The doctrine of binding precedent is an application of a principle known as 'stare decisis', (to stand by the decided). This is the process in which judges use previously decided cases to determine the outcome of a new case, for this to occur the facts within the case must be similar. The decision of a judgement can fall under 'ratio decidendi' (reason for decision) or 'obiter dicta' (something said by the way). The binding precedent is usually found within the ratio decidendi of a case as the ratio decidendi occurs when the judge applies the law to the facts taken from the evidence and then makes a decision. 'Donghue v Stevenson' is a case which is binding on the lower courts as it was the first of its kind to be established.
Civil law cases take place in either the County court or the High court, Civil law deals with ordinary, private and personal matters an example of this is divorce. Criminal law cases take place in the Magistrates court or within the Crown court, Criminal law deals with crime and legal punishments such as murder. The main distinction between civil and criminal law is the purpose of the case, within Civil law the intent of the case is to make the wrongdoer rectify the issue, this can be done by providing compensation whereas in Criminal law the purpose of the case is to punish the wrongdoer and convict them.
In association with statutes the Literal rule is the basis of all court decisions. The Literal rule applies the actual wording of the case to produce an outcome. An example of this is R V Harris (1836). In this case the defendant bit off the nose of the victim however the statute stated that the offence was to 'stab or wound'. Under the literal rule the defendant cannot be convicted as biting does not fall into the statute. An advantage of this is that this rule stops the judges putting any emotion or personal opinion when dealing with the case however this rule can also result in injustice as a statute cannot cover every incident that can occur. The Golden Rule is an adapted from the literal rule, it is used to avoid absurd outcomes, this is because it allows judges to alter any errors made in statutes. Within R V Allen (1872), loopholes were closed to give a just outcome. However, the Golden rule lacks liability as judges are able to change the meaning of words to come out with an outcome which in turn can infringe upon the separation of powers. Lastly the Mischief rule, this is applied to find out what the parliament 'meant' as opposed to the Literal and Golden rule establishing what the parliament 'said'. This does allow judges to interpret statues in light of the changing society, more so as a living document. However, this rule also creates major problems as seen within Smith v Hughes. Overall all three rules have advantages and disadvantages however the Golden rule is the most helpful as it allows the judges to change the meaning of statutes in order to give justice.
An offer occurs when the offeror proposes something to an individual e.g. a Job, if accepted by the offeree this creates a legal binding contract. An invitation to treat is an invite for individuals to make offers. An example is Fisher V Bell (1961), the flick knife on display was an invitation to treat, not an offer.
A counter offer occurs when an offeree responds to an offer by making another offer on different terms, this has the power to dilute the original offer, ensuring that the offeree can no longer accept. This is demonstrated in Normile V Miller (1985).
Both contracts are legal agreements. Unilateral contracts is when only one party (the promisor) makes a promise. The other party only enters the contract after the act has been fulfillled. Within a Bilateral contract (the promisor) and (the promisee) both make a promise to fulfill their parts.
Jonny entered into an expressed oral contract with his manager Ken. Ken made a promise to Jonny to pay him extra wages as he was anxious for his nieces party, therefore according to Currie V Misa (1875) there can be no legal case unless there is consideration in the form of benefit gained and a detriment or a loss to the other party. Here Ken has gained from Jonny working alone paying him one wage instead of having to employ someone temporarily as well as not having to cancel his nieces party where as Jonny has been taken advantage off and worked really hard and did not receive the extra wages promised. Past consideration is no consideration as demonstrated in (Mcardle 1951) moreover Ken made the promise prior to Jonny fulfilling his job (on Tuesday morning), so it is valid and Jonny is able to sue on contract. Also Jonny is able to show that he provided consideration as he did not disagree or object when Ken made the promise. However in accordance to Stilk V Myrick (1809) it can be argued that Jonny was simply doing the job that he has been employed to do therefore he is not owed extra wages by Ken.
Anticipatory breach occurs when one party within a contract signifies to the other party that they will not be performing on their given due date, here the honest party has the power to terminate and sue immediately or wait until the due date, in case the wrongful party changes their mind if not they can sue instantly this is known as repudiation. Hochester V De la Tour (1853) argues that the innocent party does not have to wait for the breach to occur to bring their claim forward.
