exam focus Flashcards
what type of cases does the civil court deal with?
- contract disputes
- personal disputes
- company law
- insolvency
what type of cases does the criminal court deal with?
- corruption
- money laundering
- murder
what is the process of going through a civil court?
- claimant (plaintiff) sues defendant
- judgement based on balance of probabilities (liable / not liable)
- appeal
what is a balance of probabilities?
when a decision is made in a civil court which is based on which side is most likely to be telling the truth
what is the process of going through a criminal court?
- prosecutes defendant
- verdict (guilty / not guilty)
- further verdict (convicted & sentenced / acquitted)
- appeal (change sentence, point of law, point of fact)
what are the two types of offences in a criminal court?
- summary offences (minor, lower level crime eg. speeding)
- offences triable on indictment (more serious criminal offences eg. murder)
what are the two types of trials in a criminal court?
- summary trial
- trial on indictment
what is the process of a summary trial in a criminal court?
magistrates court (1-3 judges) –> divisional court of KBD (3 judges) –> supreme court (5+ judges)
OR
if a case is serious enough (eg. rape, murder) it goes to the crown court (1+ judges) instead of magistrates
what is the process of a trial on indictment in a criminal court?
magistrates court (prelim hearing done here) –> crown court (1 judge + 12 jury) –> court of appeal (3 judges) –> supreme court (5+ judges)
what are the two paths for claims in a civil court?
- smaller claims (eg. faulty product, poor service, owed money)
- larger claims (eg. large claims between multi-national companies, breach of contracts)
what is the process for smaller claims in a civil court?
county court (1 judge) –> high court (1 judge) –> court of appeal (3 judges) –> supreme court (5+ judges)
what is the process for larger claims in a civil court?
high court (family / chancery / KBD division) (1 judge) –> court of appeal (3 judges) –> supreme court (5+ judges)
what are examples of specialist courts?
- property court
- business court
what is a tribunal system?
- specialist court with jurisdiction over certain areas of civil laws eg. employment
- more informal & accessible than trad. courts
what are leapfrog appeals?
where cases can be appealed to be moved to a higher court (eg. due to their severity)
what is the kings council?
made up of top level lawyers who have been recognised for their excellence and they often take on more complex legal cases that require a higher level of expertise
what are the 3 POVs needed for the law?
- compliance
- preparation
- challenge
what does compliance refer to in the POV of the law?
essentially what the law says
when to / not to do things
being compliant prevents people from getting sued
what does preparation refer to in the POV of the law?
have to have active awareness about changing laws and staying ahead of it, in order to remain compliant
what does challenge refer to in the POV of the law?
reform the law and challenge the status quo to get it changed
what are the three UK domestic sources of law?
- statutes
- delegated legislation
- case law
what are statutes?
legislation, acts of parliament. they remain in place until repealed
who makes statutes?
- law commission
- house of commons
- house of lords
- royal assent
what is the process of making a statute?
- green paper created by law commission where public made aware of new changes (public consultation)
- green republished as white paper following consultation
- bill created & sent to parliament
- 1st reading, 2nd reading, committee & report stage, 3rd reading all take place in house of commons
- goes to house of lords with same process as house of commons
- goes to royal assent, monarchy approve new statute
what is the interpretation act 1978?
an act guiding how to interpret a statute using five rules :
1. grammatical rule
2. literal rule
3. golden rule
4. mischief rule
5. contextual / purposive approach
what does the grammatical rule refer to when interpreting statutes?
for example, when dealing with lists “etc” has no meaning, so statutes need to be clearly defined and outlined
what does the literal rule refer to when interpreting statutes?
interpret the statute literally. use dictionary definitions of keywords in the statute
what does the golden rule refer to when interpreting statutes?
use the everyday meaning of the word when interpreting the statute
what does the mischief rule refer to when interpreting statutes?
interpret the word in the statute to solve the mischief. almost twist it to fit the offence and details of the offence
what does the contextual / purposive approach refer to when interpreting statutes?
consider the consequences of the offence when interpreting the statute
what is delegated legislation?
