Business Law: Key concepts

Stare decisis

Judicial precedent:

Law developed through court decisions.

Legislative Branch

Westminster Parliament (representing the entire UK)

- House of Lords

- House of Commons

- The Monarch

Executive Branch

Government

- Prime Minister

- Cabinet

Judiciary Branch

Appointed judges

- Supreme court

Rule of Law

Principle that the law applies to everyone - even those who govern.

Ranking of Courts

1. Supreme Court

2. Court of appeal

3. High courts

4. Crown Court, Magistrates' Court, County Court

Supreme Court

Appeals on civil & criminal law.

Court of Appeals

- Criminal division deals with appeals from Crown Court

- Civil division deals with appeals from High & County Courts

High Court

- Administrative Court deals with judicial and appeals (occasionally criminal cases)

- Family Divisional Court deals with family & child hearings and appeals

- Chancery Divisional Courts deals with land & tax hearings and appeals

Crown Court

- Criminal trials on indictment

- Appeals in criminal cases from Magistrates' Courts

Magistrates Court

- Criminal trials

- Family cases

- Non-payment of bills

County Court

Hearings in civil cases according to value of claim and family matters.

Legislation / Statute / Act

A document containing laws made by Parliament.

Bicameral Legislature

The House of Commons and the House of Lords must agree on nearly all cases for legislation to be made.

House of Commons

Elected members of Parliament.

House of Lords

Non-elected individuals.

- Life peers

- Hereditary peers

- Church of England Bishops

- Retired Supreme Court justices

Stages of passing Legislation

1. Consultation paper is drafted

2. A bill is formed from the paper

3. The bill is introduced to the House of Commons / Lords

4. The bill undergoes debate in both Houses

5. If the bill is passed in both chambers it must receive the Royal Assent

Royal Assent

Final approval by the crown to an act of parliament.

Bill of Rights [1689]

Limited the powers of the monarch and enshrined the principle of parliamentary sovereignty in law.

Parent Act

An act that delegates law-making power to a subordinate authority.

By-Laws

Statutes passed by local authorities.

Statutory Instruments

The passing of a broadly drafted statute (parent/enabling Act) - delegating law-making power upon a government department or minister.

Orders in Council

The Privy Council's functions are concerned with the admin and supervision of the Commonwealth & British Overseas Territories.

Legislative Reform Orders

Provides a simple & fast way for the executive to amend/repeal certain legislation.

Judicial Review

Process whereby certain courts can review and annul the acts or decisions of certain bodies

Influencers of Law Reform

- Academics

- Parliament

- Judges

- Law reform agencies

- Pressure groups

- Europe

- Royal commissions

- Media

Sources of Law

- Parliament (legislation & delegated legislation)

- EU

- The Courts (Common Law & equity)

Drawbacks of Common Law

- A court is bound to follow a previous decision even if the judge disagrees with it

- Common Law was started by means of writ

- Common Laws were typically only remedied by damages

Rules of Equity

Moral principles on which equitable decisions are based, still used today.

- Fill in the gaps of Common Law's defects

'He who comes to equity must come with clean hands.'

Judicature Act [1873]

Merged common law and equity court systems.

Equity prevails over Common Law.

Injunction

Equitable remedy:

A court order requiring a person / entity to either do something or stop doing something.

Specific Performance

Equitable remedy:

A court order compelling a party to perform their part of an agreement that they had promised to fulfil.

Recisission

Equitable remedy:

An order restoring contractual parties to their pre-contractual position - releasing them from contractual obligations.

Doctrine of Judicial Precedent

Inferior courts are bound to apply the legal principles set down by superior courts.

Statute Law

Law made by parliament.

Common Law

A legal system based on custom and court rulings.

Precedent of Superior Courts

Inferior courts are bound by the precedents of superior courts.

Precedents of the same Courts

Precedents made in the same courts are generally binding to other courts at that level.

Precedents of Inferior Courts

Superior courts are not bound by precedents of inferior courts.

- They may be influenced by them

Ratio decidendi

The principle of law which is the basis of a court's decision.

Obiter dictum

A remark made by a judge in passing, which is not binding but may be persuasive.

