Legal studies

What is Anton Piller order

A court ordere granted Ex parte- Allowing for an inspection of a premises.

Mareva injunction

Granted ex parte usually freezing debtors assets to prevent them being taken abroad. Tagrets suspicious money.

Interlocutary injunction

Temporary equitable procedure to regulate ongoing issues.

What is a precedent

A decision of court on particular set of facts

Ratio Decidendi

Statement of law applied to legal problem raised by facts and upon what a decision is based on

Donoghue v Stevenson ( Ratio Decidendi)

Established Duty of care principle.

Four things needed to be considered when examining a precedent before it can be applied to a case:

• Applicability of precedent

• Common law and Doctorine of precedent

• Avoidance of a binding precedent

• Strength of precedent

Caparo v Dickman

Caparo Purchased shares in Fidelity- misstated profit/loss by 1.7million.Claim of negligence was brought- Held that no duty of care was owed between caparo and auditors- not aware of purpose

Airedale NHS Trust v Bland

Bland was in vegetative state FOR 3 YEARS- brain stem functioning- controlled hear beat- tehnically alive. Hospital with consent of parents wanted to lawfully discontinue treatment. Decision was granted due to ommision to act- no duty to treat as treatment was not making him better.

Solomon v Solomon

Sons wanted to become business partners, turned business into LC- wife and children took shares. Gave Mr Solomon 10000 in debentures(loan)- Solomon secured his loan to third party over floating charge over assets

Business failed- company liquidated

Solomon abused the privileges of Limited liability

Overturned the decision- owed 10,000

Limitations to Auditor Liability

Auditors do not owe a duty to unknown third parties who act upon its advice without there being a client-professional adviser relationship in place.

Advantages of Companies

Limited Liability

Easier access to interest

Companies can exist indefiently

Creation of charges- Fixed and floating

Tax planning

Disadvantages of Companies

Publicity in terms of filing of accounts

Constrained under ultra viries rule- BEYOND THE POWERS

Risk of loss of control

Dilution of earnings per share

Advantages of partnership

Ease of commencement

Lack of formalities

Privacy of trading info

Flexibility of objectives

Disadvantages of partnership

Removal of partner is difficult

Joint and several liability

Dissolution- ERNEST AND YOUNG

Raising external finance from bamks

Cannot have shareholders

Cannot have floating charges

Partnership property- Miles and Clark

Dispute about partnership property. One side argued that only share of profit was agreed. Trading stock was property but lease was only held in name of one partner

Joint and several liability

Where two or more people within a partnership are joint and severally liable for all debts incurred within the business- crreditors are required to chase all partners

What is a partnership

the relation which subsists between persons carrying on a business in common with a view to profit

Seperate legal personality

Solomon v Solomon

Bushell v Faith clause- Weighted voting rights

Clause likely found in shareholders agreement and confers enhanced voting rights on the directror who is being removed.

Unfair dismissal

Employment tribunal- subject to statutory caps- biased towards employee- within 3 months

Wrongful dismissal

Fired without notice; breach of contract- usually for high earners as it is expensive- must bring claim within 6 years.

Public Discolsure act 1988

Covers whistleblowers

Constructive dismissal

The changing of an employees working conditions with the aim of forcing resignation. Loses right to claim redundancy or UD. Must act quickly or else could appear as if employee if affirming the change in contract.

Absolute rights

these are definate and cannot be restricted under any circumstances including war

Derogable rights

May be derogated by the government( The givernment may opt out of particular rights)

Qualified rights

Those which are subject to restriction in order to take the public imterest into account.

A case on right to peaceful enjoyment of your possessions- HRA

Powell case- Quality of life due to noise pollution- interfiered with claimants article 8 rights and was justified in light of needs to wider community.

Right to liberty case: Article 5: HRA

Re JJ- 18HR curfews- terrorism act

what is Article 7- HRA

Laws should not act retrospectively

Pretty v DPP

Involving right to die.

Has terminal illness- impossible to nove or communicate- mental was normal.

Right to die was not part of right to live, she treid to claim discrimiation

Held that she was not entitled to assisted suicide by overdoes as her mental was okay.

What is Article 2

Right to life

The neighbour principle

Hedley Byrne v Heller- must take reasonable care to avoide acts that would result in forseeable harm or loss to those who may be affected and also requires a special relationship between parties for there to be duty of care.

Forseeability

Home office v Dorset Yacht company- one of the three elements of Caparo test in determining duty of care. Must be forseeable that the defendants actions could result in claimant suffering. REQUIRES PROXIMITY BETWEEN PARTIES.

Importance of Forseeability

Roe v Minister of health- phenol seeped through micor cracks in syringe containing anaesthetic- resulted in plaintiff being left paralysed- NO BREACH of duty of care as there was no foreseeability- no one knew this.

When does a special relationship exist

Where a professional person advises someone that they know, who relies on their statement, for a known purpose.

Caparos 3 stage test

Forseeability

Proximity

Fair, just and reasonable.

Morgan crucible

Became subject to takeover due to suspected insider information- explored rights and liabilities of insider information use.- Court allowed Morgan Crucible to bring claims against those involved

Misrepresentation pre contract

If there are statements made prior in negotiations which do not fall into the contract- this may be a misrepresentation

Measure of damages

Victoria laundry and Newton- bought a boiler for business use- delayed- loss in normal profit and special government contract- could claim for profits but not contract as was not forseeable by Newton.

Loss flowing naturally from bridge

Hafley and Baxendale- Mill shaft broke- ordered- delayed- loss in profits- could NOT claim as baxendale was not told mill would be shut. Loss needs to be communicated at the time of contract.

Anglia television and Reed

Hired Reed for TV production- he pulled out. Allowed for claim of pre-contractual expenses because the loss was seen as forseeable.BUT not HOW MUCH THEY COULD HAVE EARNED as that is speculative.

James McNorton Press

No duty of care was owed as there was no relationship between advisor and third parties.

AlSaudi Banque v Pixley

Alsaudi relied on fianancial statements prepared by pixley which failed to disclose information about a company of interest. The case outlines the importance of close and proximate relationships when claiming for negligence especially concerning auditors.

Connoly case

Published material itended to stir up racial hatred. Pleaded guilty- sendanced to 31 months. Outcome: Although freedom of speech is a protected right it does not strech to racial hate speech.

Bellinger and Bellinger

Mrs bellinger was transgender, married mr Bellinger- Marriage was void at the time as law stated ‘ male and female could only get married but both were male. Case highlighted limitations of lega framework- privotal moment for tranny rights.

What is a key difference between wrongful and unfair dismissal?

Wrongful is where the employer has breached an implied or express term of contract while unfair is a claim under Employment rights act.

Addis v. Gramophone Co Ltd on Wrongful Dismissal.

Was fired without proper notice in a humiliating manner. Claimed for WD but also loss of rep and mental distress. In wrongful dismissal cases, damages do not extend to emotional or reputational harm. THE case established strict interpretations of contract damages to purely economic loss.

The Polkey rule: Unfair Dismissal.

Failing to follow a fair procedure makes the dismissal procedullary unfair even if the employee was going to be dismissed anyway.

Employers must give: proper notice, conduct fair investigations, allow employee representation and follow internal procedures.