it allows gov to make changes to the law without needing to push a new act
who makes delegated legislation?
anyone who parliament has delegated authority to :
- local authorities (bye-laws)
- privy council (orders in council)
- government ministers (statutory instruments)
how is delegated legislation interpreted?
judges can interpret and “strike down” delegated legislation if it is :
- “mad” (irrational)
- “bad” (illegal)
- “badly done” (procedural impropriety)
what is case law?
precedent law based on precedents, which is judicial decisions from previous cases
who makes case law?
judges of the case make case law. there isn’t any acts but previous cases are used to base their decision off of. the interpretations set precedents.
when is a case precedent binding?
supreme court : can follow its own previous decisions or change its mind
court of appeal : must follow supreme court and its own precedents
high court : must follow supreme court and its own precedents
inferior courts : must follow all of the above
what does the civil process cover in dispute resolution?
- contracts
- professional negligence
- reputation (defamation etc)
- property disputes
- insolvency
what is the purpose of litigation in the common law systems?
- part of negotiating process in a dispute
- 80% of cases are “settled” before they even get to court
- court often used as threat & tends to be last resort in common law systems
what is the process of going to court for dispute resolution?
- letters of claim
- allocation to track
- trial
explain the “letters of claim” step for dispute resolution.
- letter warns other side of what you are about to do (regulation in place to prevent intimidation)
- issues of claim - official claim form completed & processed by court and served on defendant within 4mths. includes a statement of value & truth
- detailed defence - defendant has 28days to respond with detailed form, defence & counterclaim to contest dispute
explain the “allocation to track” step for dispute resolution.
- defendant has sent back reply so court give defendant & claimant a questionnaire
- aims to gauge technicality & money involved to find which court / track is suitable
three types of track :
- small claims track (county court)
- fast track (county court)
- multi-track (high court)
explain the “trial” step in dispute resolution.
- claimant goes first (opens the case, explains details. calls up witnesses to be questioned by claimant, then repeat if necessary)
- defendant opens their case (same process as above, just repeated with their witnesses)
- defendant closes their case (gives summary statement)
- claimant closes (summary of their side & highlights faults in the defendants)
- judgement appeal (judge decides winner, reason & remedy)
- appeal judgement if necessary
what are the 3 categories in the MER?
- employee (have the most amount of rights in employment law)
- worker (dont get all rights that employees do. have right to min. wage, holiday pay, pension contributions & discrimination protection)
- self-employed (very little rights beyond basic safety & discrimination)
how do we determine which category to fall into for the MER?
- personal performance
- element of control
- integration of workplace
- “own business” (own equipment, have clients?)
- “mutuality of obligation” (when employer has legal duty to provide work & employee has to do work)
what are the five employee duties?
- use reasonable care & skill
- exercise reasonable care towards fellow workers / public
- obey all reasonable orders
- observe good faith (confidentiality, conflict of interest, director duties)
- observe trade union laws (notice of strike, secret ballot, work related dispute, peaceful picketing)
what does reasonable adjustments mean?
adjustments employers are expected to provide to consider the protected characteristics, particularly disability. eg. blind lecturer requesting to have all seminars in same room to make job more accessible.
what is vicarious liability?
when employer is responsible for wrongs done by employees in the course of their employment
how is an employee classified in vicarious liability?
depends upon element of control and independent contractors
what is the justification for placing blame on employers for an employees actions?
- should employ better people
- should supervise them better
- should have liability insurance (civil liability contribution act 1978)
what is required for an employer to be held responsible for vicarious liability?
need “ordinary course of employment”
what is “ordinary course of employment” in vicarious liability?
needs close connection between the employment and the illegal act. the authorised act is done in an unauthorised way
what is an example of when an employer was found not vicariously liable?
Iqbal v London Transport :
- was a ticket checker
- drove bus instead
- had no close connection between act & employment
- employer not guilty of vicarious liability
what is an example of when an employer was found vicariously liable?
