Part 1 Business Law PDF

 Cases:  Cases: *Irish Times v Ireland* \[1998\] 1 IR 359 Slide 60\ "Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing...The most benign cl...

 Cases:  Cases: *Irish Times v Ireland* \[1998\] 1 IR 359 Slide 60\ "Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing...The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy."   Explanation of case : Justice must be done in public so that everyone can see it is fair and honest. This isn't to satisfy people's curiosity or nosiness, but because openness is essential in a true democracy. If justice happens in secret, corruption and abuse of power can grow, whether by judges or lawyers. Transparency helps keep the system accountable and trustworthy, preventing unfair or dishonest actions. *Reade v. Judge Reilly* \[2007\] 1 I.L.R.M. 504:\ Charleton J. said that offence is definitely minor if the penalty cannot exceed 12 months imprisonment or a fine of €3,000. Explanation of Case : The judge pointed out that the case took far too long because the courts lacked tools to manage cases effectively, and this showed the need for better systems to avoid delays. **Excessive Court Time**:\ The case took an extremely long time to resolve -- **51 days** in the High Court and **17 days** in the Supreme Court. **Reason for Delay**:\ One major reason for this delay was the **lack of proper case management** in the High Court at that time. - *Case management* refers to structures or systems used to organize and streamline court cases to save time and resources. **Highlighting a Problem**:\ The case showed how serious the issue can be when there is no proper system in place to manage complex cases efficiently. In the case **Reade v. Judge Reilly \[2007\]**, **Charleton J.** explained how to determine if an offense is **minor**: 1. **Definition of Minor Offense**:\ An offense is considered **minor** if the punishment for it is **no more than**: - **12 months in prison** (1 year), or - A **fine of €3,000**. 2. **Simplified Meaning**:\ If the penalty for a crime is small (not exceeding 1 year in jail or a €3,000 fine), the offense is seen as \"minor\" in the eyes of the law. This helps courts decide how serious a case is. Why was the Commercial court necessary In *Orange Communications Ltd v Director of Telecommunications Regulation* \[2000\] IESC 22 Keane J stated: "This case has occupied a **wholly inordinate degree of court time, both in the High Court and in this court**. It took 51 days in the High Court and 17 days in this court. This was due in part at least to the absence of appropriate case management structures in the High Court at the time of the hearing.. This case demonstrates that the problem can be indeed acute..." Explanation of Case : In *Orange Communications Ltd v Director of Telecommunications Regulation* 1. **Excessive Court Time**:\ The case took an extremely long time to resolve -- **51 days** in the High Court and **17 days** in the Supreme Court. 2. **Reason for Delay**:\ One major reason for this delay was the **lack of proper case management** in the High Court at that time. - *Case management* refers to structures or systems used to organize and streamline court cases to save time and resources. 3. **Highlighting a Problem**:\ The case showed how serious the issue can be when there is no proper system in place to manage complex cases efficiently. Articles: ***Article 34.1 of the Constitution provides:*** "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public." **[Explanation of Article 34.1 :]** 1. **Justice in Proper Courts**:\ Justice must be carried out in courts that are legally set up by the government. 2. **Judges Appointed Constitutionally**:\ Judges must be chosen according to the rules set out in the Constitution. 3. **Justice in Public**:\ Court cases must happen openly so people can see and trust that justice is fair. 4. **Exceptions**:\ Some cases may be held privately, but only in very specific and limited situations allowed by law (e.g., sensitive family cases or national security issues). The Constitution explicitly states many of the rights of the citizen: Articles: - Article 16.1.4: voting by secret ballot - Article 38.1: criminal trials in due course of law - Article 38.5: right to trial by jury (with exceptions) - Article 40.1: equality before the law - Article 40.6: Freedom of speech, assembly and association - Article 41: Family - Article 42: Education - Article 43: Property Article 44: Religion This ensures fairness, transparency, and trust in the legal system while allowing privacy only when absolutely necessary. What is the purpose of the law? - Law regulates conduct through the