Legal Institutions and Methods - Essay Example

? Legal s and Methods QUESTION Question part a) i) The term prescribed as used in the Act refers to an order made by the Secretary of State by statutory instrument ii) The Act defines BBC as the British Broadcasting Corporation iii) The Act defines broadcasting as communication by wireless telegraphy in accordance to the definition of Section 116 of the wireless telegraphy Act of 2006 or otherwise by satellite communication. Question 1 (part b) a) Conviction on indictment is a conviction after an indictment aimed not at finding the accused guilty but that the crime was probably committed and the same committed by the accused. An indictable offense under the Act includes the disclosure of information by a relevant person without lawful authority to disclose the information. Another indictable offense in another area of law is murder. b) In summary conviction of an offense committed under section 3 of the Act an individual is subject to imprisonment for a term of not more than 12 months or a fine not in excess of the maximum under the statute or both the imprisonment and the fine. Question 1 (part c) There are two different procedures involved in the annulment of statutory instruments in parliament. These two procedures are the negative procedure and the affirmative procedure. Negative procedure Statutory instruments may be annulled if either House of parliament passes a motion to annul the statutory instrument. This time for annulment is usually 40 days from the day the motion to annul it was laid although this time which parliament is dissolved or when both houses are adjourned for more than four days. A motion to annul a statutory instrument is referred to as a prayer. Any member in the House of Commons may put down a motion to annul the statutory instrument in respect to the Negative procedure. These motions are Early Day Motions and no time is fixed for the motions. On the other hand, an individual member may table a motion in the House of Lords with the prayers to annul the statutory instrument. Where there are no objections to the statutory instrument subject to this procedure then there is no parliamentary procedure on it. The motions for annulment are debated in parliament, but often by the delegated legislation committee, and where necessary a vote is conducted to annul such instrument. Affirmative procedure Although this procedure is less common than the Negative procedure, it provides a more rigorous parliamentary control. This is so because the instrument must receive the approval of parliament before it is annulled. Statutory instruments subject to affirmative procedure are laid before parliament in draft orders. The draft order has to be approved by parliament in order to be printed and become effective. A motion approving a draft order has to be made by both houses. The responsibility to approve it lies with the minister laying the order for approval. A statutory instrument subject to this procedure also requires 28 or 40 days after it is laid in parliament to be annulled or remain in force. The relevant minister prepares a motion in this respect and it is upon the minister to ensure that the statutory instrument is discussed within a reasonable time. Question 1 (part d) i) Tom has committed an offense under section 3(1) of the Act by passing information to his friend Bill. The Act prohibits a relevant person from passing information without lawful authority. Tom falls under the category of a relevant person pursuant to section 4 (c) of the Act, which defines a relevant person to include individuals engaged by the BBC. Section 7 of the Act provides that if an individual commits an offense under section 3 then that person is liable to imprisonment for a period not exceeding two years or to a fine on conviction on indictment or imprisonment for a period not exceeding 12 months or a fine on summary conviction. ii) the provisions of sub section 5 implies that if an individual commits an offence under section 3 (2) of the Act then the individual can claim a defense under sub section 5 only if the individual demonstrates that at the time the offense was committed the individuals had a different notion. This implies that if the individual believed or had reason to believe that the act amounting to the offense was not considered an offense under section 3 (2) of the act. The Act further provides for circumstances, which suffice as defenses and include where the individual believed the disclosure was lawfully authorized and where the information in question had been disclosed to the public previously and the individual did not have reason that the current disclosure was otherwise unauthorized. In relation to Mary’s case, therefore, she can claim this defense if either or both of these two prerequisites exist. Question 1 (part e) Advantages of delegated legislation Delegated legislation saves parliamentary time as the formulation and another body carries out the drafting of the respective legislation. Delegated legislation also allows for rapid changes to the legislation as the process involved in the amendment and modification of delegated legislation is not as cumbersome as the parliamentary process for amending laws. It is also noteworthy that some legislation require technical knowledge in formulation but parliament may lack such knowledge therefore delegated legislation incorporates this aspect of technical knowledge as the laws are drafted out of parliament and probably by individuals or another body in a better position to comprehend the technicalities required. In essence delegated legislation concerns technical aspects and as such it is logical for specialists to formulate these laws rather than by the members of parliament who ordinarily lack such expertise. Delegated legislations also provide a quick legal framework to new developments where the desired legislation is required urgently. Due to the technical parliamentary process on legislation, the desired legislation may require longer time if enacted through parliament therefore delegated legislation is preferred. At