Business Law Flashcards
The United Kingdom of Great Britain and Northern Ireland (UK) has three distinct legal systems and sets of laws:
- those relating to England and Wales
- those relating to Scotland
- those relating to Northern Ireland.
Public Law (3) vs Private Law (3)
Public Law involves:
- the relationship between individuals and the state
- is concerned with the decisions by, and control of, government bodies.
- is made up of Criminal Law, Constitutional Law, and Administrative Law
Private Law:
- is concerned with the rights and duties between individuals
- covers areas of law such as contract, tort, property, company, and family law.
- The individuals may be private persons, companies, or even a state body such as a local authority if, for example, a citizen has a contract with that local authority.
Differences between Civil and Criminal Law
Basic Terminology
Appellate jurisdiction
Civil jurisdiction
Criminal jurisdiction
Original jurisdiction
System of hierarchy
Appellate jurisdiction
- Courts which have the authority to hear cases that have previously been heard in a lower court.
Civil jurisdiction
- Cases which are concerned with disputes between private citizens or citizens and the state.
Criminal jurisdiction
- Cases concerned with accusations against persons who have broken the criminal law.
Original jurisdiction
- Courts which have the authority to hear cases for the first time where no previous decision in that particular case has been made.
System of hierarchy
- The higher courts have greater authority than those lower down the structure.
Basic Terminology
Bill
Common law
Convention/Treaty
Court of Justice of the European Union
Delegated legislation
European Court of Human Rights
Obiter dicta
Parliamentary sovereignty
Ratio decidendi
Bill
- A document of proposed law to be discussed by Parliament which if passed is called an Act.
Common law
- Generally means law developed by judges through decisions in courts as opposed to laws created by Parliament.
Convention/Treaty
- An international agreement between states.
Court of Justice of the European Union
- The Court of the European Union, dealing with interpretation and breaches of EU law.
Delegated legislation
- Laws made by a body other than Parliament, under powers given by Parliament.
European Court of Human Rights
- The Court set up as the guardian of the European Convention on Human Rights, dealing with breaches of fundamental human rights.
Obiter dicta
- Part of the judgment of a case giving comments on the law but not with reference to the actual facts of the case. Persuasive statements of the law.
Parliamentary sovereignty
- The doctrine which states that laws made by Parliament are the highest form of laws in the UK and must be obeyed by the courts. This has been modified by membership of the EU.
Ratio decidendi
- Part of the judgment of a case giving the legal reasons for the decision. These are binding statements of the law.
The characteristics of English Law (5)
- Long piecemeal development (small changes)
- Absence of codification in many areas
- Judges create, as well as interpret the law
- Adversarial system of trial (having or involving opposing parties or interests in a legal contest)
- Role of lay people
Classification of English Law
Private Law vs. Public Law
Public Law
- Constitutional and administrative law
- Criminal Law
Private (civil) Law (relationships between individuals)
- Tort
- Negligence - Nuisance - Damage to business interests
- Family law
- Probate
- Property
- Land - Chattels (personal possession) - Intellectual (intangible creations of the human intellect)
- Company and partnership law
- Contract
Classification of English Law
Common law vs statutorily law
Common law = Judge-made law as distinguished from legislation passed by Parliament.
Statutory law = law that is created by the legislature in written statutes, as opposed to the unwritten law or common law
Civil and Criminal Law Differences - Purpose
Criminal
- To regulate behaviour
- To promote public order
- To preserve national security
Civil
- To govern the relationships between individuals (or corporations)
- To enforce individual rights and duties
Civil and Criminal Law Differences - Who are the parties
Criminal
- Generally started by the police
- The State prosecutes the defendant
Civil
- Generally started by an individual/company (claimant)
- Sues another individual/company (defendant)
Civil and Criminal Law Differences - Where is the case heard
Criminal
- Proceed to trial in the Magistrates Court (summary offences (minor offences) and offences triable either way)
- Or the Crown Court (indictable offences (worst crimes) and offences triable either way)
Civil
- 90% of cases heard in the County Court
- Or High Court (if more serious)
- Or specialised Tribunals
- Or Alternative Dispute Resolution (ADR) eg. mediation
Civil and Criminal Law Differences - Burden of proof
Criminal
- “Beyond reasonable doubt”
- The burden of doubt falls to the prosecution who must prove “beyond reasonable doubt” that the defendant is guilty
Civil
- “On the balance of probabilities”
- The burden of proof is usually on the claimant who must prove his case “on the balance of probabilities”
Civil and Criminal Law Differences - Penalties
Criminal
- Purpose: punishment; protection; rehabilitation; deterrence
- Examples: fine, imprisonment, community service and probation
Civil
- Purpose: to correct the wrong: to compensate the person who has suffered a loss
- Examples: Damages, injunction, restitution; specific performance
Civil and Criminal Law Differences - Language
Criminal
- Prosecution/ the Crown v. the defendant;
Eg. R v Thomas - R meaning Rex or Regina meaning King or Queen in Latin
Civil
- Individual claimant v. the defendant
Eg. Harvey v Facey (1893)
Only Liability - Someone is liable for …
Common Law (5) vs Equity (5)
Common law
- Developed by Chancellors, In dealing with petitions addressed to the King from citizens complaining about the rigidity of the common law
- Complete system of law
- Does not recognise the existence of equity?
