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2013-03-17 13:19:59
Law English Legal System

Corporate & Business Law
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  1. What is Law?
    Law can simply be defined as a system of rules.  These rules create rights and obligations, regulate disputes and control behaviour.
  2. What are the 3 main sources of English Law?
    • Legislation
    • Case Law
    • European Community Law
  3. Distinguish the types of Law
    • Statute Law and Common Law
    • Common Law and Equity
    • Civil Law and Criminal Law
  4. Describe the differences between Statute Law and Common Law
    Statute Law originates from Parliament (Acts of Parliament) whereas Common Law originates from decisions by judges in previous court cases.  The two soures of Law co-exist and where the Common Law adequately deals with an area of Law there may be no need for Parliament to create any legislation.
  5. What are the two distinct tyes of Case Law?
    • Common Law
    • Equity
  6. What is a similarity between Common Law and Equity?
    • Common Law and Equity were both developed by judges deciding legal principles in court cases.
    • Both are unwritten laws
    • Common Law and Equity are subject to Judicial Precedent
  7. What is the main difference between how Common Law and Equity developed?
    • The main difference is the way each was developed:
    • Common Law originally developed from deciding cases according to local customs which eventually became common to the whole country.  This is how the doctrine of precedent originally began.  Common Law was extremely restrictive and inflexible.  Historically in order to bring an action a writ had to be obtained.  If no writ was available for a particular action no claim could be brought, the only remedy was damages.
    • Equity was initially developed by the Court of Chancery in a response to a need and demand for equitable remedies and to supplement the restrictive Common Law system.  The court based its decisions on what would be a fair and equitable outcome in a case rather than the more rigid decisions and remedies originating from the Common Law courts.  Equity, in developing piecemeal to remedy injustices of the Common Law, is an incomplete system of aw whereas Common Law is a complete system.
  8. What are the differences between Common Law and Equity?
    • Common Law rights and remedies are available as a right.  Equity is based on fairness and justice, and so its rights and remedies are given at the discretion of the court.
    • Common Law is principally concerned with rights and obligations over property, Equity is generally concerned with personal rights and obligations.  For example, the Common Law remedy for damages for breach of comtract compensates the innocent party for his financial loss, whereas the Equitable remedy of specific performance compels a person to carry out a contractual obligation.
  9. For Equity what are the well known principles the court uses to exercise its discretion?
    • "Delay defeats the Equity", which  means that anyone who wishes to bring an equitable action must do so as soon as practicle.  If a claimant delays he will lose his right to equitable remedies.
    • "He who comes to Equity must come with clean hands".  This means that only those who have been fair in their own actions will be able to claim equitable remedies.
  10. If there is a conflict what prevails? Common Law or Equity?
    If there is a conflict, Equity prevails over Common Law.
  11. What are the differences between Civil Law and Criminal Law?
    • Civil Law and Criminal Law have difference aims.
    • Civil Law and Criminal Law have different terminology.
    • Civil Law and Criminal Law have different outcomes.
    • Civil Law and Criminal Law have different levels of burden of proof.
  12. What is the aim of Civil Law?
    Civil Law sets out the rights and duties of persons between themselves.  The person whose rights have been infringed can claim a remedy from the wrongdoer.  The aim, therefore, of the Civil Law is to provide a means whereby an injured party can obtain compensation.
  13. What is the aim of Criminal Law?
    Criminal Law is concerned with conduct that is considered so undesirable that the STATE punishes persons who transgress.  The aim, therefore, of the Criminal Law is to regulate society by the threat of punishment.
  14. What is the outcome of Civil Law?
    If the claimant can prove the wrong on the BALANCE OF PROBABILITIES his litigation is successful and the defendant is held liable.  The Civil court will order the defendant to pay damages or it might order some other remedy such as specific performance or injunction.
  15. What is the outcome of Criminal Law?
    If the STATE can prove the offense BEYOND RESONABLE DOUBT the prosecution is successful and the defendant is found guilty of the offense and convicted, if not he is acquitted.  The Criminal court will sentence the defendant to a fine or it might impose some other punishment such as imprisonment.
