TYPICAL EXAM QUESTIONS

SOURCE LAW

1. Identify and explain three features of case law (9).

2. Discuss three disadvantages of case law(6)

3. Case Law is a source of law. Identify and discuss two advantages and two disadvantages of

case law.(10)

4. There are three established rules which are applied by the courts when they are to interpret

a statute. Explain each of the following, making reference to relevant case law:

a) Literal rule(5)

b) Golden rule(6)

c) Mischief rule(4)

5. What is the doctrine of precedent?(3)

6. Explain how the doctrine works precedent works in practice, relating your answer to the

English Legal System and case law.(10)

7. Explain the meaning and effect of delegated legislation, highlighting its advantages and

disadvantages. Then elaborate on how parliament and the courts control it. Your answer

should be supported by appropriate examples throughout.(15)

8. Explain what is meant by:

a) Consolidation of law

b) Codification of Law

COMPANY LAW

1. Explain in context what is meant by the following terminology:

a) Directors of a company.(9)

b) Veil of Incorporation(6)

c) Meetings of a Company(6)

d) The winding up of a Company.

2. Identify and discuss circumstances where the corporate veil may be lifted under the

companies Act and the Insolvency Act(15)

3. Preferably making reference to the Insolvency Act 1986(2000),explain what happens when

the decision is taken to place a company into.

a) A creditors’ voluntary liquidation(6)

b) A members’ voluntary liquidation(7)

4. The liquidation process is mainly governed by the Insolvency Act 1986.Explain the following:

a) The role of a liquidator following his/her appointment.(6)

b) The duties/powers of a liquidator following his appointment(6)

6. Who may apply for an Administration Order under the Insolvency Act 1986(2)

7. Identify the main effects on a company of a court granting an Administration Order(4)

8. Explain the term “Fraudulent trading” and identify who can be found guilty of it and the

consequences of being found guilty.(6)

9. Explain the term “Wrongful Trading” and identify who can be found guilty of it and the

consequences of being found liable.

10. Explain and distinguish between the following three different types of meeting which can

take place within companies:

a) An Annual General Meeting (AGM)(5)

b) An Extraordinary General Meeting (EGM)(3)

c) A Class Meeting(CM)(2)

11. Shares confer a bundle of rights. Discuss (13)

12. Discuss how the validity of the amendment of the Articles of Association would be

determined by the Court, making reference to the Companies Act 1985 along with any

relevant common law rules.

13. Identify and describe five matters that are regulated under Articles of Association when

forming a Company (10)

14. Describe what is meant by the “ Doctrine of Separate Corporate Personality “ and “Lifting

the Corporate Veil” in Company Law.

15.All companies must have Directors.Explain the main powers and duties they must

perform(15)

AGENCY

1. Explain what is meant by the term “agency” and briefly describe what an agent does.(5)

2. Identify and explain five duties which an agent owes towards his principal(10)

3. Explain whether a principal can successfully sue an agent for secret commission obtained by

agent from third parties in the discharge of the transaction authorised by principal(5)

4. Explain what is meant by the ratification of an agent’s act and comment on the various

conditions and circumstances.(10)

5. Explain how agency can be created by ratification(10)

6. Outline the different types of agents

7. Identify and discuss:

a) The duties which an agent owes towards his principal.(14)

b) The different ways in which an agency relationship can be terminated.(11)

8. Briefly explain the agency of necessity(5)

PARTNERSHIP

1. What constitutes a partnership under this Act ?(2)

2. Explain the three fiduciary duties of each partner in a partnership.(5)

3. Explain the idea of apparent authority of partners to act as agents for their firm and to bind

the firm by their acts.(5)

4. Explain the Statutory rights that belong to all partners of a firm(9)

5. Explain the grounds on which one partner may apply to the Court for a dissolution order

under the Partnership Act(9)

6. How do you know when a business may be treated as a Partnership and therefore subject to

the provision of the Partnership Act.

EMPLOYMENT LAW

1. Explain the differences between contracts “contracts of service” and “contracts for

service” in employment law.(10)

2. Outline the tests courts use to decide whether someone is an employee or self-employed.

3. For an employer there are legal and economic consequences which follow from finding that

his worker is an employee in reality, and there therefore employed under a contract of

service rather a contract of service.

Explain these legal and economic consequences (15)

4. In relation to Health and Safety Law, the standard of care required of an employer under the

common law, extends only to protection, against “reasonably foreseeable” risks to those

workers who are their employees. Therefore an employer will only be liable to pay for

damages in those cases where there has been some lack of care on his part,and he has failed

to foresee a type of harm which was “reasonably foreseeable”.

Discuss this statement together with the three fold nature of the duty to:

a) Provide safe plant and machinery

b) Provide a safe system of work;and

c) Provide reasonably competent employees.

