English Legal Systems - Essay Example

?English Legal Systems (a) The word “source” has various meanings when applied to law. On the one hand one may treat the word as referring to the historical or ultimate origins of law and trace the development of the common law, equity, legislation, delegated legislation, custom, the law merchant, canon law and legal treatises. On the other hand one may treat the word “source” as referring to the methods by which laws are made or brought into existence, and consider the current process of legislation, delegated legislation, and judicial precedent and to a limited extent custom. A few of the abovementioned components are examined briefly below. Legislation is enacted by Parliament which contains two chambers – the House of Commons and the House of Lords. An Act of Parliament begins life as a bill, which is a proposed draft of an Act and passes through the various stages of the enactment process prior to becoming binding law. Delegated legislation as the name suggests is brought about in situations where the statute alone cannot provide for all the technicalities required. So it provides the broad framework whilst the details are filled in by the relevant minister by way of delegated legislation. These regulations when made in the approved manner are just as much law as the parent statute itself. (b) The English Legal System’s civil court structure consists of the European court of Justice, the House of Lords, the Court of Appeal, the Divisional Courts, the High Court, the County Court and the Magistrates Court. The system of Judicial Precedent in a nutshell would involve a court being bound by similar decisions made by courts of equal or higher status and is not merely a mechanical process of matching similarities and differences but involves the art of interpreting the principle derived from an earlier case. Decisions of the House of Lords bind all lower courts. After a protracted debate on whether or not House of Lord decisions binds future House of Lord’s cases the Practice Statement (Judicial Precedent) 1966 1 WLR 1234 established that though the doctrine of being bound had many commendable points “a too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law”. However, the Lords depart from earlier decision only in rare circumstances. One such case is the case of British Railways Board Vs Herrington1 where the lords faced a number of earlier decisions wherein they had held that there was only a limited duty of care in negligence owed to children who trespassed onto property. Since perceptions of public policy have changed over the years their lordships felt able to ignore the earlier decisions and impose on British Railways a duty of care in keeping railway fences repaired. Strictly speaking the Court of Appeal is bound to follow all decisions of the House of Lords. There were some attempts by Lord Denning however to change this strict rule. He launched a two pronged attack by saying that (a) that if a House of Lords decision had been made per incuriam it could not be followed and (b) that if the reasoning for a rule had lapsed or seek to be of significance it need not be followed. These attempts were however not viewed favourably by the House of Lords and therefore the Court of Appeal is now bound to follow all House of Lords decisions. It may however choose between its own conflicting decisions. All courts that are lower in status than the Court of Appeal are bound by the doctrine of Judicial Precedent in the normal way. Contract (a) An offer is a proposal by one person to another of certain terms of performance, which proposal is made with the intention that it be accepted by such other person. The promise of performance however is conditional upon a return promise or an act or forbearance being received in exchange for it for it to mature into a contract. An offer should be definite. Therefore a promise to pay a specified sum if a horse purchased were “lucky” to the purchaser2, an undertaking to retire from business “ so far as the law allows”3 or an offer to let premises for the duration of the war4 are all too vague to create a binding obligation in respect of the matters they cover. It should also be noted that an offer to enter into a contract upon terms to be agreed upon at a later point of time would be invalid and be treated as an “agreement to agree”. Acceptance is defined by Anson5 as follows. “Acceptance is to an offer what a lighted match is to a train of gun powder. It produces something which cannot be recalled or undone. But the powder may have lain till it has become damp or the man who laid the train may remove it before the match is applied. So an offer may lapse for want of acceptance or be revoked before acceptance. Acceptance converts the offer into a promise and it is then too late to revoke it.” Acceptance may be by words or conduct and should (a) Be accepted by the offeror: If it is accepted by a third party there won’t be a meeting of the minds and therefore a valid contract will not have been entered into.6 (b) Communicated: As Thesiger, L.J observed in Household Fire Insurance Co vs. Grant7, an acceptance which only remains ‘in the breast of the acceptor” without being actually communicated in fact or by legal implication is no binding acceptance. (c) In the manner indicated: If the offeror specifies a particular method of acceptance, then the offeree should ensure acceptance is made in that manner. Where no exclusive method of acceptance is indicated however, the offeree is entitled to accept by an equally expeditious or more expeditious method than that indicated. If he chooses a method of acceptance which is less expeditious, he does so at his own risk.8 Consideration was defined in the case of Currie vs. Misa9 as “ a valuable consideration in the eye of the law may consist either in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility given suffered or undertaken by the other”. Consideration should be distinguished from motive (the latter is a mental state while