Major Questions in Law - Essay Example

LAW Question i) Define Law There are quite a lot of definitions of law but no agreement as to the precise meaning. Some of the definitions of laware as follows: According to Blackstone:-- “Law signifies a rule of action, and is applied indiscriminately to all kinds of action”. According to Holland:-- “Law refers to a general rule of action, taking cognizance only of external acts enforced by a determinate authority, which authority is human, and among human authorities is that which is permanent in a political society”. According to Salmond “Law is the body of principles recognized and applied by the State in the administration of justice” According to Wilson “Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of Government.” ii) Explain the following sources of law and two of their benefits: a) Common Law and Equity b) Legislation Common law is a law created by judges, as opposite to laws authorised by a legislative body. When a case is decided by a judge then his decision and the basis of the case becomes a precedent which other courts follow while deciding a case which is similar in nature. The systems of rules of Common law is dependent more on judicial decisions and less on civil law systems which in turn is dependent mainly on written laws and statutes. The main feature of the English legal system is that it is living and constantly evolving to work in the future as well as it did in the past1. Thus the single most unique feature of the English legal system is its inheritance from common law2. Most of the characteristics commonly linked to English law and its management of righteousness are traceable to the early on growth in Western Europe of the civil and common law customs. According to Goodman (1995), "several characteristic consequences flow from the fact that law did not emanate from one centralised authority such as papacy, king or parliament. The odd growth of the common law in England developed it appears from a coincidence resemblance of the implementation after the Norman take-over by consecutive monarchs of native customs as the foundation for the governance of justice. Conflict assessment, chiefly concerning land title, was a key function for justice. Judges were nominated by the king to tour the country and decide controversies, aided by a local adjudicator included by the Normans into operational royal courts. The trial accepted a key role in the settlement of disputes. Wilson (1995) states that “Everyone takes for granted the fact that law and legal systems differ in different countries. But it is also true of legal scholarship. One reason for this is the different responsibilities legal scholars have in different countries for the maintenance and development of the local law...One result is that legal scholars in different countries may have different agendas and this may affect the subject matter, scope and even the form and style of the local legal scholarship.” According to Blackstone and Morrison (2001) common law was "... to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, prescribed and handed down to us from the times of ancient antiquity. They are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of common law." Equity law was developed after the common law to setoff the fixed versions which the medieval English judges were giving the common law. But still the common law is more flexible than the civil law or any other fully statute dependent legal systems. According to Justice Cockburn in Wason v Walter (1868) 3: "Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which a rise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied." The law for Equity was a separate, stretchy law established on the Chancellor’s moral sense and utilised where no dictated common law remedy subsisted. Equity turned out to be popular and now it proceeds to provide a remedy for the altering requirements of society where no remedy can be detected at common law. Legislation is the commonest source of new laws or of law reform after the Seventeenth century. The most vital legislation is Acts of Parliament which is known as primary legislation. This becomes binding only after approval in the House of Commons and the House of Lords; after which it gets the Royal Assent from the Queen. A larger volume of legislation is these days made under the influence of primary legislation by Government Ministers, and there is no need of any approval from the Parliament in advance. This is known as delegated or secondary legislation. Delegated legislation is brought out under a precise power in the "parent" or "enabling" Act. Such legislation is published in the form of statutory instruments and may be styled as "regulations" or "orders". Delegated legislation is used for the following reasons: i. To save time in Parliament. ii. To permit for expert participation into their plan and proficient language to be utilised in their wording iii. To permit suppleness in reacting to events and representations Question 2 i) Discuss and explain the hierarchy of the main civil courts in the English legal system. The civil justice is a chief area