Marketing and the Law: UKs Civil Court System - Dissertation Example

Marketing and the Law: UK’s Civil Court System Source: http://www.hmcourts-service.gov.uk/aboutus/structure/index.htm Supreme Court is yet to be introduced in UK. If introduced, it will be the highest court of the land. House of Lords is the present Supreme Court of UK, and it is the final and last appeal court. Appeals will be heard by this court on various points of law when there is a difference of interpretation arises. There are two divisions in the Court of Appeal namely the civil division where appeals against High Court decision will be heard and the Criminal division where appeals against Crown Court will be heard. Higher levels of civil disputes are handled by the High Court. Crown Office or the Administrative Court deals with the following; Habeas Corpus applications Petitions under the “Criminal Justice Act 1988” and under the “Drug Trafficking Act 1994.” Judicial Reviews Statutory applications and appeals. (Hughes & Ferrertt 2005:5). The County Court – In U.K, there are about two hundred sixteen county courts and these courts are dealing with the lion’s share of civil litigations and some bankruptcy and family hearings. The County courts are in the lowest category of the U.K legal structure and it is here, where most complex civil law litigations are taken up. Some of the civil cases include the following; Personal Injury Claims for debt Infringement of contract regarding property or products Family disputes like adoption or divorce House repossession Each county court will have Bailiffs, who will implement court instructions and attempt to recover the money if a judgment is yet to be paid. (Hughes & Ferrertt 2005:5). Criminal Courts: Magistrate Courts: Magistrate court deals with the majority of the criminal cases in U.K. For instance, enforcement officers will initiate health and safety cases in magistrate courts and these will be heard by a sole District’s judge or by a bench consisting of 3 lay magistrates. Lay magistrates are selected from general public who may have very little legal knowledge, whereas a district judge will have an adequate legal qualification. For those who infringe prohibition notice, a magistrate court can levy a maximum fine from £5000 to £20000 as fine or also can pass order for imprisonment up to six months. Crown Court: Verdicts of Magistrate’s court can be appealed to the Crown Court or where it is passed from the Magistrate’s court. Some cases are heard by a Judge alone, whereas the majority of the cases are heard by a judge and jury. For the infringement of enforcement notice, a Crown Court can levy unlimited fines and can impose imprisonment up to two years. Appeals against the verdicts of Crown’s Court are mad to the Court of Appeal (Criminal Division. A leave of appeal can be sought in the Court of Appeal to be heard in the House of Lords. The Court of Appeal will have the most senior judge who is known as the Lord Chief Justice. (Hughes & Ferrertt 2005:5). Portfolio 2: The General Principle of Law If two or more individuals enter into a valid agreement which will be acknowledged and enforceable by law is known as contract. Not all contracts are legally binding. There must be a genuine intention to establish an enforceable lawful relationship that the law will acknowledge. If there is a clear, unambiguous agreement, an exchange of valuable consideration where the parties have the ability to contract and if all the legal needs have been complied with, then it will be recognised as a valid contract. (Fitzgerald & Olivo 2005:1) There should be ‘consensus ad idem’ or ‘meeting of minds’ for a valid contract. This has been held in Centrovincial Estates v Merchant Investors (1983 and in Hartog v Colin and Shields). (Macmillan & Stone 2009:13). Intention of parties to a contract should be inferred. Thus, a valid conclusion from the realities as in complete as to which might have been the real objectives of a reasonable person in the situations of the contracting parties. In Oscar Chess v Williams (1957), court had to conclude whether a warranty was planned or not. (Macmillan & Stone 2009:13). There should be a valid offer and acceptance. An offer is a term eagerness to arrive at a contract on some specific terms. It must be put forthwith with an objective that it will be binding on such acceptance. In Storer v Manchester City Council (1974), a binding contract was found by the Court of Appeal. The Manchester City Council had forwarded a message to Storer that they meant would be binding on his acknowledgement. Thus, Storer has to state his acceptance for the later sale by signing the deed and return the same to the council. (Macmillan & Stone 2009:23). In Gibson V Manchester City Council (1979), the Manchester City Council forwarded a formal invitation to buy to Gibson and informed that Council may be ready to dispose the house to Gibson. Gibson returned the document by signing. However, the House