(10 marks)

5. Explain why an employer would want a court to decide that a worker was employed under

a contract for services as opposed to a contract of service.(4)

6. Under the common law, an employer owes implied duties to his employees. Explain each of

these duties, which are listed below:

a) To pay reasonable remuneration.(3)

b) To indemnify his employees for expenses incurred in the course of their employment(3)

c) To maintain mutual trust and confidence ie the employer has a duty not to behave in

such a way so as to damage the relationship of trust and confidence between him and

her employees.

CONTRACT

1. Identify and explain, using ,case examples, what is meant by

a) An Offer(6)

b) An invitation to treat.(8)

2. Explain the four equitable remedies of a breach of contract.(25)

3. Using examples, explain the following terms in relation to contracts:

a) Conditions(10)

b) Warranties(9)

c) Innominate terms(5)

4. Explain each of the following ways by which a contract may be discharged:

a) Discharge by Performance.(15)

b) Discharge by Breach(including anticipatory breach).(6)

c) Discharge by agreement.(4)

5. Outline the five rules regarding communication of acceptance.

6. Explain what is meant by the term “consideration” under Contract Law.(5)

7. Explain the three main principles of governing consideration.(10)

8. Under the Law of Contract, a contract will be discharged by frustration where the

obligations under it have become subsequently impossible to perform due to the fault of

neither party

Apply the relevant law to the following two situations in order to determine whether or not

the contracts have been frustrated:

a) A contract involving the letting out of a manor house for a Wedding Reception and the

manor is destroyed by fire a week before the wedding(5)

b) A contract involving the rental of a room overlooking a famous international tennis

ground, which has been hired out on this occasion for the purpose of watching the

annual international tennis. The competition is subsequently cancelled due to bad

weather conditions

c) A Claimant cannot recover any losses where they could have avoided incurring the m by

taking reasonable steps to mitigate the losses concerned(8)

d) A claimant cannot recover any losses where they could have avoided incurring them by

taking reasonable steps to mitigate the loss concerned.Discuss.(5)

9. Explain the meaning and effect of the doctrine of privity in relation to the law of contract.

10. Explain the minimum requirements for the formation of a contract.(17)

11. Explain what is meant by “ joint” and “several” liability in contract law(12)

CASE LAW: WHAT IS CASE LAW CASE LAW IS A BODY OF LAW BUILT UP ON RECORDED COURT DECISIONS.

THESE RECORDED COURT DECISIONS ARE CALLED PRECEDENTS

(PREVIOUS COURT DECISIONS).

PRECEDENTS ARE THOSE PREVIOUS DECISIONS OF JUDGES WHICH ARE AUTHORITATIVE AND BINDING.

CASE LAW IS ALSO REFERRED TO JUDICIARY LAW; JUDICIAL PRECEDENTS;

PRECEDENT SYSTEM; ADJUDICATION;

BUT IN ALL CASES THE TERM REFERS TO THE RULE OF CONDUCT ENSHRINED IN A COURT DECISION OR JUDGMENT OF A JUDGE, OR JUDGES.

ADVANTAGES AND DISADVANTAGES OF CASE LAW

IT IS KNOWN LAW, AVAILABLE FOR ALL WHO CARE TO STUDY IT

IT IS A SOPHISTICATED PATTERN OF LAW, COVERING A MULTIPLICITY OF SITUATIONS, CIRCUMSTANCES AND FACTS OF THE CASE.HENCE IT TENDS TO BE PRECISE

IT REDUCES LITIGATION, BECAUSE IT IS OFTEN PREDICTABLE AND CERTAIN WHAT THE RESULT WILL BE- A LAWYER CAN SAY TO A CLIENT: “I ADVISE YOU NOT TO PROCEED SINCE YOUR CHANCES OF SUCCESS ARE SMALL”

IT IS ADMINISTRATIVELY CONVENIENT-SINCE MANY BODIES SUCH AS MERA,MACRA, MRA CAN SAY FOLLOW M V P TO THEIR STAFF AND KNOW THAT THE COURTS WILL SUPPORT THEM. BECAUSE OF ITS BINDING NATURE, PEOPLE CAN REGULATE THEIR CONDUCT WITH CONFIDENCE IN ITS CERTAINTY

CASE LAW IS PRACTICAL AND CONCRETE; IT IS NOT THE RESULT OF ACADEMIC THEORISING, BUT OF ACTUAL EVERYDAY DIFFICULTIES.

IT IS MORE FLEXIBLE THAN LEGISLATION SINCE DECISIONS CAN BE OVERRULED

IT IS MORE EASILY AND QUICKLY MADE THAN LEGISLATION, AND THIS IS PARTICULARLY IMPORTANT WHERE ADAPTATION OF THE LAW TO MINUTE DIFFERENCES OF CIRCUMSTANCES IS REQUIRED.

