security (Recovery of Beneﬁ ts) Act 1997 . . . 221

State Immunity Act 1978 . . . 79 Statute of Frauds 1677 . . . 1

Statute of Frauds Amendment Act 1828 . . . 1 Supply of Goods and Services Act

1982 . . . 123

Supply of Goods (Implied Terms) Act 1973 . . . 44

T Taxes Management Act 1970 . . . 24

Theatres Act 1968 . . . 22

Third Parties (Rights against Insurers) Act 2010 . . . 311

Torts (Interference with Goods) Act 1977 . . . 65

Trade Descriptions Act 1968 . . . 22 Trade Union and Labour Relations (Consolidation) Act 1992 . . . 181 Transfer of Undertakings (Protection of

Employment) Regulations 2006 . . . 407

00-Rose-Prelims.indd xii

(9)

xiii

Alphabetical contents

Treaty Establishing the European Economic Community (Treaty of Rome, 1957) . . . 414 Tribunals, Courts and Enforcement

Act 2007 . . . 305

U Unfair Contract Terms Act 1977 . . . 71

Unfair Contract Terms Bill (Draft) . . . 322 Unfair Terms in Consumer Contracts

United Nations Convention on the Use of Electronic Communications in International Contracts (2005) . . . 416 Unsolicited Goods and Services Act 1971 . . . 38

V Vaccine Damage Payments Act 1979 . . . 99

Value Added Tax Act 1994 . . . 195

W Water Industry Act 1991 . . . 168

Water Resources Act 1991 . . . 169

00-Rose-Prelims.indd xiii

(10)

Editor’s preface

As in previous editions, this book sets out to present the principal legislative contributions to the law of contract, tort and unjust enrichment, together with a selection of speciﬁ c provisions of a more spe-cialist legislative nature which affects the general law on civil liability and reveals something of its wider context.

It has always been intended that this book should include the core materials to be consulted by stu-dents of Contract, Restitution and Torts, a selection of other materials in the area of civil liability, and a few related regulatory and public law provisions. Case law and statute do not exist in isolation, any more than the three main subjects of this book do. They are all part of a dynamic legal architecture, combining elements of old and new, beautiful and ugly, awkward and useful. A citizen may prefer an area of outstanding natural beauty to an industrial estate or a plainly functional new hospital, but the modern landscape cannot be accurately recorded without noting all of its constituents or their differ-ent contributions.

When I began this series of statute books, over twenty years ago, this book was less than a third of the size it is now. One must have mixed views about the accretion of legislative material on what is still regarded as an essentially case law subject; but it is inescapable that the area of civil liability is under constant modiﬁ cation by the legislature and that the modern lawyer must be up to date, not only with new developments, but with the persistent revision of familiar legislation. A proper understanding of the law and how it is developing therefore means that an awareness of proposed and impending reforms, and of codes which inﬂ uence the way in which the law operates in practice, are essential.

As a consequence of a growing number of interests with their own increasingly detailed rules, the law on civil liability inevitably overlaps with many other areas of law and it has been noticeable, on the initial compilation and annual revision of this collection of materials, how far this traditionally case law subject has been affected by a growing amount of specialist legislation. Detailed attention to such enactments is unlikely to be practicable or appropriate in most courses on civil liability and is more likely to occur in other, more public law orientated, courses. But it is a notable feature of the modern law of civil liability that the basic case law principles do not reveal the extent to which, in par-ticular, potentially tortious conduct is legitimated and regulated by legislation. Moreover, modern statutes are increasingly likely to provide for the consequences of transgressions and contract failure; and there is a developing tendency to make criminal wrongdoing the subject of civil procedures. A brief selection of such materials is appropriate in a book such as this.

However, it has always been the distinctive policy behind this book to undertake a fresh and thor-ough revision of materials each year, in order to provide an up-to-date collection which both saves readers work and time in identifying the current status of the leading materials and also offers a research tool for demonstrating the varied way in which the common law of obligations has been modiﬁ ed by formal materials.

Legislative intervention in what has traditionally been regarded as an essentially case law area has been relentless over the last four decades. One feature of the Coalition Government is that it has, for the moment at least, eased, if not to some extent gone into reverse. Thus, it has been announced that the previous Government’s draft Civil Law Reform Bill has been shelved, meaning that, if no alter-native way forward is found, much work by the Law Commission in this area has proved fruitless. Nonetheless, albeit at a leisurely pace, a new Defamation Bill is wending its way through Parliament and the Law Commission’s draft Consumer Insurance (Disclosure and Representations) Bill has been transformed into a Government Bill and therefore likely soon to become law. Moreover, there has been the normal amendment and correction of existing legislation; and the opportunity has been taken to reduce the overall extent of this collection.

00-Rose-Prelims.indd xv

(11)

Editor’s preface

xvi

As usual, in most cases the material in this book is reproduced in its complete, most recent form, all amendments being incorporated within square brackets; occasional omissions are indicated by three dots. Supplementary notes and details of amending provisions, easily available elsewhere, are generally omitted for reasons of space.

I continue to be grateful to my wife, Lynda, for her contribution to revision of these materials. As always, I gladly acknowledge the holders’ rights in copyright materials. And I continue to be grateful for suggestions as to possible revisions of this collection of materials, whether for additions or deletions.

Francis Rose 16 May 2011

00-Rose-Prelims.indd xvi