the former is something of economic value) and must be executed or executor but must not be past. Past consideration as opposed to executed consideration is a benefit received anterior to the making of the contract. In addition to the above elements, the view is commonly held that the parties to the contract should intend to create a legal relationship if the contract is to be enforceable. The much discussed case of Balfour vs. Balfour sets it out clearly. Lord Atkin in the said case observed that “it is necessary to remember that there are agreements between parties which do not result in contracts within the meaning of that term in our law. The ordinary example is where two parties agree to take a walk together, or where there is an offer and acceptance of hospitality. Nobody would suggest tin ordinary circumstances that those agreements result in what we know as a contract…”10 Methods in which a contract ends A contract could be brought to an end either by performance, agreement of the parties, operation of law or breach of contract. Performance of a contractual obligation would mean the discharge of duties assumed under the contract in accordance with its terms. The law strictly enforces the duty to perform and permits no degree of divergence between the promise and the performance. This is the most uncontroversial method of bringing a contract to an end. A contract may also be brought to an end by the agreement of both parties. In as much as mutual agreement forms the contract, so also mutual agreement may discharge it. The termination of a contract by agreement may take the form of a release/waiver by one of the parties, compromise or novation. A release is a situation where there is a discharge or acquittance of an obligation made by the creditor either gratuitously or for value whilst a compromise would involve each party receding from his previous position and conceding something, either diminishing his claim, or increasing his liability11. Novation on the other hand, in its wider sense means the creation of a fresh contract by the extinction of a pre-existing one in whose room it stands. A contract comes to an end by the operation of law in the following ways: (a) setting off of rights and duties owed under the contract (b) destruction of the subject matter of the contract or impossibility (c) the prescription period ending (d) Insolvency of one of the parties (e) death of one of the parties where assignment has not been provided for (f) judgment of the courts and (g) winding up. There are two ways in which a party may commit a breach of contract. He may either fail to perform in whole or in part the obligation assumed y him in terms of the contract or he may repudiate the contract. Repudiation may occur either expressly, as where a party states in so many words that he will not discharge the obligation he has undertaken, or impliedly, as where by his own act a [arty disables himself from performance or makes it impossible for the other party to render performance. Negligence The traditional tri-partite structure that a claimant must establish in a claim for negligence has its roots in the 1934 case if Lochgelly Iron and Coal CO vs. McMullan12 where Lord Wright said “ in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission of commission; it properly connoted the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. The points therefore are that: a) A duty of care was owed: The duty could be owed by a specific person (like a doctor) or an ill defined class of persons (a car driver and other road users). Lord Atkin enunciated a neighbor principle which was the initial test used to establish a duty of care. The test currently used by the courts requires the claimant to show the following to establish a duty of care: (i) it was reasonably forseeable that a person in the claimant’s position would be injured 9ii) there was sufficient proximity between the parties and (c) it is fair, just and reasonable to impose liability. The best exposition of these points could be found in Caparo Industires Vs. Dickman13 b) The said duty of care should have been broken by the person who owed it – this would mean that the defendant’s conduct fell below the legally required standard. The basic rule is that the defendant must conform to the standard of care expected of a reasonable person. As said in the case of Blythe Vs Birmingham Waterworks 14“negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do”. The test of a reasonable man however should be considered carefully in the situation of a child, a learner or a professional. For example in the case of Mullins vs Richard which involved two 15 year olds, the test was said to be that of a prudent 15 year old and not a prudent adult. In the case of Nettleship vs Weston however, which involved a leaner driver, the court held that it was irrelevant that the learner driver was doing as well as she could, given her lack of experience, if a reasonable driver would have done better. Similarly in Wisher Vs Essex it was said that a doctor who holds himself out as a specialist will be held to the standards of a reasonably competent doctor even if he is a novice performing procedure for the first c) as a result of the breach, the claimant should have suffered damages of a kind that the law deems worthy of compensation. Defenses against negligence Contributory negligence, consent and illegality can be used as defences in a claim for negligence. Contributory negligence would involve the defendant pleading that the claimant’s own negligence contributed to the injury. Until 1945 a successful plea of contributory negligence was a complete defence. The Law Reform (Contributory) Negligence Act of 1945 however now provides for an apportionment of liability between the claimant and the defendant. Whilst it would seem obvious that someone who consents to a tort should not then turn round and sue, in practice it is complex and controversial. In relation to negligence the application of this defence is carefully controlled