1. Law and Legal Systems

Question 1

What is English common Law and Countries it applies?

Answer 1

English common law is one of the major legal systems in the world. Adopted in US and most old Commonwealth countries, including part of Canada, Australia, New Zealand and many states in Africa and the Far East.

Question 2

What is Civil Law and Countries it applies?

Answer 2

Civil law which is based on the laws of ancient Rome.. Dominates continental Europe

Question 3

What is Public Law?

Answer 3

• Public law is concerned with the legal structure of the State and relationships between the State and individuals.
• It also governs the relationship between one State and another.

Question 4

Categories of Public Law

Answer 4

• constitutional law
• administrative law
• criminallaw

Question 5

Constitutional Law

Answer 5

-structure of the main institutions of gov and their relationship including the relationship between the two Houses of Parliament in the UK and central and locall e.g defined treaties, roles

Question 6

Administrative Laws

Answer 6

• relationship between private citizens and agencies of government, and the impact of their activities on ordinary individuals
• e.g taxation, health

Question 7

Criminal Law

Answer 7

-concerned with the control of behaviour which harms or threatens the peace and stability of the community.

Question 8

What is Private Law ( civil law)?

Answer 8

-governs the relationships between legal persons e.g individuals, businesses and other organisations.

Question 9

Branches of Private law (6)

Answer 9

• law of contract
• law of tort
• law of trusts
• law of property
• law of succession
• family law

Question 10

What are 6 characteristic of English law?

Answer 10

• age and continuity - long history & developed without interruption over 900 years
• little codification
• judge-made law -decisions of judges to become part of the law
• independence of the judiciary (free from politics)
• adversarial system;
• no written constitution
• rule of law.

Question 11

Examples of codificationof English Law

Answer 11

-Fair proportion of the criminal law. -Under civil law relating to partnerships, the sale of goods, bills of exchange and marine insurance

Question 12

Adversarial system Vs inquisitorial system

Answer 12

• Adversarial: Court remains neutral .The role of the court is not to investigate but simply to listen to the evidence presented by the two sides and then give judgment.
  The only courts in England which employ an inquisitorial procedure are the Coroners’ Courts, which inquire into cases of violent, unnatural or suspicious death.

Question 13

Explain development of Common law

Answer 13

• Prior 1066 there was no single system of law - Justice was based on local customs which often varied from place to place.
• After Norman’s conquest 1066, central royal courts developed
• Travelling judges were sent by the King to monitor local administration
• The court of chancery in 1474 was created to deal with those dissatisfied with the common law. It was presided by lord chancellor
• The rules applied were of equity- fairness

Question 14

Explain development of Equity law?

Answer 14

• By 1500s, the Court of Chancery’s influence was widespread n became a threat to common law courts.
• The conflict between the two systems came to a head in the Earl of Oxford’s case (1616).
• This resulted in a ruling if there was a conflict between common law and equity, equity should prevail.
• In 1600s court of chancery began to follow it’s on precedents
• The Judicature Acts 1873–75 amalgamated the common law courts and Court of Chancery in a single system called the Supreme Court of Judicature (now named the Senior Courts of England and Wales)

Question 15

Sources of new law (5)

Answer 15

1. Legislation
2. Precedent or case law
3. local custom- not common
4. Legal books n treatises
5. European Community law

Question 16

Define legislation

Answer 16

• Also known as statute law
• created in formal way n set in writing
• Parliament makes the rules
• House of commons, house of lords, the monarch

Question 17

Define Green paper and White Paper

Answer 17

• Green Paper is published by gov inviting responses to proposed changes in the law.
• White Paper maybe published to give advance notice of more definite proposals.