Mohamud v Morrisons :
- employee who was meant to be interacting with customers
- chose to assault customer
- supreme court found morrisons vicariously liable
- sufficient close connection as he done no wrong. abided by job description by interacting with customers
what is a “frolic of your own”?
- no close connection between employment & act
- employees own fault & claimant cannot get compensation from employer
what are the two acts related to whistleblowing?
- public interest disclosure act 1998 (PIDA)
- enterprise and regulatory reform act 2013 (ERRA)
what are the four types of dismissal?
- lawful
- wrongful
- unfair
- redundancy
what are the three of types of lawful dismissal?
- with notice : tends to be due to conduct or capability
- payment in lieu : “garden leave”
- without notice : serious problem & misconduct occurred
what is “with notice” lawful dismissal?
tends to be due to conduct or capability.
- check usual warning processes are complied with
- check terms of contract for notice period or statutory minimum will apply
- ensure proper grievance procedure is followed (ACAS code suggests 2v1w warning before dismissal reached)
what is the statutory minimum notice period for terminating the MER?
none within 1st month
1 week for first 2 years
1 week for each year between 2 - 12 years
12 weeks if over 12 years
what is “payment in lieu” lawful dismissal?
garden leave. happens when job wants you to leave immediately, but have to honour notice period. get paid for not working. happens particularly in industries that deal with confidential / high security info
- 3 months notice period gains 3 months payment in lieu
- removes risk for employer of sensitive info being leaked
what was the Shelton v Morrisons case?
employee leaked colleagues payroll info online. shows importance of payment in lieu dismissal since dismissal compromised sensitive & confidential info
what is “without notice” lawful dismissal?
happens when serious misconduct has occurred.
- gross infidelity (leaking trade secrets to competitors)
- disrepute (ruining rep of firm. not following morality clauses)
- serious misconduct (theft, fraud, violence. flexible definition)
- gross negligence (actions resulting in serious damage. flexible definition)
- serious incapacity (through drugs or alcohol)
- serious breach of safety / confidence
what is an agent?
person authorised to act as a representative of another person
what is a principal?
the person who employs another person (agent) to act on their behalf
what are the three types of agency?
- actual authority
- necessary
- apparent authority
what is necessary authority in terms of an agent?
deals with emergencies.
- agent must be in control of principals property when emergency arises
- agent has to protect principals interest
- must be impossible for agency to get instructions from principal (eg. principal in a coma)
- agent must act in good faith & principals best interests
what is a lasting power of attorney?
when the principal is incapable of control so requires an agent to act on their behalf eg. progressive illness causing lack of mental capacity
what is contract?
an agreement which the courts will enforce. disapproving of loose living though (eg. highwaymen agreement)
what are the six basic elements needed for a contract?
- form
- capacity
- intention
- offer
- acceptance
- consideration
explain the “form” element of a contract.
general rule :
- no formal requirements to form contracts
- can be made written, verbally or by conduct
english law :
- some contracts must be made in particular format or won’t be enforceable
- can be made by deed (signatures witnessed)
- can be made in writing & signed
- can be evidenced by writing
explain the “capacity” element of a contract.
double check that person involved in contract has capacity / power to agree & sign. watch out for :
- drunks & similar
- mentally disordered (mental capacity act 2005)
- minors
explain the “intention” element of a contract.
courts check if clear that parties intended to enter contract
explain the “offer” element of a contract.
a definite promise to be bound by certain terms
what are paragraphs in a contract?
known as terms or clauses, can be express or implied
what are conditions of a contract?
- fundamental terms of a contract (can have serious consequences if breached)
- breach of condition is serious (innocent party can end contract & claim compensation)
what are warranties of a contract?
- terms which are ancillary to the main purpose (minor parts of the contract)
- breach of warranty is less serious (innocent party can only claim compensation)
what are boilerplate clauses in a contract?
refers to the standard, common clauses found in a contract. collective name for certain standard terms
give seven examples of a boilerplate clause.
- interpretation clauses
- price variation clauses
- liquidated damages clauses
- force majeure clauses
- retention of title clauses
- choice of law clauses
- exclusion clauses
what is an exclusion clause?
clause which aims to limit / exclude a party’s responsibility for things going wrong. should be written in express terms. it is controlled by law.
what are the three steps included in the control of an exclusion clause?