IT ACTS AS THE BEST PREPARATION FOR STATUTE LAW. CODIFICATIONS SUCH AS THE SALE OF GOODS ACT 1979AND THE BILLS OF EXCHANGE ACT 1882ARE THE OUTCOME OF JUDICIAL DECISIONS, AND ARE MODELS OF STATUTE LAW.

ITS DETAIL IS MUCH RICHER THAN ANY CODE OF LAW (BUT AGAINST THIS MUST BE SET ITS COMPLEXITY).

UNLIKE STATUTE LAW, THERE IS HARMONY BETWEEN NEW PRECEDENTS AND EXISTING LAW, WHICH GROW CONCURRENTLY.

THE DISADVANTAGES CAN BE LISTED AS FOLLOWS.

IT IS NOT MADE BY THE COMMUNITY BUT BY THE JUDGES. THE JUDGES ARE STRICTLY IMPARTIAL AND HIGHLY EXPERT –PROBABLY MORE SO THAN A BODY OF LEGISLATORS.

IT IS ENORMOUSLY COMPLEX , VOLUMINOUS AND DIFFICULT TO HANDLE.

IT PERPETUATES WRONG DECISIONS-UNTIL SOMEONE COURAGEOUS OR WEALTHY ENOUGH RISKS AN APPEAL-WHEN A WHOLE BODY OF CASES WILL BE OVERTHROWN WHICH ARE SHOWN TO HAVE BEEN WRONGLY DECIDED.

CASE LAW IS OFTEN CRITICISED AS BEING RETROSPECTIVE IN EFFECT OR "EX POST FACTO". A DECISION MAY UPSET LONG-STANDING INTERESTS BY ITS RETROSPECTIVE OPERATION.

FINALLY, IT IS DIFFICULT TO DISENTANGLE THAT PART OF THE JUDICIAL DECISION WHICH IS STRICTLY A BINDING SOURCE OF LAW (THE RATIO DECIDENDI) FROM "THINGS SAID BY THE WAY", I.E. OBITER DICTA.

WHAT IS THE PRECEDENT SYSYTEM(3 MARKS)

THE PRECEDENT SYSYTEM OR DOCTRINE OF STARE DECISIS(TO STAND BY PREVIOUS JUDGMENTS) MEANS THAT A COURT HAS TO STAND BY PREVIOUS JUDGMENTS.

IT MEANS THAT IF A COURT HAS GIVEN A CERTAIN DECISION, THAT

COURT AND OTHER COURTS BELOW IT MUST ,IN THE FUTURE. GIVE THE SAME DECISION

THIS MEANS THAT COURTS ARE ALWAYS BOUND BY DECISIONS OF HIGHER

COURTS, AND SOMETIMES BY THOSE OF COURTS OF EQUAL STATUS.

EXPLAIN HOW THE DOCRINE OF PRECEDENT WORKS IN PRACTICE,RELATING YOUR ANSWER TO THE ENGLISH LEGAL SYSTEM AND CASE LAW (10 MARKS) What Are The Classifications Of Precedents PRECEDENTS CAN BE CONVENIENTLY DIVIDED INTO FIVE CLASSES, ACCORDING TO THE NATURE OF THEIR BINDING FORCE. (A)AUTHORITATIVE OR ABSOLUTELY BINDING PRECEDENT:

MUST BE FOLLOWED WITHOUT QUESTION.

(B)CONDITIONALLY BINDING PRECEDENT THIS IS PRECEDENT FROM A COURT OF EQUAL STATUS.

(C)PERSUASIVE PRECEDENT

THERE IS NO OBLIGATION TO FOLLOW THEM. ONE WHICH A JUDGE NEED NOT FOLLOW BUT WHICH IN FACT HE

OR SHE SHOULD HESITATE TO DISREGARD

EXAMPLES OF SUCH PRECEDENTS ARE: THE DECISIONS OF INFERIOR COURTS ON SUPERIOR COURTS

FOREIGN JUDGMENTS

D)DECLARATORY AND ORIGINAL PRECEDENTS DECLARATORY PRECEDENTS MERELY DECLARE THE EXISTING LAW ORIGINAL PRECEDENTS APPLY A NEW RULE THEREBY CREATING OR

MAKE NEW LAW. PRECEDENTS ARE DECLARATORY AS BEING EVIDENCE OF OLD LAW, PRECEDENTS ARE ORIGINAL AS SOURCES OF NEW LAW.