Question 18

Define Public and Private bills

Answer 18

• Bills may be Public or Private. If they pass into law they become known as Public or Private Acts.
• A Public Act is a law affecting the whole community, such as the TheftActs
• A Private Act benefits a particular individual or organisation.
• Examples of Private Acts Lloyd’s Act 1982 and Insurance Brokers (Registration) Act 1977

Question 19

Private member’s bill

Answer 19

Bills which are introduced by individual Members of Parliament rather than by the Government

Question 20

Procedure for the enactment of public bills

Answer 20

1. may be introduced at House of commons or lords. Assume it’s is at commons
2. Bill goes through Stages- first reading , second reading ( debating and voting), committee stage (amendments may be done), report stage to the house ,third reading ( final opportunity to debate)
3. Bill moves to house of lords
4. Bill receives royal assent comes into force. It is then referred to an act or statute

Question 21

Consolidating Acts

Answer 21

A consolidating Act is one which repeals all previous legislation on a subject and re-enacts it in one logically arranged statute.

No new law is created but existing statutory enactments are brought under one ‘umbrella’. Examples

the Road Traffic Act 1988; and
the European Parliament and Council Directive 2009/103/EC consolidated 5 previous acts

Question 22

Codifying Acts

Answer 22

This is when gov decides to include principles embodied in case law. As a result most or, in some cases, all the law on a particular topic, including existing statute and case law is reduced to a single code. Examples Marine Insurance Act 1906 – consolidated previous legislation on marine insurance with legal principles contained in around 2,000 decided cases.

Question 23

Role of the Law Commission

Answer 23

• The Law Commission is responsible for the consolidation and revision of statute law.
• reviewing English law and recommending ways in which it can be updated, simplified and developed in a systematic wa

Question 24

Retroactive legislation

Answer 24

Retroactive legislation is legislation which affects acts done or rights acquired before it came into effect.

Question 25

Delegated legislation

Answer 25

Acts of Parliament which lay down general rules often confer on persons or bodies (particularly Government Ministers) the power to make detailed rules and regulations for the purpose of implementing the Act.

Acts which confer such power are called Enabling Acts (or Parent Acts) and rules made under the authority of these Acts are known as delegated or subordinate legislation.

Forms statutory instruments, orders in council, bye laws

Question 26

What are the aids of interpretation of statutes used by judges?

Answer 26

1. Statutory aids
2. Common law rules
   - literal rule (takes precedence)
   - golden rule
   - mischief rule- meaning inlight of mischief
   - presumptions

Question 27

Court system Diagram

Answer 27

Check screen shot

Question 28

What is precedent and how it evolved?

Answer 28

Precedent is a decision in a previous legal case where the facts were similar to the case before the court.
-Prevuously it was persuasive but as printing and law developed, By 1800, it had been accepted that regard must be paid to previous decisions, and that it was not for the courts to reject them

Question 29

Principle of Ratio Decidendi ( reason for deciding)

Answer 29

-the material facts of the case
-the decision if the judge/judges
-the reason for the decision
.Binding precedent means that the judge is obliged to follow the ratio decidendi of previous similar cases from courts higher than their own or in some cases of equal standing

Question 30

Obiter dicta

Answer 30

• Statements made by a judge which are not essential to the decision.
• They are not part of ratio Decidendi, nor binding but may be persuasive.

Question 31

Operations of binding precedent- civil courts

Answer 31

1. Supreme court-decisions here are binding on all lower courts. It is not bound by its own decision (1966)
2. Court of appeal- binding on high court and county court. It is bound by its own decision
3. High court- binding on inferior courts, but not on other high courts. The decisions of Divisional Courts are binding on judges of the High Court sitting alone, and on Magistrates’ Courts, but not on the Crown Courts.
4. County courts - are bound by all decisions of the higher courts.

Question 32

Operations of binding precedent- criminal law

Answer 32

1. Supreme court-decisions here are binding on all lower courts. Since 1966 It is not bound by its own decision but very rare.
2. Court of appeal- Decisions are binding on the Crown and Magistrates’ Courts. The court is normally bound by its own decisions, although it is more flexible than the Civil Division.
3. Crown court -Decisions are not binding on any court and are, at most, persuasive.
4. Magistrate courts - are bound by all decisions of the higher courts.except that they are not bound by the decision of a Crown Court hearing appeals from Magistrates’ Courts.

Question 33

Judicial Committee of the Privy Council

Answer 33

• final court of appeal from some Commonwealth countries and overseas territories.
• Lost importance as countries have left common wealth or established supreme court with no appeals

Question 34

Define

1. reversing
2. over ruling
3. disapproving
4. Distinguishing

Answer 34

Reversing- If a person, A, loses a case against another, B but then appeals successfully the decision in the first hearing is said to be reversed.