creation and enforcement of rules; - It recognises rights and imposes obligations; - It protects interests which are deemed important; - It assists in the maintenance of social order and cohesion; - In a democracy, it is informed by the will of the people (through their elected representatives); - It assists in the resolution of disputes. - - Civil v. Criminal law; - Substantive v. Procedural law; - Public v. Private law - **Substantive law** - covers most legal subjects that confer rights or impose obligations and liabilities on people; - **Procedural law** - details the **processes by which the substantive law is implemented** e.g. law of civil and criminal procedure and the law of evidence. - **Constitutional law** - concerns the powers and\ functions of the State and the rights of the citizen; - **Criminal law** - defines conduct that is prohibited and provides punishment for any breaches of its prohibitions. - **Contract Law** - governs voluntary relationships\ between two or more parties; - **Law of Torts** - is concerned with compensation for private wrongs which result in injury to another e.g. defamation/negligence. Meaning of Business Law..? "...**the totality of the law's response** to the needs and practices of the mercantile community". (E. McKendrick, *Goode on Commercial Law* (4th edn., Penguin, 2010) p.1347). Is business law public or private law? The Dynamic Nature of Business Law... "One of the most powerful influences on human activity is the driving force of trade...wars may break out, large areas of a country may be devastated by natural disaster, but somehow traders find ways of establishing and continuing business relationships**...\[T\]he ingenuity of the trader in constantly developing new sales techniques, new instruments to accommodate more efficiently the requirements of the commercial community, new methods of surmounting hurdles thrown up by the law or by the actions of governments**." (E. McKendrick, *Goode on Commercial Law* (4^th^ edn., Penguin, 2010) p.3). Where do our laws come from? - **The Constitution** -- establishes legal framework, court and political system, rights etc; - **Legislation** -- rules set out by the Oireachtas; - **Court cases** -- interpret and develop the law; - Other sources of law include **EU** law, international law, the European Convention on Human Rights, etc. - **Legislative power** -- the power to make law for the State -- this is the function of the Oireachtas (Parliament); - **Executive power** -- the power to formulate and implement the law and policy of the State -- this is the function of the Government; - **Judicial power** -- the power to deliberate upon and resolve disputes about the meaning and application of law -- this is the function of the judges in courts of law. - Legislation refers to the statutes / Acts enacted by the Oireachtas and signed into law by the President. - Primary legislation refers to Acts of the Oireachtas (eg The Control of Bulls for Breeding Act 1985). - The fine detail necessary to implement a provision of an Act is often found in secondary legislation (eg The Control of Bulls for Breeding (Permits) Regulations 1986), which is formulated and signed by the responsible Minister under delegated authority. - Resolve disputes; - Determine rights and obligations; - Interpret legislation; - Determine whether legislation is constitutional; - Develop common law rules; - Decisions of higher courts are binding on lower courts; - Earlier decisions may be binding on later decisions. - Much of Irish law continues to be based on judge-made rules - Eg the principles of negligence in Tort Law are derived from case law; many contract law principles are derived from case law - Why do you think judicial law-making is necessary? - Do you think it is better that judges make up the law or that the Oireachtas enacts legislation? The District Court - Established by s 5(1) of the Courts (Establishment and Constitution) Act 1961; - District Court judge sits alone for both civil and criminal cases; - Appeal to Circuit Court. Jurisdiction of the Circuit Court - Has a broader jurisdiction than the District Court and can, for example, grant orders of divorce; - Civil jurisdiction -- cannot award damages in excess of €75,000 (€60,000 for personal injury); - Criminal jurisdiction -- can hear serious criminal cases with the exception of cases such as murder and rape which come within the jurisdiction of the Central Criminal Court. - Unlimited civil jurisdiction -- cases over €75,000; - A constitutional challenge to legislation can be initiated in the High Court; - Criminal jurisdiction -- hears the most serious criminal cases, notably murder