EXAM

C05Delivered by Catherine Gregory

EXAMComputer Based Assessment with 75 Multiple Choice Questions 2 hours long Answer them all.Syllabus is as follows:Ethics & Business 15%Ethical Conflict 10%Corporate Governance 10%Comparison of legal systems 10%

Syllabus ContThe law of contract - 20%The law of employment 10%Company Administration & Finance 25%Learning OutcomesStudy Techniques Attend lectures and do the questionsClass TimetableLecture 1 Comparison of English law with other legal systems Lecture 2 Law of ContractLecture 3 Employment LawLecture 4 Company formationLecture 5 Company administration and managementLecture 6 Corporate financeLecture 7 Ethics and Business / Corporate GovernanceLecture 8 Revision and Test!!!

By the end of today you will be able to:Explain the essential elements of the English Legal System and the tort of negligence by explaining how behaviour in society is regulated, the sources of English Law and the operation of the doctrine of precedence and negligence rules for professional advisers.Describe the essential elements of alternative legal systems by considering systems in other countries, describe the elements of Shariah law and describe the role of internal regulations.The English Legal System What is law?A set of procedures and rulesThere is a difference between criminal and civil law one regulates behaviour, the other relations, particularly business.There are three main sources of law in the English Legal System Equity & Common Law led to Judicial Precedent, Legislation and EU Law.Criminal LawA crime is conduct prohibited by law it regulates behaviour.State prosecutes e.g R v Brown.Objective is to punish fines or imprisonmentJudge and Jury prosecuteBurden of proof must be beyond reasonable doubt.Public lawCivil LawRegulates relationships and disputes.Judge will decide liabilityCompensation is normal remedyBurden of proof is on the balance of probability.Private lawThe Court StructuresSee Class NotesSources of LawCommon law a complete system of rightsEquity was applied at the courts discretionCustom was a major source of law in the olden days rights to property, rights of way.Common law means a system which is common to everyone, evolved after the Norman invasion in 1066.Where justice appeared not to be done, Equity was applied as a principle of fairness with discretionary remedies.Where there is a conflict, equity prevails.Equity and common law interacted to produce new rights, better procedures, fairer remedies.Case LawCommon law and equity evolved into case law decisions made in courts by Judges who examine the facts on a case by case basis, consider and apply the law.Judicial precedent is a system whereby decisions made in previous cases with similar facts, must be applied in other cases it ensures consistence.Stare Decisis means to stand by a decision.Ratio Decidendi and Obiter DictaLatin terms but ratio means that if the material facts of the case are a same, then the decision must be the same.Obiter dicta are other statements which do not form part of the ruling words said by the way.The hierarchy of the courts is important in determining which court is bound which decisions.Court structureHierarchy of the CourtsMagistrates bound by all higher courts, binds no-one not even itselfCounty Court, all higher courts, binds no-one not even itself.Crown Court, all higher courts, binds no-oneHigh Court, all higher courts, binds all lower courtsCourt of Appeal, all higher courts, binds all lower and itself.HierarchySupreme Court binds itself and all lower courts.ECJ All English Courts.CofA Young v Bristol Airways decided that court usually binds itself unless two of its decisions conflict, it conflicts with a subsequent Supreme Court decision or made with a lack of care.

PrecedentCan be departed from if overruled, reversed, distinguish the facts, obscure result, lack of care. Case: Mendoza v Ghaidan (2003) The 1977 Rent Act states that a spouse can inherit a statutory tenancy. The House of Lords in a previous case (Fitzpatrick v Sterling House Ltd) declared this rule not to apply to same sex couples. This now goes against the human rights convention of discrimination and so the precedent could not be followed in the Mendoza v Ghaidan case (2003) making the inheritance rights now equal setting a new precedent to be followed by lower courts.