Advantages of Precedent

- Efficient

- Predictable

- Consistent across nation

- Satisfies requirements of justice

- Longevity

Disadvantages of Precedent

- Judges can usurp role of Parliament

- Judges may not take accountability

- Doctrine looks to the past

- Law cannot develop unless a specific case has occurred

Tribunal & Alternative Dispute Resolutions (ADRs)

Methods to settle conflicts outside formal courts or tribunals.

Arbitration

Settling a dispute by agreeing to accept the decision of an impartial outsider.

Conciliation

Conciliator assists parties to reach a resolution & make suggestions to resolve disputes - not legally binding.

Mediation

Mediator assists parties to reach their own resolution to a dispute.

Ombudsmen

Services offered for supervision of organisations.

- Can investigate and help resolve problems for customers.

Criminal Law

To preserve social order by punishing wrongdoers & deterring others from committing crimes.

Civil Law

To compensate a person who has suffered loss or injury due to the acts/omissions of others.

Burden of Proof

The obligation to present evidence to support one's claim.

Beyond Reasonable Doubt

Criminal Law:

The prosecution must prove that the accused party is (almost) certainly guilty.

Balance of Probabilities

Civil Law:

The claimant must prove that their case is more probable than the defendant's.

Lay Personel

An ordinary citizen without legal professional training who serves in various spaces.

Jury

Determine the facts of a case & deliver a verdict (guilty / not guilty).

- Criminal trials in Crown Court

Magistrates (Justices of the Peace)

Determine the facts of a case & deliver a verdict (guilty / not guilty).

- Criminal & Civil proceedings

- Family Court

Judges

Supervises the conduct of the trial/case and interpret & apply statute & common law - then passes sentences.

Civil Judge duty

Questions of fact & law reach a verdict and award a remedy.

Criminal Judge duty

Sum up the evidence to the jury & direct them as to the law.

Circuit Judges

- Inferior judges

- Full-time

- County / Crown Court

Recorders

- Inferior judges

- Part-time

- County / Crown Court

District Judges

- Inferior judges

- County / Magistrates' Court

Justices of the Supreme Court

- Superior judges

- Supreme Court

Lords Justice of Appeal

- Superior judges

- Court of Appeal

High Court Judges (Puisne Judges)

- Superior judges

- High Court

Barristers

Act as a courtroom advocate & provide expert legal advice.

Solicitors

Chiefly advise, draft documents, & prepare clients/cases for court.

Indictable Offence

- Serious crime

- Crown Court

Triable Offences

- Ambiguous level of severity

- Magistrates' / Crown Court

Summary Offences

- Minor crime

- Magistrates' Court

Convention

Non-legal rule or understanding of political behaviour that is generally accepted as binding by those whom it applies.

- Constitutional morality

Writ

A document used by a group to commence a legal action.

Exceptions to Performance

- If the party has not agreed to contract

- There is an exception of partial performance

Agreement

What has been created by agreement may be extinguished by agreement:

- An agreement to discharge the contract provides its own consideration

- A provision in the contract

Frustration

A supervening Impossibility unforeseen by the parties, relieves both parties of contractual obligations.

Breach of Condition (major term)

Provides the injured party with the option of repudiating the contract & claiming damages.

Breach of Warranty (minor term)

Provides the injured party with the right to claim damages only.

No Breach of Contract

Repudiation of a contract must be prompted upon breach or the right is lost.

Liquidated Damages

An agreed remedy in the contract by the party.

Exceptions to Liquidated Damages

- Unenforceable if 'in terroram'

- Penalty clauses

- Unfair limitation clause

Unliquidated Damages

Remedies with no prior agreement about damages.

- Quantum decided by the judge

- Aims to put the injured party into their original position

- Typically not available for injured feelings

Nominal Damages

Where a claimant has suffered a breach of contract but no loss has occurred.

Mitigation

A claimant is obliged to take reasonable steps to minimise their loss.

Equitable Remedies

The Courts will only exercise its discretion to award an equitable remedy in accordance with specific guidelines.

Equitable Remedies Guidelines

- Damages alone are not an adequate remedy

- Delay defeats equity - no time limits defined

- Applicant must have acted equitably