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Published: Fri, 02 Feb 2018
Order of precedence between uk statute and eu
With references to case law (LAW REPORTS) and statute (CREATES NEW LAW), write a report explaining:
The order of precedence between common law, equity, UK statute and EU law;
UK statute is the law made by Parliament and is the primary legislation of the United Kingdom. It covers most parts of the legal system however various areas of law are overseen by Common Law. The statues consist of bills both private and public, it is written in a formal document and codified into law.
The relationship between statute law and common law is that fact that statutes are not generally entirely comprehensive and self-supporting. Statutes do not purport to cover all possible circumstances, or all possible considerations that may be relevant in deciding a particular case. Common law is therefore crucial to understanding and applying statute law.
When a judge hears and decides individual cases they apply and interoperate both UK statute and common law. However when Common law varies with UK statute, the Statute law will overrule.
Common Law is made by judges and developed through the principle of binding precedent and the decisions of the courts. It is a legal precedent that is made by judges within a court. The system gives precedential weight to Common law on the principle that it is unjust to treat similar facts in a different way on varying occasions.
Equity law is a legal set of principles where the petitions addressed to the chancellor and are designed to complement Common law. It allows courts to a certain degree of flexibility and justice that sometimes lacks due to Common Law’s rigidity.
EU law is the law and court judgements which operated in conjunction with the legal systems of the European Union states, which it affects. Where a conflict occurs EU Law would take precedence over the National Law and these laws are binding on national authorities. As the UK is a member state within the EU, the EU’s law is hence a part of UK law. The European Court would override the UK courts on appeals on areas of law which the EU has passed legislation.
With references to case law (LAW REPORTS) and statute (CREATES NEW LAW), write a report explaining:
(ii) The concept and application of binding precedent between the High Court, Court of Appeal and Supreme Court.
Binding precedent is created by the decision of a higher court, a practice that is followed by the courts beneath the Supreme Court under the Common Law Legal System.
The Supreme Court (previously the House of Lords) is the highest appeal court in the English Legal system and its decisions bind the lower courts. Beneath this is The Court of Appeal which is a central court and hears most of the appeals within England, consisting of two divisions, the Civil and Criminal. The High Court is England’s most civil court of first instance. It is also comprised of divisions, the Queen’s Bench division which deals with common law civil action, the Family division and the Chancery division.
All the courts follow the previous decisions of the higher courts in cases which are similar to the ones being questioned and previously decided. For example a decision made by the Court of Appeal binds on the courts below it but not the Supreme Court which is higher. In civil cases the Court of Appeal receives appeals from the High Court and in Criminal Cases appeals essentially sit with the Crown Court. Therefore a decision made by the most authoritative court, the Supreme Court, is binding upon all of the courts, which are beneath it.
Cases reach the higher, appellate courts by reason of their being taken there on appeal by the party to the dispute who loses in the court below.
“reaffirming the previous position by providing that the supreme court of England and Wales shall consist of the Court of Appeal, High Court of Justice and the Crown Court, and that the Lord Chancellor shall be the President of the Supreme court” – Smith & Keenan
Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy.
There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. ‘A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law’.
Judges are bound by the law of binding precedents in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges’ decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:
The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
Whether the facts of the current case come within in the scope the principle of law in previous decisions.
There are advantages and disadvantages of binding precedent. The advantages include: certainty, consistency, preciseness, and time-saving. The disadvantages include: rigidity, complexity, illogical reasoning (the differences between some cases may be very small and appear illogical), and slow to grow (some areas of the law are unclear or in need of reform).
Analyse each stage.
Decide, referring to relevant cases, which stage if eg invitation to treat, offer, acceptance, formation of a contract.
Once decided if a contract has been formed….advise on remesies.
A contract consists of an agreement (the offer and acceptance of an offer,) the intention to create legal relations and the valuable considerations. In some situations a verbal agreements between parties can be a legally binding contract, however in cases for example the sale of property, contracts and agreements must be made in writing.
In the case we are given ‘Harbour Hotel telephones Designer Developers to let them know that they had been successful’ which is a legal contract. Having made this contract Harbour Hotel owes a duty of care to Design Developers and could hence take Harbour Hotel to court. (DUTY OF CARE…) Although without written terms and conditions it may be difficult to prove their case.
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. Its origins can be found in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.
Generally, a duty of care arises where one individual or group undertakes an activity which could reasonably harm another, either physically, mentally, or economically. This includes common activities such as driving (where physical injury may occur), as well as specialised activities such as dispensing reliant economic advice (where economic loss may occur). Where an individual has not created a situation which may cause harm, no duty of care exists to warn others of dangerous situations or prevent harm occurring to them; such acts are known as pure omissions, and liability may only arise where a prior special relationship exists to necessitate them.
Write a report (providing the basic facts, law and the outcome) of Donoghue v Stevenson (1932.)
Facts of the case
Legal issues arising in the case
Decisions of case
In 1932 a friend of Donoghue ordered her a bottle of ginger beer in a café. The glass bottle was opaque and the contents of the bottle were not able to be seen. The proprietor opened the ginger beer and poured some of the contents into a tumbler which also contained ice cream and the appellant (Donoghue) drank some of the drink. As her friend continued pouring the remainder of ginger beer into the tumbler the remains of a decomposed snail poured out of the bottle. The appellant had already consumed part of the impure ginger beer and later suffered from shock and gastric illness. In an action by her for negligence against the manufacturer of the ginger beer.
As her friend had paid, there was an important legal issue to consider. Mrs Donoghue was owed no contractural duty because she did not buy the drink herself. The case eventually went to the HL on the issue of whether a manufacturer could owe a duty in tort to a consumer who did not buy the goods.
On 9th April, 1929 Donoghue took action against David Stevenson the manufacturer in Paisley. ‘She sued on the ground that he owed customers in her position a duty to cusure that such contamination did not occur, and she therefore had the right to compensation in respect of her illness.’ She claimed £5000 damages for the injuries sustained by her drinking the drink which was manufactured by his company.
The House of Lords which dealt with the preliminary matter was later settled out of court therefore the full details were not heard in court. Donoghue’s friend is unknown but is refered to as ‘she’in the case reports. There are other unknown factors, including wheather the animal actually existed and if it did was it a snail or slug, whether the bottle contained ginger beer or another drink and whether the drink was part of an ice – cream soda.
“she sued the manufacturer of the ginger beer, steveson, on the ground that he owed customers in her position a duty to ensure that such contamination did not occur, and she therefore had the right to compensation in respect of her illness. Outside the law of contract (there was no contract entered into by the laintiff in this case) there was no clear ground on which such a legal action, in the tort of negligence, could be brought. The court decided that on these facts there was a good cause of action which might be brought against the manufacturer. It is not possible to give a firm answer. The decision was made that the manufacture owes a duty to the ultimate consumer was asserting a claim of a right against a manufacturer.
The manufacturer owes a legal duty of care towards the ultimate consumer of those goods, assuming that there has been no reasonable opportunity for them to have been interfered with in the transition from factory to consumer.
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