of Lord viewed that no contract was formed since the Manchester Council had not tendered an offer which was capable of being acknowledged. An important distinction between the above two cases is that in Gibson’s case, there was no agreement as to price but in Storer’s case, it was present. Further, in Gibson’s case, the important terms still required to be concluded. (Macmillan & Stone 2009:23). An invitation to treat is not an offer. A display of products was held as not an offer in Pharmaceutical Society v Boots (1953). However, in Fisher v Bell (1961), where a machine has made the display, and it was treated as an offer. In Carlill v Carbolic Smoke Ball Company (1983), it was held that an advertisement was an offer. (Macmillan & Stone 2009:24). For a valid contract, there should be a proper acceptance of an offer. Thus, the acceptance should be an accord to all the conditions of the offer. Mirror image of an offer is said to be the acceptance. In Day Morris Associates v Voyce,1 it was viewed that an estate agent’s offer to dispose off a property had been acknowledged by the demeanor of the client. The client’s demeanor thereby permitting the agent to advertise the property and to demonstrate it to many proposed buyers around it. If any counter-offer is made during the time of acceptance, it is not a valid acceptance. There should be free consent and contract due to coercion will be bad in law. Likewise, capacity of contracting parties is also significant as any contract with a minor, insane person is void. (Macmillan & Stone 2009:27). Portfolio 3: Law of Negligence In Donoghue v Stevenson (1932), the plaintiff initiated an action against the producer of ginger beer, which was bought by the plaintiff at a café. A dead snail was found after she drank some of the ginger beer. The plaintiff experienced nervous shocks and gastro-enteritis problem due to this. House of Lords held that there existed action under the tort of negligence even though there is no contract between the plaintiff and the producer of ginger beer. The fundamental of the case was that the producer owned a duty to the consumer to see that no harmful substance was present in his product, and as he infringed this duty and due to that, plaintiff experienced sufferings. Donoghue's case has, in fact, established the presence of negligence as a separate tort in its own privilege by an authoritative court for the first time. (Harpwood 2000: 22) The Consumer Protection Act, 1987 offers further liability on the manufacturers where damage is created by a deficiency in a product. Under this act, liability covers only to consequential damages in the guise of personal injury or damage to the property. The verdict in the Donoghue case has, in fact, demonstrated a series of negligence and makes a rule of fault –oriented accountability on the part of producers, which will include retailers like Best Buys. Mrs. Jones can cite the Donoghue case for her case. Mrs. Jones can initiate a cause of action against Best Buys if she can demonstrate that there has been negligence on the part of Best Buys by selling damaged chicken curry. Mrs. Jones may employ the principle of res ipsa loquitur, which connotes “the facts speak to itself”. Thus, Mrs. Jones can employ this rule to establish an inference that Best Buy was probably negligent footing upon the truth of the incidence itself, although she has no direct proof what actually the defendant did. The res ipsa loquitur rule was applied in Scott v London and St. Katherine Docks Co. (Emanuel & Emanuel 2008:26). As a legal advisor of Best Buy, I feel that Mrs. Jones is having a strong case. Best Buy may lose the case on the lines of the verdict given in both Donoghue and in the Scott v London and St. Katherine Docks Co. Further, due to incorporation of Product Liability Directive of European Commission in the Consumer Protection Act 1987, this act has offered a great leap by eliminating the necessity to substantiate negligence. Thus, Mrs. Jones has to prove that her sufferings were due to a defect in the product. The suffering or damage definition may include injury or death thus entrenching unsafe food within its ambit. A consumer brought such action who had suffered food poisoning or botulism due to consumption of hazelnut yogurt, which had been made with polluted hazelnut puree. This law also removes the necessity for there for a direct contractual relationship with two parties engaged. Any consumer though he may not a direct buyer can initiate action against the seller under this law even without any contractual relationship. In view of this, as a legal advisor, I would advise Best Buy to make a compromise with Mrs. Jones to arrive at an out of court settlement instead of fighting and losing the case in the court. If a customer of bestbuys had wantonly pierced many tins of food with sharp instruments, then bestbuys is entitled to claim damages from Mrs. Jones for non-fraudulent misrepresentation under the