Corporate & Business Law

Essential elements of the Legal System

Tim Price MA Juris (Oxford)

How to Pass, How to Fail

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How to Pass, How to Fail

Attendence and Result Correlation BSc FIM Autumn 2010
100

Aggregate Mark (%)

80

60
40 20 0

4 6 Attendence (No. of Lectures)

10
3

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Assessment ACCA Exam

Section A: Essential elements of the legal system

Designed to give you knowledge and application of:

A1. Court structure A2. Sources of law A3. Human rights

A1: Court structure

Learning Outcomes
Define law & distinguish types of law. Explain the structure & operation of the courts & tribunals

systems.

Define law and distinguish types of law

Law means the rules established by a governing authority to institute and maintain orderly co-existence.

Law is a formal mechanism of social control which is binding upon society.

Define law and distinguish types of law

Types of law
Civil Law
Criminal Law

Arbitration of disputes

Social sanctions Prosecution and defence Punishment and deterrence Proof beyond reasonable doubt Decided by lay magistrate or jury
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Equality of parties
Protection and compensation Balance of probabilities Decided by a judge

Structure of civil courts & the tribunal system

Supreme Court Final court of appeal in civil and criminal law European Court of Justice (ECJ) (Referral of questions of EU Law from any UK court)

Court of Appeal (Civil division)

High Court More substantial civil claims

Chancery Division Family Division Queens Bench Division County Court Claims of small value Small claims track Fast track Multi-track Tribunals (Some have their own appeal tribunals before going to Court of Appeal)
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Magistrates Courts significant, although limited, civil jurisdiction

Structure of criminal courts

Supreme Court Final court of appeal in civil and criminal law European Court of Justice (ECJ) (Referral of questions of EU Law from any UK court)

Court of Criminal Appeal

High Court Divisional Court

Crown Court Serious offences trial by jury

Magistrates Courts Minor offences, committals, Youth Court

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Tribunals
Administrative tribunals created by Act of Parliament (eg Employment Tribunals Act 1996) Domestic tribunals established by professional bodies (Bar Council, BMA) Usually 3 members Chair (legal) + experts Rights of audience - unlimited

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Tribunals
First tier Tribunal
General Regulatory Chamber Social Entitlement Chamber Health, Education and Social Care Chamber War Pensions and Armed Forces Compensation Chamber Tax Chamber The Immigration and Asylum Chamber

Upper Tribunal The Administrative Appeals Chamber The Tax and Chancery Chamber The Lands Chamber The Immigration and Asylum Chamber
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Tribunals
Other Tribunals
Adjudicator to HM Land Registry Employment Employment Appeal Gender Recognition Panel MP Expenses Proscribed Organisations Appeal Commission Reserve Forces Appeal Residential Property Tribunal Service Special Immigration Appeals Commission
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Tribunals
Example: Employment Tribunal: Chair + employee & employer reps Redundancy, unfair dismissal Discrimination/equality issue Maternity/paternity rights Effects of Employment Act 2002 Costs now available Compulsory conciliation New forms No hearing option Pre-hearing reviews
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Tribunals
Inferior to normal courts subject to judicial review in High Court Natural justice Ultra vires Refusal to hear matter for wrong reasons Improper application of law

Appeals to specialist Appeals Tribunals or the Upper Tribunal then to Court of Appeal

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Tribunals
Advantages of Tribunals
Saves time quicker than courts Cheap lower fees and costs Informal minimal rules of evidence; flexible representation Flexibility some latitude over use of precedent Expert knowledge allows technical matters to be determined by those competent to do so Accessibility
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Disadvantages of Tribunals
No uniformity in approach Issues of public importance not discussed broadly Risk of poor representation

Alternative Dispute Resolution

Alternatives to court litigation courts like ADR!
Arbitration: usually created by contract, sometimes by codes of practice, enforced by Arbitration Act 1996 Private hearings and judgments Industry expertise but may still be time consuming and expensive

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Alternative Dispute Resolution

Alternatives to court litigation courts like ADR!
Mediation and conciliation Conciliator seeks to bring the parties to a mutual agreement Mediation-arbitration Parties agree to be bound by decision of mediator acting as arbitrator if mediation fails Contractual ADR Parties agree in original contract to use ADR before arbitration process

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Recap: A1
Define law & distinguish types of law.
Explain the structure & operation of the courts & tribunals

systems.

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A2: Sources of law

Learning Outcomes
What is case law & precedent within the context of the

hierarchy of the courts

Legislation & evaluate delegated legislation Illustrate rules & presumptions used by the courts in

interpreting statutes.

Case law & precedent

In law, a precedent is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts Types of precedent Binding precedent

Decisions of higher courts which are binding on lower courts

Persuasive precedent

Decisions of lower courts which are persuasive but not binding on higher courts
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Case law & precedent

Ratio Decidendi: Principles of law applied by a court upon

which a judicial decision is based & a case decided which creates a precedent
Obiter Dictum: Words said by a judge in relation to a legal

point but not constituting part of the decision. Not binding but may be persuasive
Material facts: For a precedent to be binding on a judge in

a later case, the material facts of the cases must be similar.