AdvantagesAdvantages are:CertaintyClarityFlexibilityPracticality

LegislationMade by ParliamentParliamentary Sovereignty means Parliament can repeal, overrule and make new law.Types of LegislationPublic Acts Affects all members of the publicPrivate Acts individuals or institutionsEnabling Acts Delegated legislationConsolidating and Codifying legislationProcedureGreen PaperWhite PaperFirst ReadingSecond Reading DebateCommittee Stage 20 membersReport StageThird ReadingRoyal AssentInterpretationA Court can question the validity of an Act (contravenes EU Law)Literal rule gives words their ordinary meaning Whiteley v ChappelGolden rule avoids absurdity Re Sigsworth, murderer inheritingMischief rule interpret it in line with the mischief it was designed to preventSecondary / Delegated Legislationa) Statutory Instruments

b) Bye- Laws

c) Order in Council Emergency powers

EU LawThe United Kingdom has been a member of European Community since 1973 Therefore subject to European Community Law

Primary Law of the EUTreaty of ParisTreaty of Rome

These are directly effective and binding they become law without the country having to make any further law themselvesSecondary legislationsRegulations directly applicable uniformity throughout e.g working time regulationsDirectives requirements to change the law of the member state, they are not directly effectiveDecisions of the European Court directly binding on the recipient state.Quick TestWhich ONE of the following is the highest court in England? A The Court of Appeal B The Supreme Court C The High Court. D The Crown Court Quick TestWhich ONE of the following statements is correct? A The aim of the criminal law is to regulate behaviour within society by the threat of punishment. B The aim of the criminal law is to punish offenders. C The aim of the criminal law is to provide a means whereby injured persons may obtain compensation. D The aim of the criminal law is to ensure that the will of the majority is imposed upon the minority. TortA tort is a civil wrong. There does not have to be a contract in place.The person wronged can sue for compensation if they have suffered a loss.Various types of tort personal injury claims, professional negligence.Landmark case was Donoghue v Stevenson which introduced the neighbour principle.TortThere has to be a wrong committed, damage or loss suffered and there must be causation i.e. the acts of the defendant have caused the damage.Negligence must prove that a duty of care existed, breach of that duty, damage suffered.Landmark case of Donoghue v Stevenson introduced the neighbour principleNeighbourPersons so reasonably close, they should have been in contemplation.Whether a duty of care exists is a matter for the courts. Normally take into account - proximity, forseeability and just and reasonable to impose a duty of care Alcock v Chief Constable of South YorkshireNegligenceHas to be a duty and has to be a breach of that duty.Need to determine whether the defendant acted reasonably the reasonable man test.Standard of care will be higher if you are a professional.Children lower than adultsTake your victim as you find then eggshell or thin skull principle Paris v Stepney BCRes ipsa loquiturThe thing speaks for itself normally burden of proof is on claimant.This is reversed where it can be inferred that negligence was present i.e. Mahon v Osborne Surgeon leaving a swab in a patient!CausationLoss suffered as a result of the breachbut for test i.e. but for the defendant negligence, the loss would not have been suffered.Defendants act must be directly linked to the loss the chain of causation The Wagon MoundDefencesContributory negligence Sayers v HarlowVolenti non fit injuria or consentStatute of Limitations have to bring an action within six years however coal mine cases, PPI!Negligence extendedCareless statements AuditorsHedley Byrne v Heller financial lossNegligence extendedCaparo v Dickman extended the principle to financial loss and introduced a three step test:1.That harm was reasonably foreseeable2. That there was a relationship of proximity3. That it is fair, just and reasonable to impose a duty of care

CaparoNo duty of care to the public at large but did owe a duty of care to shareholders as a body.Duty of accountants is higher when advising on takeovers ADT Ltd v BDO specific statement made at a meeting.To establish negligence look at capacity, reliance and forseeabilityCA 2006 introduced ways in which auditors could limit liabilityQuick TestThe Caparo test for duty of care provides that three factors must be taken into account. Which of the following is not included?a) 'Fair, just and reasonable' b) Proximity c) Morality d) Foreseeability

