how Judicial precedent works and how the court system ensures consistent behaviour.

how Judicial precedent works and how the court system ensures consistent behaviour.

            The judicial precedent refers to the sources of law in which the earlier decisions are employed in the creation law that the judges to refer back to as the apt guidance in making future case decisions. Thus, precedent is mainly founded on the stare decisis et non quieta movere principle, that is also known as the ‘stare decisis’, implying to “stand by the matters already decided. The binding precedent, therefore, entails the following of the previous decisions. This may at times result in the unfair decisions which can be observed as one of the disadvantages of the binding precedent. The binding precedent is mainly created in instances where the latter case’s decisions are satisfactorily comparable to the previous case facts. The precedent doctrine is known to be an increasingly rigid doctrine. Thus, in the hierarchy of courts, all courts are bound to earlier decisions made by the higher courts. In England, at the top of the hierarchy is the European Court of Justice and below it is the House of Lords, also regarded as the Supreme Court given that most laws do not relate to the European Union laws. The House of Lords’ decisions tend to be binding on every other courts in the English court hierarchy. The Court of Appeal is immediately below the House of Lords and has two distinct divisions namely the Civil and Criminal divisions. The two divisions adhere and follow the European Court of Justice and the House of Lords decisions. Moreover, the divisions are also bound by their individual decisions; however, the criminal decisions tends to be increasingly flexible in instances where cases involving individual liberties are involved.

The High Court along with the Divisional Courts are additionally bound by the European Court of Justice and the House of Lords decisions, along with the Court of Appeal in the High Court case. It is also worth observing that as from 1898 to 1966, the earlier decisions of the House of Lords bounded it and this made the law increasingly consistent as a result of the rulings arrived at in the London Street Tramways vs. London County Council of 1898. However, in the year 1966, a practice statement issued by the Lord Chancellor noted that the rigidity in adherence to the precedent might result in injustice in given cases in addition to unduly limiting the law’s proper development. Moreover, the statement also noted that this was to enable the successful departure from the earlier decisions in case it seem more right to do so by the House of Lords. Normally, the House of Lords try to follow the most of its earlier case decisions. The exceptions take in instances in which unfair decisions are prone to result from the following earlier case decisions. In the deciding of cases, the court depends on the subjective recklessness test, in which certain aspects of specified cases are given considerations. A good example regards the R v Caldwell (1982) case, in which the defendant had been laid off by the employer (hotel) after getting drunk and burning the hotel with the objective of causing damages. Even so, the hotel had guests who were sleeping. As a result, the defendant was not just charged with arson but additionally the intention to harm human life. Owing to this, Lord Diplock made the decision to do away with the objective test given that drunkenness was not perceived as adequate defence for one to be reckless. Still, in 2003, and in the case of R v G (2003) the court brought back the objective test given the decision calling on the defendants’ judgment to be conducted while taking into account aspects such as understanding and age. Thus, two boys of twelve and eleven years had camped in a shop yard following their parents’ permission. However, during the camping, the boys set fire on some old newspapers believing that the fire will eventually go out on its own. This was not the case as the fire spread to the bins that were close and eventually to the shop causing damages valued at more than £1 million. The defence noted that the two boys were not aware the various damages that they had caused given that they had left prior to the spread of the fire. Given that they had no intention of causing damages, the court made the decision to consider infancy in the ruling. In defence, it was noted that reckless behaviour entailed instances in which the defendants were aware of the various threats and given that the two boy’s intention was not to cause any damage, the court decided to put back in the objective test.

Such cases tend to indicate the preparedness of the House of Lords to move off from the previous decisions in instances where doing so is more desirable. Likewise, in the case, Elliot v C of 1983, the girl, 14 years old, with learning challenges, set their neighbour’s shed on fire in the course of playing with matches. The acquittal of the case was based on the observation that the girl was not aware of the damages she had caused. Nonetheless, the prosecution’s appeal was permitted on the basis of the Caldwell test which maintained that the lack of awareness in the case was irrelevant. The case was mainly in between R v G and R v Caldwell, and the decision was made founded on the Caldwell test even though comparable to the latter case’s facts. This was prone to bring about challenges to prospective cases as a result of the challenges faced by the judges with regards to the best case to follow.

As a result of its stringent application, the principle of precedent tends to be a restraint on law development. Nevertheless, the judicial precedent also have a number of benefits with the key benefits being the ability to offer certainty and consistency in law. Given that cases of comparable facts are bound by the previous decisions, it offers insight on the manner in which the case will be decided. Through provision of consistency in relation to the decisions made within the confines of the law that additionally ensure justice. Moreover, the consistency also offers reassurance in the laws, by making the people have the sense of fair treatment.

 

Discuss Tort law and issues which could arise during a construction project.

