The Business Environment Flashcards
What are the 2 main sources of law in the English legal system?
Case Law
Statute Law
What is Case Law?
Law developed overtime by judges. Evolved through common law and equity systems
What is Statute Law?
Laws made by Parliament through direct legislation and delegated legislation
What is one of the main features of common law?
Judicial Precedent
What is Judicial Precedent?
A system adopted by judges of following the decisions made in previous, similar cases.
Previous decisions are binding (must be followed)
What is Equity?
More flexible than common law. Created to run parallel with common law courts to apply principles of fairness and equity.
Equity will take precedence during conflict between equity and common law
What is the definition of damage remedies?
Monetary compensation awarded by a court to someone who suffered wrongful conduct of another party (common law)
What is the definition of equitable remedies?
Awarded where it is considered that a monetary compensation would not be appropriate. Can provide greater flexibility and are discretionary.
What is the system of following the decisions made in previous cases called?
Doctrine of Judicial Precedent
What are the 3 factors to be considered in deciding whether a precedent is binding or persuasive?
- the hierarchy of the courts
- ratio decidendi and obiter dicta
- the material facts of the case
What is hierarchy of the courts?
The precedents of higher courts bind lower courts but not vice versa
What is ratio decidendi and obiter dicta?
In court judgements, a distinction needs to be made between the ratio decidendi ( the reason for the decision) and obiter dicta (things said along the way)
Ratio decidendi - this is a binding precedent
Orbiter dicta - comment made by speculation
What is Facts of the Case?
When material facts of the 2 cases must be the same. If they are significantly different, the precedent will be persuasive rather than binding.
When is a precedent not binding?
- has been overruled by a higher court
- has been overruled by statute (legislation)
- was made without proper care (per incuriam) - basically when the court is held to be wrongly decided because the judge was misinformed of the law
- can be distinguish from the earlier case i.e. the material facts differ
What is delegated legislation?
Where the Government can make changes to a law without going through the process of passing the Act of Parliament
The original act would have had provisions that allow for future delegated legislation
Name 3 examples of delegated legislation
Statutory Instruments
Byelaws
Orders in Council
What is statutory instruments?
Made by government minister who have been given powers in a parent Act to authorise detailed orders, rules, or regulations. Usually drafted by legal office.
What is Byelaws?
Made by local authorities and only apply within a specific geographic area. Created when there are no general legislation that deals with local concerns
What is Order in Council?
The Crown and the Privy Council have the power to introduce delegated legislation
What is the difference between public law and private law?
Public law - different categories exist. includes criminal law, constitutional law, administrative law, social welfare law and all matter that concerns the whole country or society
Private law - enforced between individuals. Can include contract law, family law, intellectual property rights, land law , probate (wills and how property is distributed) and company law
What is the name for minor criminal matter called?
Magistrates Court
What is the name for serious criminal cases called?
Crown Court
What court are appeals heard in?
Court of Appeals (criminal division)
What is the highest court?
Supreme Court
What does Magistrate Court determine?
- determines guilt in summary offences (drunk driving)
- determines of case should continue in indictable offences (murder)
What does Crown Court determine?
- determines guilt indictable offences
- hears appeals from Magistrates on question of fact
What does High Court of Justice do?
appeals from Magistrate court
What does Court of Appeal do?
appeals from Crown Court
What does Supreme Court do?
appeals from Court of Appeal and High Court of Justice
What is Tribunal?
An alternative to using the court system to settle a dispute.
What is employment tribunal?
established to hear disputes between an employee and their employer (e.g. unfair dismissal)
What is employee tribunal composed of?
one employment judge and two expert laypeople who are drawn from panels representing both sides of the industry
What if an appeal happens during tribunal?
appeals are made to employment appeal tribunal (EAT)