Misrepresentation Act, 1967. Best Buy must demonstrate that the appellant or plaintiff did not suffer a legally acknowledged injury. In this case, where Mrs. Jones had voluntarily punctured the tins and if Bestbuys is able to demonstrate that Mrs. Jones was not sustained any injury and had made a false claim ; or that the appellant had not encountered such an injury for which law offers a recovery of damages. For instance, if Mrs. Jones has not sustained any illness but has the concern that she might be developing the same in the future. Whether Employee is liable? If any damage is done by the present employee of the Best Buy, then Bestbuys is responsible for damages for the injury caused by an employee or agent of the Bestbuys. Contributory damages Where Mrs. Jones and Bestbuys are equally responsible for the injury, a defense was implemented by the statue namely “Contributory Negligence “Act of 1945. As per this law, it is feasible to find for the appellant but minimise the damages by a proper quantum to mirror the fault which the plaintiff herself has made and the quantum of responsibility for the outcome which she should assume. Thus, under contributory negligence, an English court can find both the Bestbuys and Mrs. Jones are equally responsible for the damages and award damages accordingly. Quantum of Damages The onus of proving evidence of the casual association between any infringement of duty by Bestbuys and the injury sustained by Mrs. Jones rests with Mrs. Jones herself, as corroborated in Foster v Biosil. If Mrs. Jones could not succeed in meeting the requirements of onus of proof, her claim for damages may not succeed. If Mrs. Jones wants to be successful by citing Aswan Engineering verdict, she could be able to recuperate “non-inherent “injury caused due to contamination in the chicken curry. Mrs. .Jones can also claim for loss of damages sustained due to the diminution in business profits due to her absence for two months. In Banque Bruxselles v Eagle Star Insurance, it was held that the type of loss, which recuperate before estimating the actual measure of loss. By making payment to the plaintiff the fiscal benefit's analogues of any advantages of which she has dispossessed off. By compensating Mrs. Jones against any liability or expenses which she has incurred. Portfolio 4: Intellectual Property laws: Intellectual Property emanates from the manifestation of a thought or an idea. Hence, an IP must be necessarily a design, an invention, brand, a music album or any other intellectual conception. The specialty is that such novel idea can be claimed ownership by the inventor and can be purchased and disposed. (IPO gov.uk) Patents safeguards the processes and features that make inventions to work smoothly. This facilitates the owners to enrich gains from their innovations. If an invention is not patented, then any person can imitate and enrich profits out of that invention without their permission. A registered patent gives a right and protection to inventors against infringement like selling, manufacturing, copying and using the one’s invention without his prior approval. (IPO gov.uk) Trademarks are emblems like brand names or logos that differentiate the services and products in the market. For one’s services or products, trademarks must be distinctive and is sanctioned for the period of ten years and renewable after the expiry of ten years. (IPO gov.uk) Design tells about the way a thing appears and pertains to its visual appeal or shape. It can be distinguished due to its specific design. Presently, only thirty shapes are safeguarded freely under the design right. Once in every five years, registered design shall have to be renewed. Registration will not be granted to moral offensive designs. (IPO gov.uk) Copyrights are granted to safeguard the rights of one’s intellectual work like lyrics, music, knitting patterns, photographs, artistic e, dramatic, broadcasting, cinema, etc. The period of copyright ownership is being protected depending upon the type or category of the work and normally estimated from the demise of the owner. (IPO gov.uk) The Department of Trade and Industry (DTT) controls and administers the IPO (UK Intellectual Property Office). The IPO is the administer for the national structure of Intellectual Property (IP) rights, which consists of designs, patents, copyrights and trademarks. The Intellectual Property and Innovation Directorate (IPID) is responsible for the policy development of the IPO in UK. (OECD 2008:251). The new law namely “Copyright and Trade Marks (Offenses and Enforcement) Act 2002 “has introduced salient amendments in the “Copyright, Designs and Patents Act of 1988 “and the “Trade Marks Act of 1994”. It has increased the utmost penalty for the infringement involving dealing or hire or sale in material of copyrighted materials from 2 years to 10 years and has set a limitless fine. The Patents Act 2004 is the modified version of earlier 1977 Patents Act, which came into