Introduction to Business Law

What is a civil law (Roman) system?

Where the legal rules and principles are derived from written codes

It’s clear and there is no ambiguity

What is a common law (Anglo-American) system?

Where the legal rules and principles are derived from court, it is not written down

More flexible and open to interpretation

Which legal system does Scotland follow?

A hybrid system - mixture of civil and common

What makes up a tripartite legal system?

Executive - proposes new laws

government/Scottish parliament/Westminister

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Legislature - law making body (passes the laws)

Scottish parliament/house of commons and lords

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Judiciary - interprets the law

court system

What is the nature of the law?

set a minimum standard of behaviour for all

What is the aim of criminal law?

to punish the offender

What is the aim of civil law?

compensation - rectification of a wrong

What are the sources of law in order of highest to lowest power?

Legislation (civil law)

Case Law - precedent (common law)

Institutional writings

Custom

Equity

What is the hierarchy for legislation starting at highest?

UK (Westminister) legislation

Scottish legislation

Delegated legislation

What is judicial precendent?

Where a judge must follow the judgement and decisions of a higher court in previous cases

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Court decision follow existing legal principles, extend those principles or lay down/amend rules

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Judges must provide ratio decidendi - reason for their decision

What are institutional writers?

e.g. Stair

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codifications/statements of law

if not contradicted by legislation or precedent taken by court as ascertaining the law

their authority depends on their recognition by the courts

What are customs?

Course of conduct over time gaining the weight of law

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Must-

\-not contradict general law

\-definite, certain and regularly practised

\-fair and reasonable

\-accepted and followed for long period

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If it falls to be enforced it will lose it’s authority

What is equity?

nobile officium - both the inner court of session and the high court of justiciary have the extraordinary equitable jurisdiction to fill in the gaps in the law or provide a remedy if one is not otherwise available

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always a bit controversial so not used often

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Khaliq v HM Advocate

Glue sniffing

How is the Scottish Civil Court structured?

The supreme court will never hear a case for the first time

Can potentially raise an issue for the first time in the outer house court of sessions

What is a small claims procedure?

action for payment less than £5000

simple

procedure - no record of evidence, appeal on point of law to Sheriff Appeal court

can represent yourself

What is a summary cause procedure?

action for payment between £3000 and £5000

more complicated e.g. personal injury

procedure - no record of evidence, appeal to sheriff appeal court and then to inner house court of session by permission of sheriff appeal court

What is ordinary cause procedure?

action for over £5000

full procedure - evidence recorded

divorce, bankruptcy, adoption, succession

appeal as summary cause

What is the court of session?

Highest civil court in Scotland

Compromises of inner and outer house

Deals with complex cases

\-contract

\-delict

\-commercial law

\-judicial review

\-patent infringement

What is the outer house court of session?

court of first instance

presided over by a lord ordinary (a judge of a court session other than one sitting in the inner house)

sits alone

in limited range of cases (e.g. industrial accidents) jury of 12 sit

What is the inner court of session?

has two division of equal stature

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first division - lord president and 3 senior lords of session

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second division - lord justice-clerk and 3 lords of session

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primarily an appeal court on points of law

can be a first instance in special cases where facts agreed and only law is in dispute

What is the supreme court?

court of appeal

12 justices (formerly law lords)

normally sits 5

decision by majority

appeals all civil law cases in the UK and most criminal (excluding Scotland)

appeals are rare

How is the Scottish Criminal Court structured?

What is solemn procedure?

There is a jury

Trail on indictment - an accusation of crime running in the name of Lord Advocate

Tried by a jury, in serious cases in high court, or in Sheriff court

A document setting out the charge against the accused in more serious crimes

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High court - judge + jury of 15

Sheriff court - sheriff or sheriff principle + jury of 15

What is summary procedure?

No jury

Trail on complaint - a document instituting summary (minor) criminal proceedings in a sheriff or JP court setting out the offence charged

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Sheriff court - sheriff or sheriff principle

Justice of the Peace court - justice of the peace

What is public prosecution?

the police’s job to investigate crimes and gather evidence

crown office and procurator fiscal service decide if it goes to court