1. Law and legal systems

Question 1

How are laws classified?

Answer 1

Public law- Constitutional law, administrative law and criminal law
Private law

Question 2

What are the characteristics of English law?

Answer 2

Age and continuity
Little codification
Judge-made law
Independence of the judiciary
Adversarial system
No written constitution
Rule of law

Question 3

How was equity developed?

Answer 3

Court of Chancery create a system as rules known as equity, based on fairness.
This court clashed with the common law courts and the two systems came to head in the Earl of Oxford’s case (1616). Equity won.
Court of Chancery began to follow its own precedent and equity and common law operated alongside each other.
The Judicature Acts 1873-75 amalgamated the common law courts and Court of Chancery in a single system called the Supreme Court of Judicature.
Equity should prevail in the case of a conflict with common law.

Question 4

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

Answer 4

The law of trusts
Specific performance
Injunction
Promissory estoppel
Subrogation and contribution

Question 5

What are the sources of English law?

Answer 5

Legislation
Judicial precedent (case law)
Local custom
Legal books and treaties
EU retained law

Question 6

What is The Protocol? (Northern Ireland Protocol)

Answer 6

Requires NI to remain aligned to EU single market and customs rules required to avoid a hard land border in Ireland (Articles 5-10, Protocol)
Requires the UK to provide opportunities for the NI Assembly to decide to discontinue the application of Articles 5-10
Provides that NI remains part of the UK’s customs territory
Makes UK authorities responsible for implementing and applying the provisions of EU law which apply to NI under the Protocol

Question 7

What can Acts of Parliament do?

Answer 7

Overrule existing law
Modify or extend existing principles of common law
Repeal or modify existing statue law

Question 8

What is the procedure for the enactment of public bills?

Answer 8

1. First reading
2. Second reading
3. Committee stage
4. Report stage
5. Third reading
   All above done in the House of Commons. If the Bill survives then it follows a similar procedure in the House of Lords. It then receives the Royal Assent and then becomes an Act or statue.
   E.g., The Consumer Insurance (Disclosure and Representations) Act 2012 and the Insurance Act 2015

Question 9

What are consolidating Acts?

Answer 9

Repeals all previous legislation on a subject and re-enacts it in one logically arrange statue - existing statutory enactments are brought under one ‘umbrella’.
E.g., Road Traffic Act 1988 and European Parliament and Council Directive 2009/103/EC

Question 10

What are codifying Acts?

Answer 10

Acts that embody principles into case law. e.g., the Bills of Exchange Act 1882, the Partnership Act 1980, the Sales of Goods Act 1893

Question 11

What is delegated legislation and how is it formed?

Answer 11

Delegated legislation is given through acts called Enabling Acts (or Parent Acts) and rules made under the authority of these Acts are known as delegated or subordinated legislation.
Forms of delegation:
- Statutory instruments = form of departmental regulations or orders.
- Orders in council = power of special importance is delegated by statue, like power concerning constitutional matters, through the Privy Council.
- Bye-laws = statutory authority given to certain bodies, particularly local authorities, that require the approval of the appropriate Minister.

Question 12

Name three statutory aids.

Answer 12

1. The Interpretation Act 1978:
   - Words in the singular deemed to include the plural and vice versa
   - The use of the masculine gender includes the feminine and vice versa
   - The term ‘person’ includes artificial entities, such as companies as well as human beings
2. Acts of Parliament frequently contain an interpretation section where important words and definitions are given a precise meaning.
3. Acts of Parliament have a preamble or long title setting.

Question 13

Name four common law rules that assist with interpretation.

Answer 13

1. Literal rule
   - When a clear meaning emerges, this must be applied.
   - ‘Noscitur a sociis rule’: a general principle that a word must be determined by its context.
   - ‘Ejusdem generis rule’: the meaning of any general terms depends upon any specific words which precede it.
   These rules apply to non-consumer contracts like insurance policies.
2. Golden rule
   - If the strict meaning of the word would lead to an absurd outcome then courts are entitled to take an alternative interpretation that avoids the absurdity.
3. Mischief rule (Heydon’s case)
   - The judge will consider the meaning of the words of the Act in light of the ‘mischief’ and choose the interpretation which makes the Act most effective.
4. Presumptions
   As follows:
   - Statues are not intending to create a ‘strict’ criminal offence, not intended to oust the jurisdiction of courts, not intended to have retrospective effect and only applies to the UK.

Question 14

Effect of the HR Act on statutory interpretation?

Answer 14

Under s.3 of the HR Act courts are obliged to interpret statutory provisions in a way that is compatible with the rights protected in the HR Act.

Question 15

Effect of the European Communities Act on statutory interpretation?