application from October, 1 2005. The PA 2004 has introduced some transformation to assist with patent administration. (OECD 2008:251). The European Directive (2004/48/EC) was incorporated in the Intellectual Property Regulations, 2006 which offers a synchronised approach to the observance of civil initiatives for IP rights. In 2004, the National IP Crime Strategy was introduced, which intends to convey better-aimed implementation action. IPCG (the National IP Crime Group) whose members stand for enforcement officials, government and industry bodies was established by the IPO in 2005 to maneuver the work. Enhanced intelligence to enforce both internationally and nationally and better target enforcement work and to enforce to enhance the monitoring the system. (OECD 2008:251). Portfolio- 5 Ofcom is the independent body of the government of UK and is answerable to the UK Parliament. Ofcom is funded by grant-in financial aid from the government of UK and fees from the supervision and controlling of communications and broadcasting network. As per UK Communications Act 2003, main legal duties of Ofcom in streamlining the UKs TV industry are as follows: To see that UK is having a broad range of high-quality television, which is appealing to a variety of interests and tastes. That television services are offered by a wide range of organisations. To protect the gullible viewers from watching offensive or harmful material. To protect gullible public from being handled unjustly in television and stopping from the invasion of their privacy. (Stationary Office UK 2010:50) License from Ofcom is compulsory for all television channels in UK, which are subject to a wide array of licensing commitments and stipulations, drafted in the statute and implemented by Ofcom. Further, television industries in UK are also subject to UK competition law, which is overseen by the Competition Commission and by Ofcom. The EU Audiovisual Media Services ( AVMS) Directive which has been incorporated into UK is applicable to all channels licensed by Ofcom in UK The European Commission can and does interfere if it recognises what is regarded as abuse. The AVMS Directive stipulates that each channel must, wherever it is possible, exhibit a lion’s share of European programmes. Further, the broadcasting licensees in UK are required to report on a yearly basis on the magnitude of European subject contained in their transmission, and if it falls below the target, then they should demonstrate why it is not possible to accomplish their target. On a bi-annual basis, this information is to be put forward to the Department of Media, Culture and Sport of the EC. (Stationary Office UK 2010:50) Under the Quotas and the Communications Act 2003, all television channels authorised by Ofcom and even BBC channels too are subject to a variety of regulatory needs set down by the above act. These are normally acknowledged as grouped into three tires or levels of regulation. Level 1 frames regulations for issues like offence, harm and political impartiality. Including BBC, all broadcasters have to observe this code. Level 2 is applicable only to public service broadcasters who have license .There exists twenty-five percent independent production. It demands Ofcom to fix quotas for original UK production for each public service channel. It also needs Ofcom to fix minimum needs for current affairs and news on these channels. Like Level 2, Level 3 is also applicable to all broadcasters where Ofcom can tender guidance but not prescribe quotas. (Stationary Office UK 2010:51) Ofcom also stipulates that there should be some percentage of UK originated content in TV productions. For instance, public service broadcasters ( PSB) symbolised over ninety percent of all expended original UK television programming while satellite and cable channels accounting for the balance ten percent. Clause 21 of the Digital Economy Bill has placed a stipulation on Channel 4 to make appropriate media content that suits to the interests and tastes of young adults and older children. (Stationary Office UK List of References Emanuel Steven & Emanuel Lazar. (2008) Torts .London: Aspen Publishers Online. Fitzgerald, Jean & Olivo, Laurence M. (2005).Fundamentals of Contract Law. London: Emond Montgomery Publications Harpwood Vivienne. (2000). Principles of Law. New York: Routledge & Francis Taylor Group. Hughes Phil & Ferrertt Ed (2005). Introduction to Health and Safety at Work. London: Butterworth Heinemann. Intellectual Property Office UK. (2010). Types of Intellectual Properties. [online] available from < IPO gov.uk > [accessed on 2010, 11 May]. MacMillan Catharine & Stone Richard. (2009). Elements of Law of Contract. [online] available from [accessed on 2010, 11 May]. OECD. (2008). The Economic Impact of Counterfeiting and Piracy. New York: OECD Publications. Stationary Office UK. (2010). British Film and Television Industries –Decline or Opportunity? London; The Stationary Office. Read More