- incorporation
- relevance
- must not be adversely affected by statute (UCTA 1977, CRA 2015)
explain the incorporation step in the control of an exclusion clause.
exclusion clause must be incorporated into contract somehow. if unclear that exclusion clause has been agreed to then :
- reasonable notice must be given before contract made (other person must know clause exists)
- “notice” can be given verbally or displayed through posters
- “reasonable” refers to whether a reasonable man would have noticed the notice (has NOTHING to do with content of notice at this point, all to do with style, size, location etc)
explain the relevance step in the control of an exclusion clause.
refers to the relevance of the wording to the notice
explain how UCTA 1977 relates to statute in exclusion clauses.
unfair contract terms act 1977. only deals with B2B contracts.
section 2 subsection 1 :
cannot limit / exclude liability for death or personal injury caused by negligence
section 2 subsection 2 :
can limit / exclude liability if some other loss / damage is caused by negligence if reasonable to do so
related as can help to determine whether exclusion clause can apply to specific situation and whether it is held up by law. eg. if employee dies at work being crushed by machinery, employer cannot claim exclusion clause as UCTA contradicts it
explain how CRA 2015 relates to statute in exclusion clauses.
consumer rights act 2015. only deals with B2C contracts.
section 65 :
- cannot limit / exclude liability for death or personal injury caused by negligence
section 62 schedule 2 :
- might be able to limit / exclude liability for other things if classed as “fair” by the court
related as can help to determine whether the exclusion clause is held up by statute. if it is, then business can claim exclusion clause and accept no responsibility
which act are the terms “fair” and “unfair” used in?
CRA 2015
consumer rights act 2015
which act is the term “reasonable” used in?
UCTA 1977
unfair contract terms act 1977
how is “unfair” defined in relation to the CRA 2015?
considered “unfair” if :
- causes a significant imbalance in parties rights & obligations under the contract
- is of detriment to the consumer
chapelton v barry council
exclusion clause (incorporation)
- chapelton got injured by deck chair
- tried to claim compensation from barry council
- barry claimed exclusion clause so not liable
- exclusion clause was on back of receipt in very fine print
- was deemed that notice was not reasonable
- exclusion clause therefore not held up
- barry council held liable for chapeltons injury
andrews v singer
exclusion clause (relevance)
- exclusion clause was about “new cars”
- claim was about “old cars”
- wording of exclusion clause not relevant to claim
- exclusion clause not held up
- singer held liable
thornton vs shoe lane parking
exclusion clause (relevance)
- drove to carpark he hadnt been to before
- was injured in carpark, decided to sue
- car park had three exclusion clauses
- displayed largely in car park & on back of ticket
- notices actually placed too late as only seen when inside car park
- notices inside car park & tickets did not have reasonable notice
- notice outside car park had irrelevant wording relating to car damage
- exclusion clauses therefore not held up
- shoe lane parking held liable for thorntons injury
- thornton got money
what are the four reasons for the termination of a normal contract?
- performance
- agreement
- breach
- frustration
why can a contract end due to frustration?
can be ended due to unforeseen & unexpected circumstances beyond your control which make the contract impossible / pointless to continue.
can become impossible / pointless if :
- subject is destroyed
- activity becomes illegal
- subject becomes unavailable
- subject is incapacitated / dead
- event doesnt happen
termination of a contract
taylor vs caldwell
frustration (subject is destroyed)
- theatre burned down, no ones fault
- physically impossible to act in play
- can’t meet conditions of contract
- terminated due to frustration
termination of a contract
re shipton anderson & co
frustration (activity becomes illegal)
- meant to deliver cargo of grain
- war broke out
- gov requistioned cargo
- couldn’t fulfill contract
- shipment became illegal
termination of a contract
morgan v manser
frustration (subject becomes unavailable)
- morgan called up for military service
- meant to perform in music hall
- contract became frustrated
- morgan had obligations elsewhere
termination of a contract
condor v barron knights
frustration (subject incapacitated / dead)
- condor part of barron knights
- fell ill
- became incapacitated
- unable to continue drumming for band
- impossible to continue so contract frustrated
termination of a contract
krell v henry
frustration (event doesnt happen)
- henry hired flat to watch coronation procession from window
- coronation postponed due to kings illness
- henry refused to pay krell as didnt get to see coronation
- sole purpose of contract deemed to be destroyed
- contract became frustrated
- henry didn’t have to pay for hire
what is negligence?
