3. The importance of English law

Question 1

What are the 3 elements of English law?

Answer 1

Common law, equity and statute

Question 2

What does English law influence?

Answer 2

Development of law systems around the world including offshore centres.

Question 3

What is the basis of English law and where is it used?

Answer 3

Common law is the basis and is used in most Commonwealth, the Crown dependencies and the US (except Louisiana)

Question 4

How are the Jersey and Guernsey law systems similar/different to English law?

Answer 4

Crown dependencies have never been part of the UK and have their own laws and jurisprudence, however, english cases are often referenced in court judgements and have considerable influence.

Question 5

What is the UK Privy Council?

Answer 5

The Highest court for many commonwealth countries, Crown dependencies and the British overseas territories. Laws passed by the Crown dependencies require royal assent from this body.

Question 6

Who makes up the Privy Council?

Answer 6

Mostly made of up of senior politicians who are (or were) members of either the House of Lords or the House of Commons.
Various judicial functions are also performed by the Queen in council (the monarch with the Privy Council acting as advisor), although nowadays the actual work on cases is carried exclusively by the judicial committee of the Privy council

Question 7

How did common law evolve?

Answer 7

After William the Conqueror’s conquest of 1066, he thought it would be advantageous if he had control of the legal system in England, mainly to impose taxes.
He set up royal courts, and appointed his own judges, and encouraged his nobles to use this court to settle disputes.
The judges would use local customs to decide disputes, but over time they selected the best customs from various areas and universally used these. The effect of this is that law became common throughout the country hence the phrase common law.
It is made up of unwritten law that has developed from customs and the decisions of judges. This guides the decisions of future judges and thus the law evolves.

Question 8

What is the problem with common law?

Answer 8

It is extremely rigid - it became very procedure driven and therefore could result in injustice. This was also due to the limitations of remedies available, only damages could be awarded.

Question 9

How and why did equity develop?

Answer 9

The Court of Chancery applied the concept of equity. Where justice did not appear to be done under common law principles, an otherwise innocent party who could not obtain redress for grievances could apply to the kind who had unlimited powers to intervene to determine cases on an ad hoc basis in order to achieve a fair result.
This developed into a whole system of law with a specific set of legal principles and rules. A system of common law and a system of equity therefore developed in parallel.

Question 10

What was the purpose of equity?

Answer 10

The Court of Chancery sought to decide cases in accordance with what was right, just and fair rather than adhering to the letter of the law (and its procedural technicalities).
Equity law can offer different remedies where as common law can only offer damages as remedy.

Question 11

What is the relationship between common law and equity?

Answer 11

Common law applies automatically. The court, however, has discretion to apply the rules of equity and to grant an equitable remedy if it chooses to do so.
Where common law and equity conflict, equity must prevail. (Equity law takes precedence over common law if there is a clash)

Question 12

What is the concept of a trust relationship?

Answer 12

Involves someone giving something to someone else for the benefit of another.

Question 13

When was trust statue enacted? (+Acts)

Answer 13

The first substantial law to be enacted in England since the Statute of Use in the reign of Elizabeth I, was the Trustee Act 1925. This, together with various cases, formed the basis of trust law around the world.

Settled Land Act 1925
Trustee Investment Act 1961
Trustee Act 2000

Question 14

What is the perpetuity period?

Answer 14

How long a trust can remain active for.

England - 125 years enacted by the Perpetuities and Accumulations Act 2009

Question 15

How do you know which trust law applies to a trust?

Answer 15

If the trustee, settlor and beneficiaries are all in different jurisdictions, the proper law clause in the trust deed would specify the applicable law in the case of disputes.

Question 16

What is civil law?

Answer 16

Codified system in which laws are comprehensively set out in detail in a statutory code.

Question 17

What is common law?

Answer 17

Follows the doctrine of judicial precedence.

Question 18

What is civil law based on and where is it found?

Answer 18

Based on roman law and typically found in continental Europe. (e.g. Luxembourg, Lichtenstein, Switzerland)

Question 19

Who creates statute in Jersey and the UK?

Answer 19

UK - Parliament

Jersey - the States

Question 20

What, where and how is primary legislation created in UK?

Answer 20

This is statute. It is created in Parliament but there is a long process before it is passed. 2 initial stages must be negotiated:

• Green Paper - public consultation document
• White Paper - firm proposal for legislation

A prospective bill must pass through the House of Commons and the House of Lords before it becomes law.

Question 21

What is secondary legislation?

Answer 21

Parliament can pass enabling acts that confer legislative abilities to delegated bodies, who can then create secondary legislation.e.g. local councils and professional bodies.

Question 22

What are the advantages of legislation? (3)

Answer 22

• Any issue can be addressed by statute law, at any time, by Parliament.
• Statute if carefully constructed and is subject to a process of scrutiny.
• Statute law is available to and accessible to the general public

Question 23

What are the disadvantages of legislation? (7)

Answer 23

• Parliament has a limited time to consider and draft legislation
• Statute law is inflexible
• Government lack resources to amend legislation when it is out of date and no longer fit for use
• Statute can take a long time to change due to the process involved.
• Interpretation of statue is often required.
• Statute law cannot anticipate all circumstances or situations which may arise.

Question 24

What are the rules of statutory interpretation?

Answer 24

• Literal rule - Words will be given their ordinary dictionary meaning
• Golden rule - Where the application of the literal rule results in a manifest absurdity, it may be disregarded.
• Mischief rule - Enables the judge to interpret a statute in such a way to give the statute the lawful effect for which it was intended.
• Contextual rule - Words should be interpreted in context.

Question 25

How does case law operate?

Answer 25

On the basis of ‘stare decisis’ (to stand by a decision), whereby a judge is bound by the previous decisions of judgements made by courts above them in the hierarchy.

Question 26

(the reason for the decision)

Answer 26

Ratio decidendi - the binding element of the judgment.

Question 27

(statements made by the way)

Answer 27

Obiter dicta - not binding, merely persuasive authority and can be taken into consideration in later cases.

Question 28

What 3 cases will the established precedents not be binding?

Answer 28

• Overruling - whereby a court higher in the legal hierarchy sets aside a legal ruling established in a previous case.
• Reversing - whereby a court higher in the hierarchy reverses the decision of a lower court in the same case.
• Distinguishing - where there are material differences in the 2 cases.

Question 29

What are the advantages of stare decisis?

Answer 29

• Consistency (like-for-like cases will have the same consistency)
• Efficiency (case outcomes can be predicted in advance avoiding unnecessary litigation)
• Flexibility (new cases result in new precedents, whereby the law keeps pace with changes in society)
• Bulk (there is a vast library of cases to refer to)

Question 30

What are the disadvantages of stare decisis?

Answer 30

• Uncertainty (there are ways in which precedents may be avoided)
• Fixity (many outdated laws may remain effective until such times then they are overruled or reversed)
• Unconstitutional (the judiciary are not an elected body, there is a risk that they may overstep their authority)
• Bulk (the vast array of law available can lead to uncertainty as to which cases are binding in given circumstances)