- Upholds rights irrespective of the motives or intentions of the parties
- Remedies available as of right
Equity
- Developed by circuit judges from English customary law applying the principle of stare decisis
- Complements the common law, but could not replace it
- Acknowledges the common law and tries to provide an alternative solution
- Originally, a court of conscience which ordered the parties to do what was just and fair. These principles are contained in equitable maxims, e.g. “He who seeks equity must do equity’ and ‘Delay defeats equity’
- Discretionary remedies
Main features associated with civil and common law systems
Common law systems
- Main source of law= codes and statutes
- Role of judges investigator (known as inquisitorial systems)
- Origins: Continental Europe
- Advantages: Stable and fairer
Civil law systems
- Main source of law= judicial cases and statutes
- Role of judge arbiter (knows as adversarial systems)
- Origins: England and former British Empire:
- Advantages: Flexibility
There are three main sources of English law:
A. Parliament - (Statutes)
B. The Courts - (Common Law/Case Law)
C. International law/EU law?
A. Act of Parliament (statutory law) (3)
Theory of Parliamentary sovereignty
- Direct (primary) legislation: E.g. Health and Safety at Work Act 1974
- Indirect (delegated) legislation: E.g. Management of Health and Safety at Work Regulations 1992; Lifting Operations and Lifting Equipment Regulations 1998.
Parliament is the supreme law-making power in the UK
The Courts cannot, generally, strike down as invalid an Act of Parliament.
Advantages (3) and disadvantages (2) of delegated legislation
Advantages:
- Speed
- Flexibility
- Technical/local knowledge
Disadvantages:
- Certainty in the law
- Laws passed by unelected officials/bureaucrats
Judicial rules and principles of statutory interpretation (4)
- The literal rule:
e.g. Whitely v Chappell (1868-9); London and North Eastern Railway Co v Berriman (1946); Fisher v Bell (1961) - The golden rule: (a rule of construction that interprets a provision, usually a statute, according to the ordinary sense of the words, unless it produces an illogical or inconsistent result)
e.g. R v Allen (1872); Adler v George (1964) - The mischief rule: (a rule of statutory interpretation that helps courts to identify the problem that a law seeks to remedy, and then interpret the language of the law in order to achieve the intended outcome)
e.g. Smith v Hughes (1960) - The purposive/teleological method (an approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law’s purpose)
How are statutes interpreted? – Aids to interpretation
Judges can interpret legislation but NOT fill the gaps and to help them, judges may use a number of tools:
- Intrinsic aids:
Aids to interpretation found in the statute itself.
For example, the 1963 Animal Boarding Act section 5(2) states: ‘In this Act animal means any dog or cat.’
2. External aids:
- Interpretation Act 1978
- Government Reports
- Parliamentary Reports (Hansard) - Pepper v Hart (1993)
- Official Reports
- Oxford English Dictionary and relevant legal textbooks
How are statutes interpreted? – Statutory presumptions
The Courts will assume that certain features are implied in all legislation. These presumptions include the Act of Parliament in question:
- Applies to the whole of the UK
- Does not breach any of the UK’s international agreements
- Does not alter the common law
- Does not repeal earlier Acts of parliament
- Does not interfere with a person’s liberty, private property, or other rights.
- Does not operate retrospectively, i.e. its provisions are not backdated to a date before the act was passed.