time’s legislations are required when parliament is not sitting and therefore delegated legislation is the only solution to provide a legal framework. Additionally delegated legislation enables minor changes to the legislation like variation of sentences in the legislation and minor corrections to the wording of the legislation without requiring a technical process to do so. Delegated legislation also allows seeking of judicial review. It gives room for parties directly affected by such legislation to seek judicial review on the matters concerning the legislation and does not require the consideration of parliament but courts can judiciously decide by the issues. Furthermore, the legislation resulting from delegation are subject to easy amendments or withdrawal altogether without many complexities in comparison to acts of parliament. Disadvantages of delegated legislation Delegated legislation brings about the question of democratic accountability since it supposes the position of parliament as far as enactment of laws is concerned and it takes the law making process away from the democratically elected process. The power to make laws diverts away from parliament and granted to civilians without following the due process required for making legislation therefore the process is undemocratic. The authority vested in the parliament to make laws delegates away from it through sub delegation where the laws are made without the direct participation of parliament as required by the legislative process of parliament. Given the technicality of much of the delegated legislations, it is imperative that parliament lacks the expertise to scrutinize the often technical, detailed, and specific nature of the provisions of delegated legislation. This means that parliament cannot effectively review the contents of delegated legislations and even with the presence of scrutiny committees the powers of these committees are limited and are unreliable. Similarly, the volume of this delegated legislation produced is massive and this implies that it is practically difficult for the members of parliament to keep up to date with the delegated legislations. This problem also affects the general, public and results from making delegated legislations in private distinct from acts of Parliament which are made in public and following parliamentary debates accessible to the public. Delegated legislation is also subject to the doctrine of ultra vires, which may render the whole legislation a nullity or inapplicable in circumstances where correct procedures in making the legislation are not adhered to therefore resulting in a waste of time and money in making such legislation. Delegated legislation also results in uncertainty and confusion due to the complexity and lack of knowledge of the existence of these laws because of the volume of delegated legislations produced and the technicality of some of these legislations. Question 2 Question 2 (part a) (a) i) applied in this context simply means that in arriving at the decision of the cased these cases were referred to and the judges came to their judgment while under the guidance of the principles of these cases. Application of prior decided cases in making a judgment is essential as it follows the concept of precedence, which provides a consistency in subsequent decisions. Another case applied in the decision in D & C Builders v Rees [1965] 3 All ER 837 is the case of Goddard v O'Brien (1882), 9 QBD 37. ii) a) nadum pactum means a contract made without considerations. b) cur adv vult means that the court has decided to make considerations before giving its judgment. Question 2 (part b) i) Judge Trapnell on the preliminary decision given on May 5 followed that that acceptance of a cheque for ?300 by the plaintiff company in settling the debt of ?482 13s 1d did not release the debtor of the debt, and that the balance was recoverable by the plaintiff company. This decision resulted in the appeal by the defendant. ii) The appellant based the appeal on the point that there was accord and satisfaction in the acceptance of the lesser sum in full satisfaction of the greater sum and therefore the balance of the debt was not recordable. The appellants claim on accord is that the plaintiff agreed to accept a lesser sum of ?300 and subsequently accepted the lesser sum amounting to ?300 thereto resulting in satisfaction. iii) a) The court consulted volume 8 of the Halsbury's Laws (3rd Edition) to make reference to the concept of accord and satisfaction and especially on discharge of by accord and satisfaction. b) The court consulted volume 15 of Halsbury's Laws (3rd Edition) in making reference to the concept of promissory estoppel. Question 2 (part c) (i) The principle in Central London Property Trust v High Trees House Ltd provides that an agreement to accept a lesser amount is binding to the parties if there is accord and satisfaction. This principle dictates that where a party voluntarily agrees to accept a lesser amount as satisfaction for the whole debt then that party cannot thereafter sue for the balance. It follows that where a debtor and the creditor agree on a compromise and the creditor accepts a lesser amount and the debtor in good faith pays the lesser amount the creditor cannot recover the balance of the debt. It is noteworthy that the principle holds only where there is accord and satisfaction and the party receiving the payment must do so voluntarily. ii) Lord Denning in arriving at his decision to dismiss the appeal in this case looks at the principle in Hughes v Metropolitan Ry Co ([1874–80] All ER Rep 187 and Central London Property Trust v High Trees House Ltd [1956] 1 All ER 256. The principle in this case is that where there is an equitable negotiated consent on non-enforcement of the strict rights then a party cannot thereafter seek to enforce the strict contractual rights where the enforcement would be unreasonable. Lord Denning notes that the principle does not only suspend these rights but also precludes their enforcement. However, he further notes that the principle only applies where it would