(E)EXTENDING AND "DISTINGUISHING" PRECEDENTS JUDGES CAN MODIFY THE EFFECTS OF AUTHORITATIVE OR ABSOLUTELY BINDING PRECEDENTS IN TWO WAYS

BY "EXTENDING" THE EFFECT OF A DECISION OF WHICH THEY APPROVE,

BY "DISTINGUISHING" PRECEDENTS OF WHICH THEY DISAPPROVE. What Are Three Requirements For Operation Of The Doctrine Of Precedent A JUDGE IS OBLIGED TO DECIDE THE CASE BEFORE HIM/HER BY REFERENCE TO A PREVIOUS DECISION WHEN TWO CONDITIONS FOR THE OPERATION OF THE DOCTRINE OF PRECEDENT ARE SATISFIED: THESE ARE THAT

THE PREVIOUS DECISION MUST BE RELEVANT TO THE DETERMINATION OF AN ISSUE OF LAW IN THE CASE IN QUESTION,

A HIERARCHY OF COURTS: THE PRIOR COURT'S DECISIONS MUST COME FROM A COURT THAT IS SUPERIOR IN THE HIERARCHY.

AN EFFECTIVE SYSTEM OF LAW REPORTAGE: The system of case law, depends on there being available accurate reports of all the important decisions of the superior courts.

In Connection With The Precedent System, The Following Two Concepts Must Be

Distinguished:

1. RATIO DECIDENDI:

THIS IS THE REASON FOR THE JUDGMENT.ONLY THIS PART OF THE

JUDGMENT IS BINDING

IT IS THE RULE OR STATEMENT OF LAW CONTAINED IN THE

JUDGMENT-THE REASON FOR THE DECISION-

IT IS THE PART THAT CONSTITUTES THE PRINCIPLE BEHIND THE CASE-

AND IT IS THE LEGAL PRINCIPLE THAT MUST BE FOLLOWED

“THE REASON FOR THE JUDICIAL OUTCOME”

THE LEGAL PRINCIPLE WHICH IS THE BASIS ON WHICH THE JUDGE ARRIVED AT THE FINAL DECISION.

THE PRINCIPLE OF LAW ON WHICH THE DECISION OF A JUDGE IS BASED

THE REASON FOR THE FORMATION OF FINAL DECISION OF THE COURT

AND THIS IS THE VITAL PART OF THE PRECEDENT.

2. OBITER DICTUM:

THIS IS THE STATEMENT MADE BY THE JUDGE IN PASSING,WHICH IS

NOT STRICTLY RELEVANT BUT STILL HAS GOOD DEAL OF PERSUASIVE

AUTHORITY

OBITER DICTA(THINGS SAID ALONG THE WAY).THESE MAY

ILLUSTRATE THE JUDGE’S TRAIN OF THOUGHT WHEN ARRIVING AT

THE DECISION.

OBITER DICTA, HAVE NO BINDING FORCE BUT HAVE PERSUASIVE OPINION ONLY, THE VALUE OF WHICH DEPENDS UPON THE REPUTATION OF THE JUDGE IN QUESTION. OBITER DICTA PRONOUNCED

BY JUDGES IN THE HOUSE OF LORDS/SUPREME COURT, FOR EXAMPLE, CARRY GREAT PERSUASIVE AUTHORITY.

What Are The Three Functions Of The Doctrine Of Precedent THE FUNCTION OF CASE LAW IS

TO ACHIEVE UNIFORMITY IN APPLICATION OF LEGAL RULES TO ENSURE A GREATER MEASURE OF LEGAL CERTAINTY(SURENESS) TO DEVELOP AND ADAPT LAW TO CHANGING NEEDS OF SOCIETY.

What Does The Term To Distinguish A Precedent Mean? A PRECEDENT IS SAID TO BE "DISTINGUISHED" WHEN THE COURT SITTING TO DECIDE A LATER CASE FINDS THAT THE FACTS OF THE CASE BEFORE IT ARE SUFFICIENTLY DIFFERENT FROM THOSE OF THE ORIGINAL PRECEDENT TO MAKE THE PRECEDENT INAPPLICABLE What Is The Effect Of Distinguishing ? THE EFFECT OF "DISTINGUISHING" IS THAT A PRECEDENT MAY NOT CONTINUE TO BE BINDING INDEFINITELY. What does the term extension of a Preecedent mean

CONVERSELY, WHEN A PRECEDENT IS REGARDED BY LAWYERS AS BEING DESIRABLE AND BENEFICIAL IN ITS EFFECT, JUDGES MAY BE PERSUADED TO ENLARGE ITS APPLICATION AS FAR AS POSSIBLE, BY EXTENDING THE PRINCIPLE CONCERNED TO CASES WHERE THE FACTS ARE NOT STRICTLY SIMILAR. EXTENSION- WHERE THERE IS NO EXISTING PRECEDENT.THEY MUST EXTEND THE EXISTING LAW TO COVER THE NEW SITUATION Marks & Spencer V. One In A Million (1998), And R V. Human Fertilisation & Embryology Authority Ex Parte Blood (1997).