of the English legal system and is planned to separate challenges between individuals or organisation. This system has been modified with in many years as a result of specific propositions made by civil justice review and carried out in the Court and Legal Services Act 1990. There are four major civil courts in the English Legal System, which accommodate civil jurisdiction: the County Court, High Court, Court of Appeal and the House of Lords. There are also minor civil courts like the magistrates court and the European Court of Justice, which sets case law for all the courts. The County Court covers with the broadest range of civil matters. There are at present around 300 county courts Source: http://www.law.duke.edu/lib/researchguides/english accessed on 6th May 2010. ii) Explain the three track system for allocation cases between courts. The English law cases are allocated a three track system of trial. They are as follows: Small Claims Track Under this claims up to £5,000 in value (£1,000 for cases that involve personal injury or certain housing unsoundness claims) are taken up. Allotment of cases to this track is not routine but it is subject to the court’s thoughtfulness of the Statements of Case presented by the parties. Fast Track Fast track applies to claims which have a value between £5,000 and £15,000. When apportioning claims to the Fast Track, the court will provide case management instructions to the parties and may arrange a rigid timetable and determined price limits. The trial date may be determined at this stage and will usually be within 30 weeks. Multi Track Multi track applies to claims which are above £15,000. This necessarily includes most commercial cases. Apart from taking into consideration the monetary value of a claim, the Court, when apportioning a claim to a track, will regard other elements like: 1. the intricacy of the case; 2. the significance of the claim to the parties and to others; 3. the considerations of the parties; 4. the quality of the proof to be demonstrated; 5. the trait of any counterclaim(s); and 6. The number of parties affected. Question 3 In relation to company law: i) Explain the powers and the duties of directors Duty to act within their powers This is based on the common law rule that directors must use their powers only for such actions for which they were given the powers. Duty to promote the success of the company (section 172) The duty which is laid down in section 172 substitutes the common law duty of dedication. This duty of the Directors is often worded as the duty to act in good faith and also in the best concerns of the company. The new duty requires a director to encourage the success of the company. The promotion should be for the welfare of the members as a collective body: it should not be just for the sake of the majority shareholders, or any individual shareholder or section of shareholders. This duty on the part of the directors calls for the following six specified factors: - The likely effects of any resolution in the long term -The interests of the company’s employees -The need to promote the company’s business dealings with suppliers, customers and others. - The affect of the company’s procedures on the community and the environs - The desirableness of the company preserving repute for high standards of business conduct -The need to act reasonably as between members of the company. (http:www.law-now.com accessed on 6th May, 2010). Failure to Act in honesty by the Directors of the company in compliance to Section 172: This duty of the directors has led to recent corporate failures in protecting Shareholders money were the prime reasons behind the Company Law Review to form a model of the Company in the Companies Act, 2006.  On a close scrutiny, it was alarming to note that the non-executive directors of these Companies were too near to executive directors holding too many jobs at a time and did little to control corporate abuses. Many of them forged the accounts to give themselves lavish fat cat rewards, bonuses and share options. They made extensive use of tax havens to create complex corporate structures and produced opaque accounts. Auditors were in hand with management and their reports were misrepresenting. Thousands of innocent people have lost their savings, investments, pensions, jobs and homes because of this. 3. Duty to exercise independent judgment Section 173 of the Act enforces a positive duty on a director of a company to practice self-governing judgment. 4. Duty to exercise reasonable care, skill and diligence This duty is laid down in s. 174(1). It systemises the common law rule of duty of care and skill. S. 174 (2) dictates the level of ‘care, skill and diligence’ anticipated from a director; 5. Duty to avoid conflicts of interest The conflicts of interest provisos are previously held in Part 10 of the Companies Act 1985 and are quite multifaceted. The Act repeats, improves, and changes these provisos to make them more reachable and with a view of supporting modern business practice. 