be inequitable to enforce the rights but there must have been a true accord where the creditor voluntarily agrees to accept a lesser amount in the satisfaction of the whole. This implies that the principle is bounding to the creditor if there is a true accord between the parties. In reference to the present case, Lord Denning finds that there was no true accord to the part payment since the plaintiff was intimidated and that it is inequitable for the appellant to refuse to pay the balance. Question 2 (part d) The decision in this case is that a payment of a lesser amount by way of cheque satisfied the greater sum and therefore the balance was irrecoverable. Lord Denning in dismissing the application of the rule set forth in Goddard v O'Brien faults the decision and states that payment of a lesser amount cannot discharge the greater sum. He notes that irrespective of the method of payment a lesser sum cannot settle the whole amount. Similarly, Danckwerts discredits the decision in Goddard v O'Brien and states that although a cheque from another person can result in accord and satisfaction in some circumstances it is not sensible that the debtor own cheque for a lesser payment can satisfy the whole debt. In his view the use of a cheque in settling the debt is not similar to a gift of a horse, hawk or a robe as referred to in Pinnel’s case. According to Danckwerts the decision in Goddard v O'Brien was a wrong decision or that decision was not applicable in the current circumstances. Additionally Winn LJ shows doubt on whether the case of Goddard was decided rightly. He points out that when the cheque was given it was not in substitution of the debt but as a conditional payment for the amount owed. He agrees that the payment by cheque was not comparable to a gift and that the cheque for a lesser amount would not satisfy the whole sum but on the same footing as satisfaction of the greater sum by a lesser amount. The decision of the court in respect to Goddard v O'Brien was to decline the position of this case and hold that where a debtor makes a cheque payment for as lesser sum than the debt and the creditor accepts the payment then the cheque only serves as a conditional payment. Question 2 (part e) Equity evolved as a source of law due to various reasons and eventually became a more preferable source as compared to other sources of law. Equity sought to supplement the common law principles with much flexible and remedy oriented approach to justice. Equity aims at providing remedies that are more beneficial to litigants and therefore puts into consideration the aspects of justice fairness. The basic underlying principle of the law of equity is that it does not allow a wrong without a remedy. In consideration of this principle, equity came to replace common law by supplementing its defects and providing remedies where common law lacked remedies. Equity changed the approach of law towards completeness by ensuring that remedies followed all wrongs. Equity achieved this by introducing concurrent remedies, exclusive rights, and auxiliary procedures to those available in common law. Equity therefore follows the law as it complies with the provisions of common law but ensures adequately remedies to wrongs. The introduction of new remedies by equity stems from both the inadequate or inappropriate remedies available in common law. Equity supplements the strict rules of law adhered to by common law where adherence to these strict rules would result in harsh outcomes. The basis of equity is the part of natural law that is justifiable where the remedy granted by common law seems unfair and contrary to justice. Equity places emphasis on fairness and flexibility and not guided by rules but rather by maxims. Consequently, equity provided a remedy where it was unconscionable if individuals had relied upon the defective system of common law. Primary to the concept of conscionably is the aspect of the element of an advantage taken by the defendant which aspect the defendant conscionably agrees belongs to the other party. Equity therefore intervenes in circumstances where the behavior of the parties is taken into consideration in arriving at a just decision. The maxims of equity are not hard rules that require rigorous application in cases and allow the application of more than one maxim. This therefore implies that the remedies in equity are discretionary as opposed to right based remedies available in common law. The courts exercises discretion in the application of the maxims of equity and grant a remedy to a party only where such remedy is conscionable. The evolution of the use of the principle of equity received a further boost from the decision in the Earl of Oxford case involving a deadlock between a common law judgment and an injunction sought through equity. The outcome of the deadlock resulted in upholding the injunctions from the Court of Chancery to stop the proceedings in common law. The determination resulting thereof was that if in cases where there arises a conflict between common law and equity, equity superseded common law. This position gave rise to the Judicature Act 1873 giving recognition to the concept of equity and resulting in precedence in respect to equity. This demonstrates the legal significance and importance of the concept of equity over common law and supports the evolution of equity. The development of the rules and maxims of equity also ensure evenhandedness in the administration of equity. The focus on fairness by equity also plays an instrumental part in the evolution of equity as the policies of common law insisted on rights, which at times result in injustice. Whereas common law remedies focus on money, equity recognizes the limitations of the use of money in providing remedies and provides other remedies such as specific performance and injunctions where money cannot serve as sufficient remedy for wrongs. Additionally the concept of equity evolved to keep in touch with developments in the dispensation of justice for wrongs suffered by providing a flexible approach in the provision of remedies in law. Read More