If losses caused by breach of contract are too remote they will not be awarded. In Hadley V Baxendale (1854) we see the test of remoteness, this is a test of forseeability. In this case the court ruled that the loss has been caused naturally, due to this Baxendale could not be held accountable for the losses as he had not foreseen the results of the delay. This is again demonstrated in Treiman V Pike (1969) as the claimants rare disease due to rat urine, was held as too remote, this is because the disease was not foreseeable. Nonetheless the outcome was different with Victoria Laundy V Newman Industries LTD (1949). This is due to the fact that Newman Industries could not argue that they could not foresee Victoria Laundry's loss of profit as they knew that she was to use the boiler she had ordered from them for her business.
It is Janes statutory right to claim for unfair dismissal. Furthermore as Jane has been dismissed solely for being pregnant this is a cause for automatic unfair dismissal, section 94 of the 1996 employment act states that "every employee has the right to not be unfairly dismissed". Jane now has three options which she can take up during an employment tribunal. Jane can make an order for reinstatement which allows her to be re-employed into the role that she had been unfairly dismissed from. Another option would be re-engagement which means that Jane would be re-employed into a different role. Jane has the ability to choose to present either or both to the tribunal, if the tribunal then decides to order reinstatement or re-engagement the employer has the rights to not re-employ Jane, with valid reasons. If the tribunal is not satisfied they can then move towards compensating Jane for the unfair dismissal.
Under the 1996 Employment act, Calvin can claim grievance against his employer Donna at the employment tribunal. If Calvin wants to use the grievance as the foundation of his case he has a time limit of 90 days, he must present this in writing to his employer, if the employer doesn’t deal with the problem, Calvin must take his issue to the Employment Relations Authority. As Calvin completed a year at work and it is unfair for Donna to humiliate Calvin without any evidence. Unfortunately, Calvin cannot claim for unfair dismissal as he did voluntary resign he has lost that right.
Peter may bring a claim to the tribunal for unfair dismissal providing that he meets the following conditions, Peter must have two years continuous employment as provided by the facts Peter has worked a sufficient amount of time. Peter must also bring his application with in a 3 month time period after his dismissal. In Tesco Stores v Khalid (2001) the tribunal was in favour of Khalid as they believed that too much weight had been put on the theft of the cigarettes and not other factors such as his Job performance, this is an advantage to Peter as he has been working for 2 years with an exemplary track record. More over, in order for Peter to claim for wrongful dismissal, we must refer to Peter's initial contract to see if the employer has breached any conditions, the employer also failed to follow contractual disciplinary procedure which allowed Peter to bring a claim under wrongful dismissal. A remedy for wrongful dismissal is damages, which puts the employee in the same position they would be in if the contract had been sufficiently carried out. At hand we have a case in which Peter is being dismissed without notice, the employer can justify dismissing the employee (summary dismissal) if the employee has committed a serious breach of contract, in regards to Peter's dismissal he has not committed a serious breach.
The law of negligence protects others from unreasonable risk of harm due to the misconduct of others. In this case Emily can bring action against, as she suffered from serious burns due to an employees negligence. As a customer Emily is owed a duty of care by the employees, as a result of misconduct by the defendant (wiring the urn without reading the instructions), Emily suffered damage. Although Marge served Emily, and the initial misconduct is due to steves actions, the employer is liable for the negligence of his employees. The duty of care was established by Lord Atkin's neighbour test from Donoghue V Stevenson. This is broken down into the reasonable foresight of harm and the relationship of proximity. On the contrary, the allergic reaction that Emily had due to the brand of butter used may not be a sufficient case, the defendant can escape liability due to the remoteness of the loss suffered. Emily is able to sue on the grounds that the losses that she suffered were foreseeable, in this case they were not, the defendants were not aware that Emily had allergies from this particular brand of butter and no other customer reported similar reactions.
In regards to the alternative dispute resolution, there are several approaches to reach a solution without going to court. The first is arbitration, within arbitration, the arbitrator makes a decision in which both parties are then legally bound by the decision made, meaning court action is not to be taken. Secondly there is conciliation, this process is usually free. Here the conciliator assists both parties with resolving the dispute, this is done by evaluation all solutions along with the pros and cons. Lastly, mediation. Mediation is for the parties that want to continue a relationship, the mediator aims to benefit both parties and helps them to negotiate, the mediator does not focus on solely legal rights.
Arbitration can prove to be cost effective in comparison to court litigation however due to the nature of arbitration decisions cannot be reviewed whereas in court cases it can be appealed. Mediation is private and is in the control of the parties that are within conflict, the process is subject to 'without prejudice' privilege yet some clients to not prefer this as they believe that an offer to mediate may be seen as a sign of weakness by the other party. The process of conciliation is private, this means that the parties do not risk damaging their reputation whereas in court, reputation can be tarnished. A disadvantage is that the outcome is not legally binding.