Overruling - where a higher court cancels out the principle of law contained in the ratio decidendi of the earlier case and substitutes a new one

Disapproving-decision is said to be disapproved when a court offers the opinion that an earlier case is wrongly decided but is not in a position to overrule it.

Distinguishing-occurs when a court declines to follow a previous decision on the grounds that there are important points of difference in the case which has gone before it

Question 35

Examples of persuasive precedents ( non binding)

Answer 35

• Decisions made in lower courts or courts of equal standing.
• Decisions of courts outside the English system (e.g. Judicial Committee of the Privy Council, Irish, Scottish, Commonwealth and United States Courts).
• Obiter dicta (especially of senior judges in high-level decisions).
• Textbooks, learned treaties and the law of other jurisdictions (e.g. Roman law) – these sources are very rarely used

Question 36

Advantages of Precedent

Answer 36

• Precedent provides certainty for persons as to their rights and liabilities.
• possibility of development and growth, with precedents that can be extended to new situations.
• Where a precedent will lead to a nonsensical decision, its scope can be restricted by the process of distinguishing. This provides an element of flexibility in the law
• it gives English law a wealth of detailed practical rulings, based on real situations rather than legal theory.

Question 37

Disadvantages of Precedent

Answer 37

• Once a rule has been laid down as binding it is not easy to change – this creates rigidity in the system.Change can be made by Parliament, through legislation, or being overruled by a higher court.
• The bulk and complexity of case law makes it difficult to navigate, and so the system depends heavily on expertise between the lawyers.
• The system of precedent may be slower than desired in development. It depends entirely upon litigation for rules to emerge.
• The principle of law contained in some decisions is sometimes obscure eg the ratio Decidendi may be unclear

Question 38

Sources of law reports

Answer 38

1. The council of law (1865) publish annual and weekly law report from the cases under high court and court of appeal
2. All England reports (1936)
3. Specialist law reports eg Lloyds report
4. Newspapers- times, Guardian
5. Online- ilaw, Westlaw, nexislexis

Question 39

European Treaties

Answer 39

• The Treaty of Rome 1957 established the European Economic Community (EEC) which aimed to set up a large European ‘free trade area’.
  2. The Maastricht Treaty is officially known as the Treaty of the European Union. It was signed in Maastricht on 7 February 1992 and came into force on 1 November 1993. The Maastricht Treaty created the European Union (EU)
  3. With the passing of the Lisbon Treaty in 2009, the EC was eliminated and the Treaty of Rome that had established it was formally renamed the Treaty on the Functioning of the European Union.

Question 40

Institutions of the European Union

Answer 40

1. Council
2. Commission
3. European parliament
4. Court of justice

Question 41

European Community law

Answer 41

European Union law had been a major source of law for the UK. But the ECA 1972 was repealed by EUWA. The retained EU law is part of the UK domestic law but the UK may amend such rules. But please note the Northern Ireland Protocol as mentioned above.

Question 42

situations an insurer is involved in court proceedings

Answer 42

1. They may become involved in disputes about taxation or matters of company law, or about the buildings and other property that they own.
2. They may need to go to court to settle a dispute with their own employees about pay, working conditions, pension rights or other employment-related matters
3. Disputed claims between the insurer and policyholder
4. Disputes between insurers e.g insurers and reinsurers
5. Cases in which insurance companies are seeking to defend their own policyholders, who are themselves being sued for compensation by third parties, that is, liability insurance claims

Question 43

Elements of Civil Procedure

Answer 43

• The Civil Procedure Rules (arising out of the Woolf reforms 1996) set out the procedure that civil cases follow before and at court.
• The pre-action protocols list actions that both parties to a dispute are required to take before legal action is started.
• If the case is not settled during the protocol period it may be issued at court.
• The court will allocate the case to one of three tracks: the small claims track for cases under £10,000 or for personal injury claims with a general damages element of less than £1,000; the fast track for cases not over £25,000; the multi track for cases over £25,000 or more complex cases.
• Either party may make an offer of settlement to the other party; if the offer is made as a Part 36 offer or payment then there may be cost consequences if it is not accepted.
• Litigation can be very costly; conditional fee agreements and before-the-event or after-the-event insurance can assist but since April 2013 there have been significant changes to funding of civillitigation.