Answer 15

• Before Brexit, the EC had a fundamental influence on English. Under 2(4) of the EC Act 1972, any UK legislation passed was to be construed by the courts and take effect subject to EC obligations.
• Post Brexit (The EU (Withdrawal) Act 2018 (‘EUWA)) repealed the above. Law made before 1st Jan 2021 must be interpreted as far as possible in accordance with EU law. Now, the UK is not under obligation to achieve an interpretation consistent with EU law.
• However… Article 4 of the withdrawal agreement requires the provisions of the NI Protocol which affects the UK legal system.
• Article 13 sets out common provisions for Protocol purposes. E.g., Provisions referring to EU law must be, in their implementation and application, in conformity with the relevant CJEU case law.

Question 16

How are cases dealt with in Civil Courts?

Answer 16

Minor cases are dealt with by the County Courts and heard by a singular Circuit judge.
Major cases are heard at one of the three divisions of the High Court:
1. Chancery division: deals with company matters, partnerships, trusts, mortgages and revenue matters.
2. Family division: matters of family including property and matters concerning children such as adoption and guardianship.
3. The Queen’s Bench Division (QBD): busiest sector with largest staff of judges. Includes Commercial/ Admiralty/ Technology/ Construction Court.
Appeals from county court and High Court are dealt with by the Court of Appeal (Civil Division). Three judges normally sit but can be five or seven.
The Supreme Court is the final court of appeal. There are 12 justices. Five normally sit.
‘Leapfrog’ procedure is when cases go from the High Court to the Court of Appeal.

Question 17

How are cases dealt with in Criminal courts?

Answer 17

Minor criminal offences are dealt with by Magistrates’ Courts from which there may be an appeal to the Crown Court or High Court. Serious offences are dealt with in the Crown Court. This trial is before a single judge and a jury (normally 12 persons). Jury are no longer used in civil cases.

Question 18

Consider the nature of precedent.

Answer 18

Precedent requires a judge to base their decisions on the law established in earlier cases where the facts were the same. The judge can choose the parts which of the earlier decision are binding on them.
The judge is not bound to follow the earlier cases as such, but the principle established in it = ‘ratio decidendi’ (the reason for deciding)
Ratio decidendi is based on…
- The material facts of the case
- The decision of the judge or judges
- The reason(s) for the decisions
Obiter dicta = statements made by a judge which are not essential to the decision.
- These statements are not part of the ‘ratio decidendi’ nor are they binding on the case.

Question 19

What is the operation of binding precedent in civil courts?

Answer 19

The Supreme Court: is not bound by its own decisions.
High Court: its decision is binding on inferior courts. However, a HC judge’s decision is only has strongly persuasive influence on another HC judge. The decision of a Divisional Court are binding on judges of the HC sitting alone, and on the Magistrates’ Courts, but not on the Crown Courts.
Country Courts: are bound by all decisions of the higher courts.

Question 20

What is the operation of binding precedent in criminal courts?

Answer 20

The Supreme Court: all decisions binding on lower courts. Rarely overrules its own powers in criminal cases. This power was first exercised in 1987.
Crown Court: bound by decisions of the SC and of the Court of Appeal (Criminal Division), but not by the decisions of a divisional court.
Court of Appeal (Criminal Division): Decisions are binding on lower courts. Normally bound by its own decisions but a full court of five judges can overrule a ordinary court of three.
Magistrates’ Courts: Bound by decisions of higher courts apart from the decision of a Crown Court hearing appeals from Magistrates’ Courts.

Question 21

Reversing…
Overruling…
Disapproving…
Distinguishing…

Answer 21

a. When another court reverses the previous decision.
b. Occurs where a higher court decides a matter which is governed by a precedent set in an earlier case on a different principle.
c. Occurs when a court offers the opinion that an earlier case is wrongly decided but is not in a position to overrule it.
d. Occurs when a court declines to follow a previous decision on the grounds that there important points of different in the case which has gone before it.

Question 22

Advantages of precedent:

Answer 22

1. Provides certainty for persons as to their rights and liabilities. Provides certainty.
2. Allows for the possibility of development and growth.
3. Where precedent leads to a nonsensical decision, its scope can be restricted by the process of distinguishing.
4. Wealth of detailed, practical rulings, based on real situations rather than legal theory.

Question 23

Disadvantages of precedent:

Answer 23

1. Once a rule has been laid down as binding it is not easy to change - this creates rigidity in the system.
2. Bulk and complexity of case law means that it heavily relies on ‘equality of arms’ between the lawyers.
3. Means that circumstances may be slower than desired.
4. Principle of law contained in some decisions is obscure.

Question 24

Name some examples of law reporting.

Answer 24

The Incorporated Council of Law Reporting publishes semi-offical law reports.
Appeal Cases for House of Lords.
Weekly Law Reports.
All England Reports (private).
Specialist law reports, e.g., Lloyd’s Reports
Newspapers

Question 25

What are the four main institutions of the EU?