6. Duty not to accept benefits from third parties This is line with the present rule known as ‘non profit’ in that a director is not allowed to take a benefit from a third party because (a) he being a director or (b) he does or does not do anything as a director. 7. Duty to declare interest Section 177 of the Act reflects s.317 of the 1985 Act in that it calls for a director to reveal his interest to the board of the company when dealing is suggested between a director and his company. Disclosure also covers a person linked with the director, for instance, his wife and children. Distinguish between: a) Executive directors; and b) Non- Executive directors An executive director is an associate of the board of directors and a member of staff of the company. He/she will have a detailed role for instance finance director and as such they are responsible for the day to day management of the company inside their sphere. A non executive director is also an associate of the board but not an employee of the company. He/she is for his/her proficiency and is allowed to take part in decision making at board meetings. The non-executive’s function is an ‘over-viewer and whistle blower’, assuring attachment to good practice, honour for the interests of other stakeholders and attachment to the procedure of boardroom discipline. Non-executive directors are time and again thought of as “advisers” even though this is not the case. The role is bigger than this – the non-executive is a director and shares the legal obligations and duties of the executive directors. Question 4 i) In relation to the tort of negligence, explain the standard of care owed by one person to another The law of negligence was originated in a court case Donahue v Stephenson (1932) in which a woman named Donahue suffered from gastro-enteritis after drinking ginger beer from a bottle which contained a dead snail. She took legal action for damages for personal injury. The judge who heard the case was Lord Atkins, and he ruled for the first time ever, that the manufacturer of the ginger beer had a duty of care for the safety and well being of Donahue, notwithstanding that it was her friend who had actually bought the bottle, and in allowing a snail to remain in the bottle of ginger beer, the manufacturer had been negligent. The scope of the duty of care in negligence was defined by Lord Atkins in this case. He found: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question." ii) Roger is a keen boxer. He has been successful in many fights but recently took part in a fight in which he lost to jack. The fight took place under the necessary safely regulations and was stopped before Rogger was beaten too badly. However soon after the fight it was clear he had received severe brain damages and now has difficulty talking. Assuming the fight organisers have breached their duty of care, do they have any defence that will limit or eliminated their ability for the injuries caused to Roger? Breach of the duty of care was best conceived and summed up in Blyth v Birmingham Waterworks where Baron Alderson stated: “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 prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.” Bibliography Books 1. Allen, C., 1927. “The Law in the Making.” Oxford: Clarendon Press, p.302. 2. Baker, J. H., 2002. “An Introduction to English Legal History.” London: Butterworths Lexis Nexis. P.196-197. 3. Buckland, W. and McNair, A., 1965. “Roman Law and Common Law.” Cambridge: University Press. 4. Blackstone, William, and Morrison, Wayne. 2001. “Commentaries on the Laws of England.” Routledge Cavendish 5. Brenner, Saul, and Harold Spaeth. 1995. Stare Indecisis: The Alteration of Precedent on the Supreme Court, 1946-1992. New York: Cambridge University Press. 6. Bussani, Mauro, and Vernon Valentine Palmer (editors). 2003. Pure Economic Loss in Europe. Cambridge: Cambridge University Press. 7. Holmes, Oliver Wendell. 1897. The Path of the Law. Harvard Law Review 10: 457-478. 8. Daniel Webster, Edwin Percy Whipple, (2006), The great speeches and orations of Daniel Webster: with an essay on Daniel Webster as a master of English style, Little, Brown, & co. 9. Gary Slapper, David Kelly, (2001), Sourcebook on the English legal system Cavendish Sourcebook Series Cavendish Publishing sourcebook series, Routledge. 10. Goriely. T, 1998. “Making the Welfare State Work”, in F. Regan, A. Paterson, 11. Goriely, T. and Fleming, D. (Eds.) The Transformation of Legal Aid, Oxford: Oxford University Press. 12. Genn, H. 1999. “Paths to Justice: What People Do and Think About Going to Law.” Oxford: Hart publishing, p.12. 13. Merson, Rupert. 2003. “Non-Executive Directors.” Profile Books Ltd 14. Paul Bergman, Sara J. Berman, (2008), The Criminal Law Handbook: Know Your Rights, Survive the System, Nolo. Web Sites 15. http://www.law.duke.edu/lib/researchguides/english accessed on 6th May 2010. 16. http://www.chriswallis.com/uni/cnlaw231l01.pdf accessed on 6th May 2010. 17. http:www.law-now.com accessed on 6th May, 2010 18. http://www.bytestart.co.uk/content/legal/35_2/companies-act-directors-duties.shtml Acts and Statutes 19. Companies Act 2006 and Private Companies 20. Companies Act 2007 - Major Changes for Small Business Owners Read More