What Are The Three Ways By Which A Precedent Can Stop Being Followed Apart From Distinguishing The Precedent? A PRECEDENT CAN ALSO CEASE TO BE BINDING AND A JUDGE CAN REFUSE TO FOLLOW IT AS A RESULT OF THE FOLLOWING.

REVERSAL–THE DECISION OF THE CASE IS REVERSED ON APPEAL BECAUSE THE APPEAL COURT DISAGREES WITH THE PRINCIPLE LAID DOWN BY THE LOWER COURT AND FINDS FOR THE OTHER PARTY.

OVERRULING–WHERE SIMILAR FACTS COME BEFORE THE COURT IN A LATER CASE, THEN THE HIGHER COURT MAY DECIDE THE CASE ON A DIFFERENT LEGAL PRINCIPLE, THUS "OVERRULING" THE PREVIOUS PRECEDENT. A PRECEDENT MAY ALSO BE OVERRULED BY A SUBSEQUENT STATUTORY PROVISION WHICH REVERSES ITS EFFECT.

DISAPPROVAL – WHERE A HIGHER COURT IN A JUDGMENT EXPRESSES DOUBTS ABOUT THE VALIDITY OF A PREVIOUS RULE BUT DOES NOT EXPRESSLY OVERRULE IT.

There are three established rules which are applied by the courts when they are to interpret a

statute. Explain each of the following, making reference to relevant case law:

d) Literal rule(5)

e) Golden rule(6)

f) Mischief rule(4)

LITERAL RULE:WHAT DOES THE LITERAL RULE SAY?

THAT JUDGES MUST ASCERTAIN THE INTENTION OF PARLIAMENT SOLELY FROM THE WORDS OF THE STATUTE ALONE.

APPLICATION OF THE LITERAL RULE INVOLVES INTERPRETING A STATUTE LITERALLY, ACCORDING TO ITS ORDINARY PLAIN MEANING.

THE BASIS OF THE LITERAL RULE IS THAT THE INTENTION OF PARLIAMENT IS TO BE FOUND IN THE NATURAL MEANING OF THE WORDS OF THE STATUTE.

WHERE THE WORDS OF AN ACT ARE CLEAR THEY WILL BE APPLIED ACCORDING TO THEIR ORDINARY ,NATURAL AND PLAIN MEANING

THE COURTS WILL ASSUME THAT WORDS HAVE THEIR ORDINARY GRAMMATICAL MEANING, UNLESS THE ACT MAKES IT CLEAR THAT A SPECIALIST MEANING WAS MEANT.

USING THIS APPROACH ONE MUST TRY AND FIND WHAT PARLIAMENT INTENDED BY TAKING THE ORDINARY, NATURAL AND LITERAL MEANING OF THE STATUTE

NOTE, HOWEVER THAT THE LITERAL MEANING OF THE WORDS IS NEVER ALLOWED TO PREVAIL WHERE IT WOULD PRODUCE MANIFEST ABSURDITY OR CONSEQUENCES WHICH WOULD NEVER HAVE BEEN INTENDED BY THE LEGISLATURE(LORD DENNING IN COROCRAFT V PAN AMERICAN AIRWAYS(1969)

Fisher v. Bell (1960),the phrase "offer for sale" was to be taken literally, in accordance with its meaning in contract law and that the defendant's display of the weapon was no more than an invitation to treat

In Re Rowland (1962),a will leaving everything to his wife, but "if her death precedes or coincides with mine" then to his brother. "coincide" should be given the meaning that the dead man must have intended: "on the same occasion", or something like that.

GOLDEN RULE: WHAT DOES THE GOLDEN RULE SAY?

THE GOLDEN RULE IS APPLIED IF THE APPLICATION OF THE LITERAL RULE WOULD RESULT IN AN ABSURD(UNREASONABLE) INTERPRETATION

GOLDEN RULE ALLOWS FOR MODIFICATION OF MEANING WHERE LITERAL MEANING LEADS TO ABSURD RESULTS

THIS RULE IS REALLY TO BE READ IN CONJUNCTION WITH THE LITERAL RULE, AND ITS EFFECT IS BEST explained by PARK B IN BECKE V SMITH(1836)“IT IS VERY USEFUL IN THE CONSTRUCTION OF A STATUTE TO ADHERE(STICK TO) TO THE ORDINARY GRAMMATICAL MEANING OF WORDS, UNLESS THIS DIFFERS FROM THE INTENTION OF THE LEGISLATURE TO BE COLLECTED FROM THE STATUTE ITSELF, OR LEADS TO MANIFEST ABSURDITY.IN WHICH CASE THE LANGUAGE MUST BE MODIFIED.”