  16. What are the major Criminal Courts?
    • The Magistrates Courts, where magistrates conduct trials of minor crimes and either way offenses.
    • The Crown Courts, where a judge sitting with a jury conducts trials of serious crimes or either way offenses
  17. Describe the County Court
    • The County Courts hear the first instance civil claims in for example contract, tort, divorce.
    • The claimant will usually issue a lesser value and less complex case in the County Court.
    • A District judge sitting alone deals with small track claims.
    • A Circuit judge sitting alone hears fast track and multi track claims.
    • Appeals from the County Court can be either to the High Court or the Court of Appeal.
  18. Describe the High Court of Justice
    • The High Court is divided into three divisions; the Queens Bench Division, the Chancery Division and the Family Division.
    • At first instance a single High Court judge sits alone, but as a Divisional (appellate) Court two or sometimes three High Court judges sit.
    • Appeal from the High Court's first instance jurisdiction lies to the Court of Appeal; although exceptionally a leap-frog may be made direct to the Supreme Court if the appeal is on a point of law of importance on which there is already in existance a binding Court of Appeal precedent.  Appeals from the Divisional Courts lie to the Supreme Court.
  19. Describe the Queen's Bench Division
    • The Queen's Bench Division mainly hears the first instance contract and tort multi-track claims.
    • The Queen's Bench Divisional Court hears judicial review cases.  An important function of the court is to review the quality of the decisions in the lower courts.  The importance of judicial review was shown in the challange made by Virgin to the award of the West Coast Main Line Franchise to First Group.  Virgin said the award of the contract had been unfair and applied for judicial review of the governments decision.  The mere threat of the review caused the government to re-consider the award for the contract.
  20. Describe the Chancery Division
    • The Chancery Division its first instance civil jurisdiction includes disputes arising from  wills and probate matters, company law, partnership law, intellectual property disputes and corporate and personal insolvency issues.
    • The Chancery Divisional Court hears appeals from the County Courts on probate and insolvency matters.
  21. Describe the Companies Court
    • The Companies Court is part of the Chancery Division.
    • Its main role is to deal with the compulsory liquidation of companies and atters arising from the Insolvency Act and the Companies Act.
  22. Describe the Family Division
    • The Family Division it has its first instance civil jurisdition in all matrimonial matters
    • The Family Divisional Court hears appeals from the Magistrates Court and County Court on family matters.
  23. Describe the Court of Appeal (Civil Division)
    • The Civil Division of the Court of Appeal hears appeals from the County Courts and the High Courts of Justice.
    • Normally, three Lord Justices of Appeal will sit to hear the case.
    • Appeal from a decision of the Court of Appeal lies to the Supreme Court.
  24. Explain the three-track system
    • The three-track system is of particular relevance to contract and tort claims in both the County Court and the High Court.
    • The County Court will hear all cases allocated to the small claims track, the majority of fast track cases and some multi-track cases, the High Court hears some fast track cases and most multi-track cases.
    • The small claims track is for simple claims valued at no more than £5000.  The final hearings tend to be less formal and litigants are encouraged to represent themselves, as costs of legal representation are not generally awarded for the successful party.  There are limited grounds for appeal against the judge's decision in the case.
    • The fast track provides a streamlined procedure for moderately-valued claims (£5000-£25000).
    • The multi-track provides a flexible procedure for high value (over £25000) and/or complex claims.
  25. Describe the Small Claims track
    The small claims track is for simple claims valued at no more than £5000.  The final hearings tend to be less formal and litigants are encouraged to represent themselves, as costs of legal representation are not generally awarded for the successful party.  There are limited grounds for appeal against the judge's decision in the case.
  26. Describe the Supreme Court
    • Used to be the House of Lords
    • The Constitutioanl Reform Act 2005 provided for the establishment of a new independent Supreme COurt, seperate from the House of Lords with its own independent appointments system, staff, budget and building.