Question 44

Woolf report made 303 recommendations. Give examples of 6

Answer 44

• 3 separate ‘tracks’ for cases, depending on their value and complexity.
• Encouraging the use of alternative dispute resolution
• Giving judges more responsibility for managing cases.
• Use of information technology.
• Simplifying documents and procedures and having a single set of rules for proceedings in both the High Court and County Court.
• Shorter timetables for cases to reach court and for the length of trials

Question 45

What is a part 36 offer

Answer 45

A Part 36 offer or payment is essentially an attempt to force the other party into a compromise

Question 46

Solicitor

Answer 46

Solicitors offer professional advice on all kinds of legal matters, from buying a home or matters of family law to major commercial deals, such as the selling of a major corporation.

Solicitors can also represent their clients in court. They do this mainly in the lower courts but some solicitors apply for and obtain advocacy rights in the higher courts.

Most solicitors work in private practice. Their businesses vary in size

Question 47

Barrister

Answer 47

Barristers act on instructions from solicitors and often have little direct contact with members of the public.

They perform two main roles. First, when specialist expertise is needed they give opinions on complex matters of law. Second, when clients need representation in the higher courts (i.e. the Crown Courts, High Courts, Courts of Appeal and Supreme Court) barristers provide a specialist advocacy service.

Question 48

Describe legal personality?

Answer 48

The law divides persons generally into two broad categories: natural persons and juristic persons (or corporations).

Special rules apply to the capacity of minors, persons lacking mental capacity and bankrupts.

Different status eg marriage will impose particular obligations and give particular rights.

Corporations can be either:

corporations sole – a legal person representing an official position which will be occupied by a series of different people (such as the Monarch); or
corporations aggregate – a legal person consisting of a number of people.
Corporations aggregate may be created by Royal Charter, private Act of Parliament or by registration under the Companies Acts.
Unincorporated associations are groups of people who have not been incorporated in the same way as corporations. They range in size and importance.

Question 49

How are minors treated differently?

Answer 49

• Because minors are inexperienced in contracts, there are special rules to protect minors who enter into contracts.
• In the law of torts, minors are usually fully responsible for their acts. However, parties will generally find it difficult to recover compensation from a minor, due to the lack of legally owned assets
• A minor cannot own a house outright, but can do so indirectly as a beneficiary under a trust.
• Full criminal responsibility applies in England and Wales in the case of minors over the age of ten, although the legal procedures followed and punishments employed differ from those used for adults. Children under the age of ten are presumed incapable of committing a crime
• Minors involved in civil litigation must sue through a ‘next friend’, i.e. an adult who is primarily responsible for any costs awarded against the minor.
• Minors cannot vote, marry, sit in jury

Question 50

How are person lacking mental capacity treated

Answer 50

• treated as responsible for tortious acts, although this may not be the case where the act requires a particular type of mental capacity which the person is incapable of forming (e.g. deception).
• the person may need to have a representative to carry out some activities, such as someone with a lasting power of attorney to handle the transfer of any property, or a litigation friend to act for them in civil litigation.

Question 51

What rights do bankrupt people lose

Answer 51

• sitting in either House of Parliament;
• becoming a member of a local council;
• acting as a magistrate;
• acting as a company director;
• obtaining credit over a certain amount.

Question 52

List the principles and remedies which equity has given to our legal system?

Answer 52

• law of trusts – a trust is a legal relationship created (in lifetime or on death) by a settlor through which assets are placed under the control of a trustee either for the benefit of a beneficiary or a specified purpose;
• specific performance – a court order compelling a person to carry out a promise which they have given to another; and
• injunction – a court order compelling a person to do something or prohibiting them from doing something.
• principles of promissory estoppel -the rule that a promise can be enforceable by law, where the promisee relies on that promise to their detriment.
• insurance principles of subrogation and contribution