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Precedent
Advantages of Precedent
Consistency predictable outcomes Certainty known rules Time & Cost savings no duplication of hearings Flexibility reverse, overrule, distinguish

Disadvantages
Uncertainty will it be applied? Voluminous materials Complexity of judgments Rigidity impact of outdated cases Unconstitutionality judges shouldnt make law

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Compliance with precedent

Reversing: A court higher up in the hierarchy overturns a legal ruling in the current case on appeal Overruling: A court higher up in the hierarchy sets aside a legal ruling established in an earlier case (may also reverse in the current case Distinguishing: Occurs when a later court regards the facts of the case before it as materially different from the facts of a cited precedent and reaches a different conclusion

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Nature of precedent hierarchy of courts

1.Supreme Court Highest in English court structure Decisions bind all courts below it but not itself Decisions bind all courts except Supreme Court

2. Court of Appeal

3. High Court

Bound by decisions of the Supreme Court & its own decisions. Decisions bind inferior courts but not other High Court judges (dissent very rare)
Bound by the decisions of Supreme Court and CA.

4. Other Courts

County Courts, Crown Courts and Magistrates Courts cannot create precedent & their decisions can never amount to more than persuasive authority.

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Legislation and delegated legislation

Legislation is law which has been enacted by Parliament In the UK, there are two ways to pass legislation:
Acts of Parliament Delegated legislation

create new law

Acts of Parliament may

codify existing law consolidate existing statutes authorise taxation every year

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Legislation and delegated legislation

Delegated legislation (DL):
Law made by an executive authority
Under powers given by primary legislation (Acts) Implements and administers the requirements of

various Acts
Remember, unlike primary legislation, delegated legislation may be questioned by the courts

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Delegated legislation
Statutory instruments: rules, regulations, orders

Orders in council: prepared by government & approved by the privy council

Types of delegated legislation

Bye-laws: prepared by local bodies

Rules: court rule committees have power to make rules Regulations: professional body can turn governing regulations into laws
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Delegated Legislation
Advantages of DL
DL saves time of parliament allows it to deal with broad policy not masses of detail. Expert knowledge in highly technical areas Flexibility - ministers can respond to particular problem as needed Speed - rapid action in case of emergency Efficient adaptation to any changes in regulations.
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Disadvantages of DL
Unconstitutional - key issues & regulations are prepared without sanction of elected persons Lack of scrutiny Too detailed for proper analysis of all implications Laws are published in large volumes - lack of knowledge of laws & publicity Loss of accountability & control great power given to unelected individuals

Interpretation of statutes
Judges assign meanings to ambiguous words in the statute. This process is called interpretation of statutes
Aids to Interpretation

Other Legislation

Precedents

Oxford Heading English Dictionary

Human Rights Acts1998

Codes of Practice

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Interpretation of statutes

Rules used by the courts to interpret statutes

Literal Rule

Golden Rule

Mischief Rule

Eiusdem Generis Rule

Expressio Contextual Rule unius est exclusio alterius rule

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Presumptions of statute interpretation

No alteration to common law except as stated in the Act No fault no penalty Guilty intention must be proven for criminal liability

Acts only apply to the UK

Statute does not bind the Crown except as stated in the Act No violation of international law

Acts do not interfere with rights to private property

Statutes do not have retrospective effect

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Recap: A2
Case law & precedent within the context of the

hierarchy of the courts. Legislation & evaluate delegated legislation. Rules & presumptions used by the courts in interpreting statutes.

A3: Human rights

Learning Outcomes

Concept of human rights as expressed in the Human

Rights Act, 1998. [2] The impact of human rights law on statutory interpretation. [2] The impact of human rights law on common law. [2]

The concept of human rights

Human Rights are:
Universal & inherent Equal for all regardless of cultural or economic

differences, nationality and ethnicity

Inbuilt rights of every individual & include the basic &

fundamental right to life

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The concept of human rights

Prohibition on discrimination Right to marry & found a family Freedom of assembly & association Freedom of expression Freedom of thought conscience & religion Right to respect private & family life Human Rights in the UK

Right to life

Prohibition on torture Prohibition on slavery/forced labour Right to liberty & security Right to a fair trial No punishment without law

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Application of Human Rights Act

Impact of human rights law on statutory interpretation: Judges must interpret legislation as far as possible in a way that is compatible with the Convention Rights. Unlawful for a public body not to comply with the Convention, unless an Act of Parliament says they have no choice
UK judges must follow decisions of Strasbourg court, and

interpret legislation to be compatible with the Convention

If an Act of Parliament is incompatible with Convention, judges

may not override it, but may issue declaration of incompatibility

Declaration does not affect the validity of the Act of Parliament:

thus HRA seeks to maintain Parliamentary sovereignty

The HRA may be repealed by majority vote in the Parliament.
Party may appeal to Strasbourg from Supreme Court on HRA
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Recap: A3
Concept of human rights as expressed in the Human

Rights Act, 1998. The impact of human rights law on statutory interpretation. The impact of human rights law on common law.

Business Law
Essential elements of the Legal System
Tim Price MA (Oxford)