Answer 25

1. Council: the greatest legislative power and is made up of representatives of the Member States.
2. Commission: each Member State is represented by one Commissioner who has the power to initiate legislation.
3. European Parliament: members are directly elected every five years. It has supervisory power but little legislative power.
4. Court of Justice: Based in Luxembourg, it is the ultimate court of appeal on matters of European law.

Question 26

What are the sources of European law?

Answer 26

Treaties, regulations (e.g., The General Data Protection Regulation (GDPR)), directives, decisions, recommendations and opinions.

Question 27

Examples of European law.

Answer 27

The European Communities Act 1972: set out how European Community Law was to take effect in English law.
Note: the ECA was repealed by EUWA.
Insurance Companies Act 1982: dealt with the regulation of insurers and was based on European Directives. Now replaced by the Financial Services and Markets Act 2000.
Various Directives on motor insurance, aimed to harmonise key aspects of the law and practise of motor insurance across Europe. E.g., the Road Traffic Act 1988.
Consumer Protection Act 1987: based on an EC Directive and affects product liability insurance.

Question 28

Why would insurance firms go to court?

Answer 28

1. Dispute between the insurance company and the policyholder. Normally disputed claims.
2. Disputes between insurers themselves. Normally the sharing of claims.
3. Insurance companies seeking to defend their policyholders. Normally if they are being sued by a third party, i.e., liability insurance claims such as, third party motor claims.

Question 29

What did the Woolf Report (1996) recommend?

Answer 29

• Three separate tracks for cases.
• Encouraging the use of alternative dispute resolution (ADR).
• Giving judges more responsibility for managing cases.
• More use of information technology.
• Simplifying documents and procedures,
• Shorter timetable for cases.

The report led to the creation of new Civil Procedure Rules (CPR), which were introduced from 1999.

Question 30

What are pre-action protocols?

Answer 30

Pre-action protocols aim to encourage people who are in dispute to give information to each other at an early date in order to facilitate negotiation and, if possible, avoid court action altogether.
E.g., the Pre-Action Protocol for personal injury cases due to relevance to liability insurance claims.
The protocol requires that:
- Claimant should send the defendant a letter of claim promptly.
- The defendant should respond within 21 days.
- The defendant should investigate the claim and respond with three months.
- The parties should co-operate in appointing any expert witnesses.
Pre-action proceedings are issued through the Ministry of Justice (MoJ) for:
- Road traffic accident (RTA) claims
- Employers’ liability (EL) claims
- Public liability (PL) claims
Between $1k to £25k

There are fixed recoverable costs to encourage early engagement.
If the claimant does not adhere to the protocol they may be deprived of interest on their award and if the defendant is at fault they may have to pay extra interest on their award.

Question 31

Which court for Civil cases?

Answer 31

Civil cases are first heard at the Country Court and the High Court. High Court claims must have a value of £100,000 or above. If the claim is in respect of personal injuries the value must be of £50,000 or above. Defamation actions also start in the High Court.

Question 32

What is the Particulars of Claim?

Answer 32

Details which include names, details of facts and injury suffered and the amount of money being claimed.

Question 33

How are cases allocated?

Answer 33

Small claims track: normally used for disputes up to £10,000 (expect for personal injury cases where it is £1500 and for housing disrepair cases where the limits are £1000).
For RTA, it is up to £5000 following the Civil Procedure (Amendment No. 2) Rules 2021 under rule 26.6.

Fast track: used for straightforward disputes where the financial value is not more than £25,000.
Aim to have the case heard within 30 weeks.

Multi-track: cases exceeding in financial value of £25,000 and ones that the court considers trial to be likely to last longer than one day. Claims exceeding £50,000 will be sent to the High Court.

Question 34

What is a Part 36 offer?

Answer 34

It is essentially an attempt to force the other party into a compromise.

Question 35

How is civil litigation funded?

Answer 35

The case of Arkin v. Borchard Lines Ltd & Others (2005) made it clear that litigation funding is a legitimate method of financing litigation.
The insurance industry has developed legal expenses insurance (LEI) products. These can be bought after an incident giving rise to a legal claim. This is known as After the Event (ATE) cover.

Reform post April 2013:
Damages-based agreements (DBAs): lawyers will be able to conduct litigation in return for a share of damages. The contingency fee is 25% for personal injury, 35% for employment and 50% for all other claims.

Conditional fee agreements (CFAs)/ after the event (ATE) insurance: these premiums are no longer recoverable from the losing party on or after April 2013.

Cost management: for multi-track cases, parties will have to file and exchange detailed costs budgets before the first case management conference.

Qualified one-way costs shifting (QOCS) for personal injury claims: claimant awarded costs if successful but will not have to pay the defendant’s costs if they lose.

Third party funding (litigation funding): if the litigant wins their case, some of the proceedings go to the funding third party, if the litigant loses, the funding third party loses their ‘investment’.