LORD WENSLEYDALE IN GREY V. PEARSON (1857): "THE GRAMMATICAL AND ORDINARY SENSE OF THE WORDS IS TO BE ADHERED TO UNLESS THAT WOULD LEAD TO AN ABSURDITY OR REPUGNANCY OR INCONSISTENCY WITH THE REST OF THE INSTRUMENT, IN WHICH CASE THE GRAMMATICAL OR ORDINARY SENSE OF THE WORDS MAY BE MODIFIED SO AS TO AVOID SUCH ABSURDITY, REPUGNANCY OR INCONSISTENCY AND NO FURTHER."

IN CASES WHERE THE LITERAL INTERPRETATION OF A STATUTE LEADS TO AN ABSURDITY, MODIFICATIONS ARE CAREFULLY MADE IN ORDER TO DETERMINE TO A MORE CONVENIENT MEANING OF THE WORDS CONTAINED IN AN ACT OF PARLIAMENT

THE COURTS WILL NOT INTERPRET AN ACT IN ITS ORDINARY GRAMMATICAL MEANING AND SENSE, IF THIS LEADS TO MANIFEST ABSURDITY OR INCONSISTENCY WITHIN THE STATUTE ITSELF.

WORDS WILL NOT BE INTERPRETED LITERALLY IF THIS WILL LEAD TO ABSURDITY(UNREASONABLENESS) OR TO INCONSISTENCY WITH THE REST OF THE STATUTE

BY THE GOLDEN RULE THE COURT MAY MODIFY THE LANGUAGE USED SO FAR AS IS NECESSARY TO AVOID INCONVENIENCE.

In Adler v. George (1964),a protester was convicted by magistrates of obstructing a

sentry "in the vicinity of a prohibited place", contrary to Section 3 of the Official Secrets Act 1920. He appealed on the grounds that, since he was actually inside the prohibited place at the time, he could not be in its vicinity. The Divisional Court

dismissed his appeal.The words "in the vicinity of" should be construed as meaning "in or in the vicinity of".

MISCHIEF RULE:WHAT DOES THE MISCHIEF RULE SAY?

THIS APPROACH TO INTERPRETATION ASKS THE QUESTION: WHAT

WAS THE MISCHIEF OR WRONG OR PROBLEM WHICH THE LAW

INTENDED TO CURE/REMEDY?

THE MISCHIEF RULE AIMS TO DEFINE THE PROBLEM THAT A

PARTICULAR ACT OF PARLIAMENT WAS MEANT TO REMEDY.

ANY INTERPRETATION MUST, THEREFORE BE AIMED AT PREVENTING

THE MISCHIEF THAT WAS THERE BEFORE THE ACT WAS PASSED

THE RULE ORIGINATED IN HEYDON'S CASE (1584)AND OPERATES AS A

LIMITED EXCEPTION TO THE IT WAS HELD IN HEYDON'S CASE THAT A

JUDGE SHOULD CONSIDER FOUR THINGS: IN APPLYING THIS APPROACH

,FOUR QUESTIONS ARE ASKED: -WHAT WAS THE LAW BEFORE THE MAKING OF THE ACT?

-WHAT WAS THE MISCHIEF AND DEFECT FOR WHICH THE LAW DID NOT PROVIDE

-WHAT REMEDY HAS PARLIAMENT PROPOSED IN THE ACT TO CURE THE DEFECT IN

THE LAW

-THE TRUE REASON FOR THE REMEDY

FOR EXAMPLE ,IF A LAW WAS PASSED TO PREVENT PROPERTY GRABBING,PROSTITUTION,VAGABONDING ,INTERPRETATION USING THIS APPROACH MUST BE AIMED AT PREVENTING PROPERTY GRABBING

IF WE SEEK THE INTENTION OF PARLIAMENT

-WE SEEK TO DISCOVER THE MISCHIEF IN COMMON LAW /STATUTES

WHICH PARLIAMENT WISHED TO CORRECT.

-WE THEN ASK “WHAT REMEDY WILL CURE THE MISCHIEF?” .