as the claimant cannot know in advance what is going to happen with certainty. This defence of volunti non fit unjuria operates in two ways which are best illustrated by looking at sections 2(1) and 2(5) of the Occupiers Liability Act of 1957, the first deals with a situation of an exclusion notice being put whilst the second deals with a situation where there is an agreement to face physical risks. The defence of illegality operates to bar a claimant from claiming damages in a situation where the claimant is involved in an illegal activity. It is noteworthy however that illegality seldom operates as a complete bar to liability. The rare instances where the courts have denied liability on the basis of the claimants own wrongdoing are situations in which it is shocking to the conscience that the claimant should be allowed compensation in the circumstances and where on the particular facts there is no relevant basis on which the appropriate standard of care could be determined ( e.g. Revil vs. Newberry ( 1997) Q B 567.) Intellectual Property Trademarks are perhaps one of the most commonly protected intellectual property rights with the law relating to it being found in the Trademarks Act of 1994 (“TMA”). The Act grants protection to those who chose to register their trademarks and defines four types of infringements. The first of such infringements relates to a situation where a trademark which is identical to the one in suit is used for identical goods and services to those within the specification and is defined in section 10(1) of the TMA. The second situation of an infringement is one where there is only similarity rather than identity between goods or services, and/or similarity between the defendant’s sign and the plaintiff’s mark. To succeed in this action however, the plaintiff must prove that there exists a likelihood of confusion on the part of the public, which includes likelihood of association with the trademark”. Moreover, where a trademark has a “reputation” in the UK, it is an infringement to use an identical or similar sign for dissimilar goods or services, where the “ use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute” of the mark. Fourthly, it is an infringement to use a trademark to identify goods or services as those of the proprietor or a licensee, “otherwise than in accordance with honest practices in industrial and commercial matter’, when “the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute” of the mark. In each of the above situations the proprietor of a registered trademark may bring an action in court against the offender with all such relief by way of damages, injunctions, accounts or otherwise being available to him as if it were a normal property right.15 If the court finds the offender guilty he may be ordered to cause the offending sign to be erased, removed or obliterated from any infringing goods, material or articles in his possession, custody or control, or if it is not reasonably practicable for the offending sign to be erased, removed or obliterated, to secure the destruction of the infringing goods, material or articles in question. A proprietor of a trademark may also apply to court to have any infringing material to be delivered to him in terms of section 15 of the TMA Act. These then are some of the methods by which a trademark is protected in England. Advertising The Advertising Standards Authority is the foremost body tasked with the regulation of the advertising industry. In its own words it is” the UK's independent regulator of advertising across all media, including marketing on websites.”16 The ASA strives to ensure that advertisements are legal, decent, honest and truthful by applying various advertising codes. These advertising codes are not written by the ASA itself but by the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP). The former has written the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) which relates to the non broadcast sector ( i.e. cinema, press, posters and online) whilst the latter has written the code on Broadcast Advertising (BCAP Codes). It should however be noted that whilst the ASA regulates most advertisements it does not regulate all. Areas it does regulate include, magazine and newspaper advertisements, radio and tv commercials (not programmes or programme sponsorship) , television Shopping Channels, posters on legitimate poster sites (not fly posters), leaflets and brochures  etc. From the 01st of March 2011 the ASA has been given a wider mandate in dealing with online advertising. Under the previous code the ASA was only able to regulate paid for online advertising and mass communications whilst under the revised code the ASA is able to regulate non paid for material as well As well as proactively monitoring ads, the ASA accepts complaints from the public and industry about ads that seem to have breached the Codes. One complaint is enough to trigger an investigation, which could lead to the withdrawal of an ad campaign. All complaints are considered fully and those that bring to light possible Code breaches are sent thorough investigation. Decisions on investigated ads are made by the independent ASA Council, with the investigation process being transparent and all adjudications being published weekly on the ASA website and attracting significant media attention. Areas that are not regulated by the ASA will be regulated by authorities such as the Trading Standards Institute, Information Commissioners Office, Equality and Press Commission Moreover, the Office of Fair Trading deals with certain breaches in accepted standards of advertising that are not covered by the ASA. The most recent addition to its mandate being regulations governing credit advertising. The Office of Fair Trading also works with the CAP in Additionally, complaints about product-related claims in non-broadcast ads for mortgages, general insurance, investments, pensions, cash savings and bank accounts are dealt with by the Financial Services Authority. 17 Read More