According to (citation), a tort mainly refers to the breach of any duty that is legally imposed. In this regard, the duty’s nature entails acting as an individual who is reasonable exercising some level of logical diligence. Tort tend to surpass the various obligations of the contracted party given that the duty might be to the other parties within contractual relations, over and above being to any other third party to whom the contract is logically foreseeable and are prone to be affected by an individual’s actions. Still, (citation) maintains that tort refers to any kind of conduct that harms another individual or another’ person’s property, and can be considered as the private wrong against an individual and on whose basis the injured individual can recover damages. Thus the tortfeasor may be sued with the objective of recovering the damages so as to effectively compensate for the losses incurred. Even though a number of torts often require intent prior to being liabilities, other do not require intent. Thus, in given instances, there is always a tort liability although the tortfeasor might not have had the intention to commit a wrong.

There are a number of issues that might arise during construction and that have the capability of creating future legal challenges. Some of the notable issues have been discussed as follows.

1. Securing of the performance provisions of the parties

According to (citation), the Securing the Parties’ Performance Provision is mainly intended to offer the details of the credit relations that exist between the construction project owners and the contractor. Thus, the Securing of the Parties’ Performance Provision takes in the various provisions that describes the various fiscal assurances that the construction project owners and the contractor make in a bid to assure the successful performance of the construction contract. Particularly, it takes in the aspects of the performance bonds and the post payment that the construction project owner uses to ascertain that the contractor continues performing the contract. Similarly, the contractor make use of the provisions to ascertain that the construction project owner has adequate capital to finance the project, as well as insure their tasks against probable non-payment. Characteristically, the contractor might use such provisions to list the available techniques they may use in securing fiscal payments from the project owner. For instance, the contractors might make sure that they have insured themselves against non-payment using the work pre-payment clauses and the mechanic’s liens.

Amongst the notable issues that might arise due to the Securing of the Parties’ Performance Provision include the observation that the contractor may attain the credit limit he might have allotted to the project owner and after that stop working until such time that payments are made to extend the relationship (credit). Consequently, the contractor might also reach the credit limit and rather enforce the mechanic’s lien before providing adequate amount of time prior to the extension of the credit relationship. Further, the other probability entails the view that in instances where the credit relations has not been stated clearly, the contractor might perform additional work thereby expanding the credit amount. In such case, the project owner will be held liable to pay for the additional work performed and that was not approved in time. Such credit issues are normally resolved amongst the parties even though they result in delays in the course of project finance negotiations. Still, in case the contractor enforces a mechanic’s lien in time, there will be a need for litigation. Such actions require the courts to tackle the dispute and is prone to will delay the project’s construction. Moreover, the lien might also prevent the acquisition of additional funding of the project.

The other notable issue that may arise in the construction project regards the Payment Provision. According to (citation), in the construction project, the Payment Provision is mainly intended at providing details on how the contractor will be paid. The payment provision, therefore, takes in aspects such as the schedule of all values that allot the essential line item value for all approved work items. The contractor uses the provision in certifying the level of work completed. Reliant on the amount of tasks completed, the contractor is required to apply for payment from the project owners through the provision of the detailed list of all fulfilled line items, the line items completion proportions, as well as the item values for completion proportions. On receiving the application from the contractor, the project owners are tasked with the responsibility of following the set steps in the provisions, as well as making the payments to the contractors less the retained fees paid to the contractor.

Amongst the notable issues likely to arise from the Payment Provision regards the view that it often leaves out the manner in which the contractor is to approve the work that is already completed. Thus, it offers more freedom to the contractor to decide on the amount of work completed in relation to the line items. As a result, the project owner is left with no option but accept the contractor’s determination and pay. Nevertheless, in case the project owner deems that the contractor has incorrectly approximated the work completed, and therefore, does not deserve the complete payment, the withholding of the payments might be perceived as a breach of the contract, and as a result, the contractor might stop the performance and look for means of recovering the materials and labor that is already completed, or even go on carrying out the work but seek judgment for the contractual damages.

Though such issues may be resolved between the contractor and the project owners, the withholding of the payments is prone to result in the building process disruption. However, in case the matter cannot be effectively resolved by the project owner and the contractor, the contractor will be forced to seek

 

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In the event that the issue cannot be resolved directly between you and the builder or contractor, it is almost guaranteed that the builder or contractor will pursue litigation in order to recover any payments that you have not made. The builder or contractor is also likely to pursue subsequent monetary damages that they may have suffered as a result of your withholding of payment, and will ask the court to enter a judgment through which you will be responsible for paying the builder’s and contractor’s attorneys’ fees and costs.

 

 

 

SECTION C

Contract

The construction industry uses a range of standard form contracts to ensure consistency between contracts.

1. Discuss the use of standard form contracts and why they ensure consistent behaviour.

 

Section C = 1000 words