    • The 12 judges of the Supreme Court are called Justies of the Supreme Court who will no longer be allowed to sit as a member of the House of Lords.  A President is appointed.
    • The previous decisions and precedents of the former House of Lords will still be binding but from now on the Supreme Court is the highest court within the English legal system.
    • It is usual for 5 judges of Supreme Court to hear appeals from The Court of Appeal.  In exceptional circumstamces the Supreme Court will hear appeals from the High Court vie the "leap frog" procedure.
  27. Describe the Magistrates Court
    • The main function of the Magistrates Court is to deal with criminal matters.  However, the court can also sit as a "family proceedings court" and it has a small but important civil first instance jurisdiction dealing with matters under the Children Act 1989, such as council care orders.
    • It also has jurisdiction to deal with recovery of council tax arrears.
  28. Describe the Employment Appeal Tribunal
    • The Tribunal hears appeals on a point of law from the local Employment Tribunals.
    • The Employment Tribunals deal with actions by employees, for example, claims for unfair dismissal.
    • The tribunal is composed of one high Court judge plus two or four laymen.
    • The right of Appeal is to the Court of Appeal.
  29. Tribunals are a different type of body that exist independantly of the courts.  What are the two tyes?
    • Domestic Tribunals.  These are so-called because they are set up by a particular body to regulate the conduct of their members (such as ACCA).
    • Administritive Tribunals.  These are established by an Act of Parliament as a means of setting certain specialised civil disputes as an alternative to the court system.  ie: Employment Tribunal
  30. Describe Employment Trbunals
    • The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 set out the procedural rules relating to the Employment Tribunals
    • There are numerous Tribunals around the country.
    • The Employment Tribunals deal with actions by employees against their employers, for example, claims for unfair dismissal and redundancy.
    • Cases will be heard by one judge, who is usually and Employment Judge (legally qualified chairman)plus ow expert laymen drawn from panel s representing both sides of the industry, one representing employers and one representing employees.
    • Any appeal of a decision of the tribunal lies with the Employment Appeal Tribunal - on law only, not on a factual matter.
    • There are advantages and disadvantages of the Employment Tribunal System for hearing employment cases over the civil court system.
  31. List the 5 Advantages of the Employment Tribunal System over the Civil Court System
    • Accessibilty.  Tribunals are designed to be acccessible fo employees wishing to bring a claim.  the employee may seek legal representation if desired, but can usually act in person.
    • Less Intimidating.  Tribunals are designed to be less intimidating and more informal than the courtroom for claimants.
    • Speed.  Proceedings are generally quicker and therefpre the claim can be settled quicker in the tribunal than the court system.
    • Cost.  The cost of the proceedings in a tribunal is generally less than in the court system.
    • Inpiut of Expert laymen leads to practicality of result.  The purpose of the laymen is to provide relevant experience to assist the chairman.  This can be contrasted with the situation in court where a court judge may have no practical experience of the case he is hearing.
  32. What are the changes from Summer 2013 regarding Employment Tribunal costs?
    A system of fees will be introduced in The Employment and Employment Appeals Tribunals.

    • There will be 2 levels:
    • Level 1 - For claims for deductions from earnings, breach of contract of employment and other payments on termination £160 issue fee and £230 hearing fee.
    • Level 2 - For claims for unfair dismissal, discrimination etc £250 issue fee and £950 hearing fee.

    Should there be multiple claimants then the charges will reflect the number of claimants.
  33. List the 4 disadvantages of the Employment Tribunal System over the Civil Court System
    • Legal Aid not available to claimants.  If the claimant does require legal representation this will have to be self-funded (unless the lawyer takes on the claim on a no win no fee basis), which may cause hardship particularly at a time when the claimant may have lost his job and may discourage potential claimants from bringing a claim.
    • Claim procedures.  Despite the intention that proceedings should be less formal the claimant must complete a form to initiate proceedings (form ET1), may have to attend several hearings and may have to pproduce written evidence, which may prove to be a significant obstacle for a claimant without legal representation.