Quick TestWhich of the following is not a required element in establishing a negligence action?a) Breach of duty b) Malicious intent on the part of the defendant c) Duty of care d) Causation of damage of a legally recognised type

Quick TestWhich of the following best describes the main function of 'duty of care' in negligence?a) It ensures that the correct defendant is sued b) It ensures that the claimant is always within the time limit for binging an action. c) It ensures that the tort of negligence does not extend too widely d) It ensures that the wrongdoer has actually been careless

Alternative Legal SystemsA legal system is a mechanism for developing law in particular countries.It is a set of rules and it regulates relationships, behaviour and offers a course of redress.All countries have some sort of legal system.Legal systemsThree types of lawCommon law Judge Made law, basis of English system and spread to RSA, Australia, Canada.Civil law Statutes and administrative regulations Roman Law. Needs to be certainSharia Law Founded on the religion of IslamDifferent types of lawPrivate law actions between private individualsPublic law public interest, breaches of regulationsProcedural law regulates access to system and rights of disputing partiesInternational law regulates relations between different countriesLegal SystemsEnglandCommon LawPublic LawPrivate LawPolandA democratic republic operating a codified legal system Main sources Parliament Regulations International laws Local laws

Courts Within each district or province GermanyGermany A democratic state in which all are equal Main sources Parliamentary

Codified law including delegated legislation (Ordinance and statutory instruments Customary law

Not based on necessarily judicial precedents but binding judgements filter from higher courts to lower who respect their earlier decisions. FranceL.O Compare and Contrast the elements of alternative legal systems, Sharia Law and the role of international legal relations France

Typically a codified system except for the law of tort Main sources Private law Public law

Courts - Trial level - Appeal level - Supreme level

DenmarkDenmark Has a strong influence from German and Nordic laws Man sources Constitutional acts Acts of Parliament Case Law Custom Law

EU CountriesEmerging pattern of similarity between European Law systemsInternational systemsRussia Split into three branches 1. Arbitration court system business entity disputes2. High court of arbitration 3. Regular court system The peoples court

The Supreme Court sits at the top of this system, there is also a constitutional court which acts as a single body with no courts underneath it. USAOperates a federal system with a national constitution to guarantee certain rights and freedoms Sources of law Federal courts United states congress National government enact law, no royal assent!

Individual states can also create their own law through common law and statute ChinaTraditionally based on social relationships such as control, order, justice and sincerity.

Modernisation Has led to new law being created in order to bring the legal system up to the same level as other countries Piece meal Mediation committees Trial periods

ShariaSharia Law (Islamic Law) Based on the religion of Islam It is ordained by Allah as guidance for mankind The path to be followed It is not based in one nation but the law of Muslims regardless of where they live

ShariaIt is essentially in two parts 1. Religion - Setting out rules on praying and fasting 2. Judicial process - such as the administration of law including the rules on the use of evidence

Its main focus Family law (rules on marriage, divorce, children, inheritance) Rules on food or drink Peace and war Penal punishments Financial operations Business operation

Main principlesThe main principles are Law is divine The divine way Harmony Allah

ShariaThe belief is Sharia Law provides physical and spiritual wellbeing.Five broad categories (five pillars of Islam) which govern actions. The five pillars are:ObligatoryMeritoriousPermissibleReprehensible forbidden. International LawInternational Legal Relations Deals with the relationships between nations and between individuals and various organisations in different states Two types 1. Public law

Agreements between nations Conventions Treaties International customary law 2. Private law

Considers how a nations law can regulate the international dealings of its individuals ConflictSometimes there is conflict between individuals as the law of each nation will apply:Answer Regulations and International Practices e.g.International Standardisation OrganisationInternational Federation of AccountantsQuick TestWhich one of the following is not in the five categories of action recognised as the Five Pillars of Islam? A Permissible B Reprehensible C Meritorious D Tolerated Quick TestQuestion 33 Which one of the following areas of law is not codified in France? CBA Model Question Paper C05 Page 11 A Contract Law B Employment Law C Company Law D Tort