- Provides that intention to commit the action must be present for criminal liability.
- Does not intend to remove any matter from the jurisdiction of the courts.
However, if a statute makes it clear that one or more presumptions are not applicable, then the courts must follow the law set down in the statute even if the law adversely affects the rights and liberties of citizens
Sovereign (definition)
A chief ruler with supreme power
B. The Courts (Case law)
Judge-made law is based on the doctrine of binding precedent (stare decisis);
Depends on several factors:
- Court hierarchy
- Whether the facts come within the scope of the previous case
- Whether what the judge said was in the ratio decidendi or merely obiter dicta.
The routes for civil and criminal courts
How judicial precedent works
Ratio Decidendi
Ratio decidendi (a Latin phrase meaning the ‘reason for deciding’)
- Constitutes that part of the judgment that will bind future courts when deciding later cases with similar facts
- It is the ratio decidendi that forms the binding precedent E.g. The Supreme Court decides that ‘Andrew did X and its decision is Z…’ It is the legal principle of the case.
- Hence, when a similar X issue comes up in the Court of Appeal or another lower court, they must follow the decision Z of the Supreme Court unless and until the Supreme Court overrule its decision.
Obiter Dicta
Obiter dicta (a Latin phrase meaning ‘things said by the way’)
- All parts of the judgment which do not form part of the ratio decidendi.
- These are often discussion of hypothetical situations: for example a judge might say ‘Andrew did X, but if he had done Y, my decision would have been… D’.
- None of the obiter dicta forms part of the case law, although judges in later cases may be influenced by it, and it is said to be a persuasive authority.
Example of the application of judicial precedent
In Wolman v Islington LBC (2007) the Court of Appeal found that “It was an offence in Greater London to park a motorcycle on its stand on the pavement with its body and one or both of its wheels on or over the pavement.”
This is how the court interpreted Section 15 of the Greater London Council (General Powers) Act 1974 on any part of the pavement”. Motorbike driver parked his vehicle “with the front wheel of the bike resting on his own property the rear wheel is suspended slightly above the surface of the pavement…”
C. International law
Treaties
Customary International law
Treaties
Agreements between the UK and other countries/international organisations
Examples include:
- The Treaty of the Functioning of the European Union
- The European Convention on Human Rights
- The EU-UK Withdrawal Agreement
- European Union (Future Relationship) Act 2020
- European Union (EU)
UK joined EEC in 1973 following passing of the European Communities Act 1972;
EU has 4 main institutions:
- The Council
- The European Commission
- The European Parliament
- The European Court of Justice (CJEU)
How does EU law affect the UK?
EU creates a new source of law (s 2(4) of the European Communities Act 1972 provides that English law should be interpreted and have effect subject to the principle that EU law is supreme (R v Secretary of State for Employment ex parte Equal Opportunities Commission (1994).
The role of the Courts: Because EU law takes precedence over domestic legislation, the role of the courts has changed as a result of the membership.
Domestic courts (whether in the UK or in any other member state) must follow the interpretation of EU law as given by the CJEU
What about Brexit?
The EU-UK Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community) is a treaty that set the terms of the withdrawal of the UK from the EU and Euratom.
The European Union (Withdrawal Agreement) Act 2020 implemented this agreement into the UK domestic legal order.
As of the 31st of January 2020, the UK is not an EU MS anymore.
But, it still had to follow EU rules until the end of the transition period which ended in the 31st of December of 2020.
The EU and the UK reached a trade agreement EU–UK Trade and Cooperation Agreement and was implemented in the UK’s legal order by the European Union (Future Relationship) Act 2020
- European Convention on Human Rights (ECHR)
- European Convention on Human Rights (ECHR) adopted in 1950;
- This is an international source of law;
- SEPARATE from law and institutions of the EU;
- ECHR provides absolute, limited and qualified human rights;
- Human Rights Act 1998 (HRA), came into force October 2000.
- The HRA implements the Convention rights in the domestic legal order making it easier for those rights to be enforced by UK courts.
Provisions of the Human Rights Act 1998
S.2- Courts must consider decisions from ECtHR;
S.3- all UK legislation must be interpreted in line with Convention rights;
S.4- court can declare UK legislation incompatible with Convention rights (however it cannot overrule an Act of Parliament);
S.6- unlawful for public authority to act in a way incompatible with ECHR.
Offer (diagram)