    • Although teh idea of Employment Tribunals was to make the process of claiming employment rights quicker in heavily populated areas there con be considerable delays (sometimes longer than an application to court)
    • The process, particularly for appeals, doea not always follow previous decisions (called precedents) so thats a claimant cannot predict the outcome of his case on what has been the outcome in those previous cases.
  34. What are the three sources of Law?
    • Legislation
    • Case Law
    • European Community Law
  35. What are the two sub-types of Legislation?
    • Act of Parliament
    • Delegated Legislation
  36. Legislation is created by Parliament in the form of Acts of Parliament.  Describe how legislation may be used to develop law.
    • Enacting new law.  For example the Limited Liability Partnership Act 2000 created a new form of business entity.
    • Repealing and amending existing legislation.
    • Reversing (or overruling) judicial precedent.
    • Consolidating existing statute (ie bringing together a number of different items of legislation on the same topic).
    • Codifying existing law of all sources (which means bringing together all sources of law on the same topic in one statute) For example, the Partnership Act 1890.
    • Implementing European Community directives.  For example, much of The Equality Act 2010 was made in response to the Equal treatment directive.

    Sometimes an Act may be used for a number of the purposes given above.  for example, the Companies At 2006.
  37. An Act of Parliament is made by Parliament itself sitting in Westminster and not any other organisation.  How does an Act of Parliament originate?
    An Act originates as a Bill, which must go through various stages in both the House of Commons and House of Lords to become an Act of Parliament.  the power of the House of Lords is restricted, they can only block Bills for 1 year, and Finance Bills for just 1 month.
  38. What are the stages an Act must go through to become an Act of Parliament?
    • First Reading.  This is purely formal.  The title of the Bill and the name of the member introducing it are read out by an official and the Bill is then ordered to be printed.
    • Second Reading.  This is a debate on the general principles of the bill.
    • Committee Stage.  At this stage the Bill is examined in detail by a committee.
    • Report Stage.  At the report stage the committee which has considered the Bill will report back to the House on its discussion and proposed amendments.  The House votes on each clause.
    • Third Reading.  This consitutes the final debate on the general principles of the Bill, and a vote is taken.
    • After the Bill has passed through both Houses of Parliament, it receives the Royal Assent.  As soon as the Royal Assent is granted the Bill becomes an Act.
    • Although the Bill becomes an Act (ie law) at the date of Royal Assent, it does not necessarily become operative immediately.  Most Acts come into force piecemeal either on dates specified in the Act or by way of a seperate Commencement Order by way of Statutory Instrument.
  39. Describe what is meant by Doctrine of Sovereignty of Parliament
    • Parliament is sovereign, which means that it has supreme law-making authority. In particular:
    • 1. In theory Parliament can make any law, and in any way, it sees fit.
    • 2. In theory it is only Parliament that can make new law.
    • 3. Each Parliament is sovereign, so that each new Parliament can make a new law, often to repeal an Act of the previous Parliament.
  40. Due to legislative sovereigny of Parliament, the courts cannot question the validity of an Act of Parliament and must apply the law contained within it.  List the two exceptions:
    • The courts must declare void and refuse to apply an Act that contravenes European Community law
    • If an Act contravenes the European Convention on Human Rights, the Human Rights Act 1998 states that the High Court and courts above the High Court in the court hierachy may make a declaration of incompatibility (though they, and all other courts and tribunals, must still apply the incompatible Act) which is a direction that Parliament pass a new Act which will be compatible.
  41. Describe delegated legislation
    Delegated legislation arises where Parliament delegates its law makin gpowers to others.  Powers are given to create delegated legislation to other bodies or individuals in the enabling Act or the parent Act.  The parent Act will actually delegate the power to others to create legislation required by teh Act and specifically state which matters are delegated.  It is possible delegated legislation is more significant than are Acts of Parliament given the output greatly exceeds that of Parliament.