-WE THEN INTERPRET THE ACT IN SUCH A WAY AS TO DEFEAT THE

MISCHIEF AND ADVANCE THE REMEDY

THE PRINCIPLE IS AS FOLLOWS: WHERE THE WORDS ARE AMBIGUOUS

OR UNCERTAIN THE STATUTE MAY BE CONSTRUED ACCORDING TO

ITS PURPOSE OR POLICY.THIS RULE ENABLES THE COURT TO

SUPPRESS THE MISCHIEF AND ADVANCE THE REMEDY

In Smith v Hughes(1960)a number of prostitutes (the defendants) were charged with soliciting "in a street or public place" contrary to Section 1(1) of the Street Offences Act 1959. One had been on a balcony above the street and others had been sitting behind open or closed windows at first-floor level. The Court focused on the mischief the Act was intended to prevent and not on whether the ladies were in a “street or public place”

EXPLAIN THE MEANING AND EFFECT OF DELEGATED LEGISLATION, HIGHLIGHTING ITS

ADVANTAGES AND DISADVANTAGES. THEN ELABORATE ON HOW PARLIAMENT AND THE COURTS

CONTROL IT. YOUR ANSWER SHOULD BE SUPPORTED BY APPROPRIATE EXAMPLES

THROUGHOUT.(15)

Definition

IT IS LEGISLATION MADE BY OTHER BODIES OTHER THAN THE

PARLIAMENT ITSELF, SUCH AS MINISTRIES, LOCAL AUTHORITIES

UNDER THE GENERAL AUTHORITY OF AN ACT OF PARLIAMENT.

DELEGATED LEGISLATION REFERS TO THE EXERCISE OF A LEGISLATIVE POWER, GRANTED ULTIMATELY BY PARLIAMENT, BY A SUBORDINATE BODY SUCH AS A LOCAL AUTHORITY, A PUBLIC CORPORATION, THE SUPREME COURT, OR A UNIVERSITY.

IT IS OFTEN CALLED SUBORDINATE LEGISLATION BECAUSE OF ITS

LOWER RANKING

WHAT ARE THE CHIEF FORMS OF DELEGATED LEGISLATION?

(A) ROYAL ORDERS PRESIDENTIAL ORDERS PARTICULARLY IN TIMES OF NATIONAL EMERGENCY. SEE, FOR INSTANCE, MEASURES TO DEAL WITH THE FOOT AND MOUTH MEASLESOUTBREAK, OR SWINE/BIRD ‘FLU MEASURES.

(B) MINISTERIAL ORDERS AND DEPARTMENTAL LEGISLATION THESE CONSIST OF THE ISSUE OF ORDERS AND REGULATIONS BY MINISTERS OR BY GOVERNMENT DEPARTMENTS UNDER POWERS CONFERRED ON THEM BY STATUTE. THIS TYPE OF LEGISLATION TAKES A NUMBER OF FORMS OF WHICH THE FOLLOWING ARE EXAMPLES:

MANY STATUTES MERELY LAY DOWN THEIR PURPOSE IN GENERAL TERMS. THE DETAILS ARE FILLED IN BY ORDERS ISSUED BY THE MINISTER.

IN OTHER CASES, THE MINISTER IS GIVEN POWER TO MAKE ORDERS IN REGARD TO THE SUBJECT MATTER OF THE STATUTE OR TO VARY OR EVEN REPEAL THE EXPRESSED PROVISIONS OF THE ACT.

(C) BYLAWS OF LOCAL AUTHORITIES AND OTHER PUBLIC BODIES

LOCAL AUTHORITIES HAVE GENERAL POWER TO MAKE BYLAWS, WHICH AFFECT THE ACTIVITIES OF PEOPLE LIVING WITHIN THEIR GEOGRAPHICAL AREA. PUBLIC BODIES HAVE SIMILAR AUTHORITY WITHIN THEIR SPHERES OF OPERATION.

ADVANTAGES

SHEER IMPOSSIBILITY AND LACK OF PARLIAMENTARY TIME TO REGULATE EVERYTHING

TECHNICALITIES:TECHNICAL OR SCIENTIFIC MATTERS ARE OFTEN BETTER DEALT WITH BY EXPERTS EMPLOYED BY THE GOVERNMENT DEPARTMENTS THAN BY MEMBERS OF PARLIAMENT.

URGENCY:IN AN EMERGENCY TO LAY THINGS BEFORE PARLIAMENT .E.G OUTBREAK OF DISEASE OR WAR

GREATER FLEXIBILITY IS PROVIDED FOR UNSEEN CONTINGENCIES AND SUCH LEGISLATION IS OF GREAT VALUE IN AN EMERGENCY, SUCH AS THE OUTBREAK OF WAR.

IT AFFORDS AN OPPORTUNITY FOR EXPERIMENT; IF A MINISTER ISSUES AN ORDER AND IT IS FOUND UNSATISFACTORY, IT CAN BE WITHDRAWN AT ONCE.

DISADVANTAGES

IT MAY LEAD TO ABUSE OF POWER BY BODY ACTING ON BEHALF OF PARLIAMENT

THE EXECUTIVE TENDS TO GET BEYOND THE CONTROL OF THE LEGISLATURE.