and rape cases (Central Criminal Court). - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- - The Commercial Court - Established in 2004 to deal with commercial disputes; - It is a "fast track" division of the High Court that specialises in Commercial disputes; - Flexible case management rules; - Encourages settlement; - Judges are expert in commercial matters. - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--Why is delay undesirable? - "Delay is an **additional source of distress to parties** who have already suffered damage. It postpones the compensation or other remedy to which they may be entitled. It interferes with the normal existence of both individuals and businesses... It can lead to the collapse of relationships and businesses. **It makes it more difficult to establish the facts because memories fade and witnesses cannot be traced.** It postpones settlement but may lead parties to settle for inadequate compensation because they are worn down by delay or cannot afford to continue." (Lord Woolf in his interim report on Access to Justice (1995) Ch 3 paragraph. 30). - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- ### Difference Between Civil and Criminal Law 1. **Civil Law**: - Deals with disputes between individuals, organizations, or between the two, in which compensation is awarded. - Examples: contract disputes, family law, personal injury. - Standard of Proof: Balance of probabilities (more likely than not). - Outcome: Usually involves monetary compensation, injunctions, or specific performance. 2. **Criminal Law**: - Concerned with actions that are offenses against the state or public, punishable under law. - Examples: theft, assault, murder. - Standard of Proof: Beyond reasonable doubt (higher standard). - Outcome: Penalties like imprisonment, fines, or community service. ### The Irish Court System 1. **District Court**: - Lowest level of court. - Handles minor civil claims, family cases, and criminal matters (summary offenses). 2. **Circuit Court**: - Handles more serious civil and criminal cases. - Also hears appeals from the District Court. 3. **High Court**: - Deals with serious civil and criminal matters. - Hears cases beyond the jurisdiction of the Circuit Court. - Acts as an appellate court for decisions from lower courts. 4. **Court of Appeal**: - Established to handle appeals from the High Court in both civil and criminal cases. 5. **Supreme Court**: - The highest court in Ireland. - Hears appeals from the Court of Appeal and constitutional cases of public importance. **Relationship Between Courts**: - The court system is hierarchical. Lower courts (District, Circuit) handle less serious matters, while higher courts (High, Court of Appeal, Supreme) review decisions or handle complex cases. Appeals move upward through this hierarchy. ### The Commercial Court **Why It Was Established**: - The Commercial Court was created in 2004 to speed up the resolution of complex commercial disputes and attract business to Ireland by providing efficient legal proceedings. **Main Features**: 1. **Specialized Division**: Part of the High Court, dealing with business and commercial disputes. 2. **Fast-Track System**: Cases are managed more efficiently, with strict timelines. 3. **Types of Cases**: - Disputes over contracts, intellectual property, and banking. - Cases involving large sums of money or commercial significance. 4. **Judges**: Experienced judges familiar with commercial law. This court ensures disputes are resolved quickly and effectively, maintaining Ireland's appeal for international commerce. - **Arbitration**: a third party (arbitrator) gives a binding decision to resolve the dispute; - Advantages: normally an expert, private and confidential, flexible, avoids delays; - **Mediation**: a technique used to help parties to reach a settlement, non-binding. - General rule is that courts must sit in public and their proceedings reported in the media; - A notable exception is the *in camera* rule -- only the judge, the parties, their legal representatives witnesses and jurors (if there is a jury) are permitted in court; - The public and the media are excluded from the court; - Rationales -- urgency and/or sensitivity. - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- ###. Contract Law Contract law deals with agreements between people or businesses. If one party does not follow the agreement (a \"breach\"), the other can take legal action. - **Example**: If you pay someone to build a fence, and they don\'t do it, you can sue them for breaking the contract. - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- ###. Employment Law Employment law governs the