  42. List the four types of delegated legislation:
    • STATUTORY INSTRUMENTS.  The most common and important form of delegated legislation are Statutory Instruments.  These are drafted by government ministers and civil servants.  The parent Act of parliament might only contain the general purpose and aims of the Act.  The statutory instrument then deals with the detailed regulations required to make the Legislation workable and provides much greater technical detail.  They are also used to bring sections of the Acts into force.  Acts of Parliament are often brought into force in stages.  The Companies Act was passed in 2006 but Directors duties only came into force in 2009 and statutory instrument was used to achieve this.
    • ORDERS IN COUNCIL.  Orders in Council are created where legislation is made through the Privy Council.  This avoids the need to go through the full parliamentary process and can therefore be used where there is a need for emergency measures or consititutional matters where a statutory instrument would be inappropriate.
    • BYE LAWS.  Bye laws are laws made by local authorities dealing with local issues.
    • PROFESSIONAL REGULATIONS.  Certain bodies may make regulations given the force of law, example ACCA for the accounting profession.
  43. What are the advantages of the use of Delegated Legislation as compared with statute?
    • Statutory Instruments save Parliamentary time.  Parliament can spend time debating the main principles of the Act and the day to day detail can be then dealt with by the relevant government ministry.  Parliament would not have sufficient time to deal with all the detailed drafting dealt with by statutory instruments.
    • Delegated legislation may need or benefit from expertise provided from the appropriate government ministry or by professional group and industry experts.  The legislation may be technical in nature and MPs would not have sufficient knowledge to deal with this.  In the case of bye laws local knowledge would be needed.
    • Delegated legislation can be very flexible.  Statutory instruments can be used to change perhaps one detail in previous legislation without having to introduce a new Act.  For example where only the level of a fine needs to be changed, or an amount such as the amount of earnings per week that can be claimed for redundancy is increased.
    • Delegated Legislation can enable legislation to be made when a quick legislative response is required, for example, in an emergency situation.
  44. What are the disadvantages of the use of Delegated Legislation as compared with statute?
    • The main disadvantage of statutory instruments in particular is that they create a number of different souces of law.  It is not possibel to just go on one statute to ascertain what the law is in relation to a particular situation or problem and it may be necessary to refer to a statute and then a series of different statutory instruments to piece together all the relevant legislation.  This can, therefore, make it difficult to keep up with legislation for the public or anyone using the legislation and can cause confusion.
    • Delegated legislation can be seen as undemocratic as the law is effectively being made by the MPs who are elected for this purpose, there is also the possibility of a lack of accountability.
    • Parliament may loose control of its law making function with so many new laws being made by so many different bodies.
  45. In order to lessen the effect of the disadvantages of delegated legislation, what are the controls in place:
    • PARLIAMENTARY CONTROLS.  Parliament can create controls through the parent Act by only delegating very specific details to be dealt with through delegated legislation.  If the parent Act states that the person or body to whom powers are delegated can make such regulations as they see fit, inevidently this may lead to less control.
    • Within parliament there is a Joint Select Committee on Statutory Instruments with the function of scrutinising the drafting of statutory instruments, although not their technucal content.
    • Delegated legislation must go through the correct parliamentary procedures before it becomes law.
    • a) Some statutory instruments must be approved by an affirmative resolution of Parliament.
    • b) The majority of statutory instruments can be challenged within 40 days of being laid before Parliament (the 40 day rule).
    • CONTROLS BY THE COURTS. There are the following controls imposed by the courts:
    • a) As with all legislation, the Courts have to interpret legislationusing general rules of interpretation.  Delegated legislation which creates absurd results in practice may be curtailed by the courts.
    • b)Delegated legislation can be the subject of judicial review in the courts (Queens Bench Division of the High Court).  it can be challenged on the grounds that the delegated person or body exceeded the powers given to them in creating the legislation and thus acted ultra vires.
    • c) Under the provisions of the HUMAN RIGHTS ACT 1998, the courts can refuse to apply delegated legislation (except Orders-in-Council) to the extent that it contravenes human rights.  Courts can strike out such delegated legislation that is found to be contart to the Human Rights Act 1998.