IT INTENSIFIES THE TENDENCY TOWARDS BUREAUCRACY.

THERE IS A TENDENCY TOWARDS UNDUE INTERFERENCE WITH THE LIBERTY OF THE SUBJECT.

LACK OF CONSULTATION

INADEQUATE PUBLICITY

DELEGATED LEGISLATION IS ATTACKED AS WEAKENING ONE OF THE PRINCIPLES OF THE RULE OF LAW. THE LAW-MAKING FUNCTION IS REMOVED FROM PARLIAMENT, WHICH IS DIRECTLY ANSWERABLE TO THE ELECTORATE, AND PLACED IN THE HANDS OF UNACCOUNTABLE OFFICIALS, EXCEPT IN THE CASE OF LOCAL AUTHORITY BYLAWS.

HOW IS ABUSE OF POWERS PREVENTED

By a requirement in most Acts to lay statutory instruments on the table in the House of Parliament before implementation

By their examination by the Joint Committee on Statutory Instruments which vets all delegated legislation for both Houses of Parliaments and calls in Ministers or lesser representatives to explain any points

Delegated legislation may be challenged in the courts a s ultra-vires.

EXPLAIN WHAT IS MEANT BY(A)CONSOLIDATION OF LAW(B)CODIFICATION OF LAW(10)

CODIFICATION CODIFICATION IS THE REDUCTION OF A NATION’S LEGAL SYSTEM TO A

SINGLE CODE OF LAWS /STATUTE.

CODIFICATION IS THE REDUCTION AND COMPILATION OF ALL THE LAW (WHETHER STATUTE OR CASE LAW) ON A PARTICULAR SUBJECT INTO A SINGLE COHERENT PIECE OF LEGISLATION,THAT IS ,ONE COMPREHENSIVE CODE/STATUTE , E.G BILLS OF EXCHANGE ACT 1882, THESALE OF GOODS ACT 1979 AND THE THEFT ACT 1968

THE ADVANTAGE OF CODIFICATION IS THAT IT MAKES THE WHOLE OF

THE LAW ON A PARTICULAR SUBJECT MATTER ACCESSIBLE IN A SINGLE STATUTE .

THE DISADVANTAGE OF CODIFICATION IS THAT:

- AFTER CODIFICATION THERE IS A TENDENCY FOR THE LEGISLATURE TO GO TO SLEEP AND THE LAW THEN CEASES TO BE DEVELOPED WITH THE GROWING NEEDS OF THE TIMES. -FURTHERMORE, THERE IS STILL THE DIFFICULTY OF INTERPRETING THE CODE.

CONSOLIDATION

Consolidation of the law is where there are a number of different areas of the law where precedents may be found as a consequence of the application of secondary and primary legislation: secondary legislation is delegated legislation and primary legislation is Acts of Parliament.

The purpose of consolidation is the bringing of all these different sources and pieces of legislation into one coherent statute.eg Rent Act, Trade Union and Labour Relation(Consolidation)Act

Consolidation IS THE REDUCTION OF A NUMBER OF STATUTES INTO ONE SINGLE STATUTE WHICH REPEALS THE FORMER STATUTES, THE CONTENTS OF WHICH HAVE BEEN SO CONSOLIDATED

Consolidation can also occur where there are different authorities and they all brought into one piece of legislation.eg Health and Safety at Work Act 1974,The Employment Protection(Consolidation Act 1974)

K.APPRAISAL OF STATUTELAW ADVANTAGES

STATUTE LAW CAN BOTH MAKE NEW LAW AND ABOLISH OBSOLETE(OUTDATED) OR BAD LAW.

AS IT ORIGINATES FROM A LEGISLATING BODY, SEPARATE AS SUCH FROM THE JUDICIARY AND SUPERIOR TO IT, LAW MAKING IN THIS WAY PROVIDES FOR AN ADVANTAGEOUS DIVISION OF LABOUR.

THE LAW IS KNOWN BEFORE IT IS ENFORCED.

IT IS NOT DEPENDENT ON THE ACCIDENT OF LITIGATION(COURT CASE), BUT CAN COME INTO FORCE AT ANY TIME TO REPAIR A DEFECT IN THE LEGAL SYSTEM, WITHOUT WAITING FOR A CASE TO ARISE ON IT.

STATUTE LAW IS, THEORETICALLY, CLEAR AND EASILY ACCESSIBLE, READY FOR IMMEDIATE USE, AND EMBODIED IN AN AUTHORITATIVE FORMULA.

IT IS LESS BULKY THAN CASE LAW OR PRECEDENTS.

IT CAN SYSTEMATISE, BY INTELLIGIBLE CODIFICATION, THE COMPLEX RULES OF CASE LAW.