a breach of duty of care which results in damage or personal injury
donoghue v stevenson (1932)
- A bought 2 bottles of sealed, dark-coloured ginger beer
- B pours drink & sees decomposing snail coming out of bottle (this was her 2nd glass of gb, already consumed 1 glass)
- B couldnt easily claim negligence since she didnt make contract as wasnt the one who purchased, A did
what principle did the donoghue v stevenson (1932) case introduce?
neighbour principle
what is the neighbour principle in the case of negligence?
compensation can be claimed for an injured person where that person can prove :
1. duty of care was owed to him by defendant
2. duty of care was then broken by defendant
3. damage was suffered by claimant as a result
MUST MEET ALL 3 CRITERIA TO CLAIM NEIGHBOUR PRINCIPLE
what does it mean by “duty of care”?
owe a duty of care to our neighbour (anyone you can reasonably foresee that will affected / injured by your actions / lack of actions)
what extra controls have been put in place since the 80s regarding negligence & duty of care?
- if case is type which has already been decided, use case law to determine judgement (eg. faulty products, faulty surgeries)
- if case is new situation, then subject to extra checks on public policy grounds (caparo test)
outline the steps of the caparo test for negligence.
- type of harm / loss, was it reasonably foreseeable?
- sufficient relationship of proximity between claimant & defendant to claim that there should’ve been a duty of care?
- in all circumstances, is it fair & reasonable to impose duty?
WBAFC v El-Safty
- WBA tried to claim negligence against el-safty
- ES was health professional for players
- WBA couldnt claim negligence as decided that ES’s role was too far detached from the football club for them to claim negligence
what does the compensation act 2006 outline about negligence cases?
in order to claim compensation from potential negligence :
- must prevent / limit a certain activity
- discourage persons from undertaking functions in connection with a desirable activity
what does it mean when “duty is broken”?
if you fail to act as a reasonable man in the circumstances. “reasonable man” weighs up :
- likelihood of harm
- seriousness of harm
- reasonableness of taking precautions
- value to society
extra care is required of a professional
less care is expected of children
nettleship v watson
- learner driver crashed into car
- what is reasonable expectations of driver?
- was crash negligent?
- determined that duty of care WAS broken
latimer v aec
- factory flooded, so latimer mopped and placed warning signs & sawdust on floor
- was determined that latimer took reasonable steps to minimise risks of slippery floo
- worker slipped, fell & got crushed by heavy barrel while working, tried to sue for negligence
- determined that duty of care WAS NOT broken as took “reasonable” steps to reduce risk of slippage
what is res ipsa loquitor in relation to negligence?
relates to when duty of care is broken :
- no one knows what happened
- negligence is the only possible explanation
- object is under the exclusive control of defendant
- defendant must then prove it was not negligence
what are the specific categories surrounding “duty of care” damages in negligence?
- nervous shock (pure psychiatric damage)
- negligent misstatement (pure economic loss, NO relation to personal injury or property damage)
what is nervous shock in relation to negligence?
claimant must show :
- recognised psychiatric illness due to negligence
- felt self / family were in danger
- proximate in time and distance
what is negligent misstatement in relation to negligence?
when pure economic loss is faced due to negligence.
what criteria need to be met in order to claim compensation for negligent misstatement (pure economic loss)?
using caparo test :
- defendant must have known at time or reasonably foreseen what the advice would be used for
- defendant knew destination and who was going to use info
- defendant reasonably anticipated that the advice would be acted upon without claimant seeking further clarification / independent advice
claimant can then claim negligence then compensation