rights and duties between employers and employees. It covers things like wages, working conditions, and unfair treatment. - **Example**: If someone is unfairly fired without reason, employment law protects their rights. - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- ### Tort Law Tort law deals with civil wrongs that cause harm to someone, either intentionally or accidentally. The person harmed can claim compensation. - **Example**: If you slip and fall in a store because the floor was wet with no warning sign, you can sue for damages under tort law. ### Employment Law Employment law governs the rights and duties between employers and employees. It covers things like wages, working conditions, and unfair treatment. - **Example**: If someone is unfairly fired without reason, employment law protects their rights. ### Consumer Law Consumer law protects people who buy goods and services. It ensures products are safe, of good quality, and fit for their purpose, and it gives buyers rights when things go wrong. - **Example**: If you buy a faulty product, consumer law allows you to ask for a repair, replacement, or refund. ### Data Protection Data protection law controls how personal information is collected, stored, and used to protect people's privacy. Organizations must keep personal data safe and only use it lawfully. - **Example**: A company cannot share your email address without your permission. - \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- ### Criminal Law Criminal law deals with crimes, which are actions that break the law and harm society. The state prosecutes offenders, and penalties can include fines, imprisonment, or community service. - **Example**: Theft, assault, and fraud are all criminal offenses. -  - - - A diagram of a cycle Description automatically generated ### Key Points on Resolving Disputes #### 1. The Nature of Disputes - **Dynamic Process**: Disputes have a history and a future. Understanding both helps address the causes and find solutions. - **Escalation**: Not all disputes escalate. Good communication can de-escalate conflicts and prevent worsening. #### 2. Causes of Conflict (Circle of Conflict) - **Relationship Conflicts**: - Rooted in stereotypes, miscommunication, pride, fear, or emotional behaviors. - **Solution**: Identify and address emotions (e.g., fear, shame) individually or privately. - **Data Conflicts**: - Caused by unequal or incorrect information. - **Solution**: Share data transparently with confidentiality measures when necessary. - **Structural Conflicts**: - Barriers like power imbalance, time constraints, or destructive behavior. - **Solution**: Adjust the process to level power dynamics or remove obstacles (e.g., mediators, structured discussions). - **Interest Conflicts**: - Involve immediate needs, desires, or goals. - **Solution**: Explore and align differing interests (e.g., shared vs. differing needs). - **Value Conflicts**: - Based on deep-seated beliefs or values (e.g., religious, social, ethical). - **Solution**: Recognize and respect values rather than asking parties to compromise them. #### 3. Psychological and Emotional Influences - **Human Factors**: Disputes are often driven by emotions, fears, or unresolved past experiences. - **Iceberg Analogy**: Issues are visible, but underlying emotions, needs, and self-perception feed the conflict. - **Behavior Impact**: - Positive behaviors (respect, listening, cooperation) de-escalate disputes. - Negative behaviors (anger, threats) escalate them. #### 4. Tools for Resolving Disputes - **Communication**: Improve clarity, tone, and active listening. - **Interest Analysis**: Identify and separate interests (short-term goals) from values (non-negotiables). - **Affiliation Building**: Create trust and rapport to facilitate cooperation. - **Neutral Mediators**: Use third parties to balance power, share information, and guide discussions. - **Problem-Solving Approach**: Break down disputes into components and address each systematically. #### 5. Negotiation Insights - Disputes often settle last minute through financial bargaining (e.g., in court settings). - Proper negotiation can foster long-term relationships and mutual solutions. - Entrenched positions must be addressed by building trust, acceptance, and shared goals. #### 6. Action Steps - **Analyze the Dispute**: Identify root causes using the Circle of Conflict. - **Address Emotions**: Recognize and resolve emotional barriers (e.g., fear, shame). - **Focus on Interests**: Align and explore solutions based on shared and differing interests. - **Adapt Behavior**: Foster cooperation, respect, and positive engagement to transform outcomes.