Chapter 1 Flashcards
What do we mean when we speak about the law?
The body of general rules which governs and controls the behaviour of people in the country or sovereign state in which we live.
Where is English common law one of the major legal systems?
US, most old commonwealth countries (part of Canada, Australia, New Zealand and states in Africa and the Far East)
What is public law concerned with?
The legal structure of the state and relationships between the state and individual members of the communities. It also governs the relationship between one state and another.
Including: constitutional law, administrative law and criminal law.
What is constitutional law concerned with?
Structure of the main institutions of government and their relationships to each other. Treaties with foreign states; statues, function and powers of the monarch, members of parliament, government ministers, judiciary, civil service and armed forces.
What is administrative law concerned with?
A branch of constitutional law. Legal relationship between private citizens and the various agencies of local and central government.
What is criminal law concerned with?
The control of behaviour which harms or threatens the peace and stability of the community.
What is private law concerned with?
Relationship between legal persons such as Individuals, business and other organisations.
What are the most important branches of private law?
Contract, torts, trusts, property, succession and family
How do the law systems relate to insurance?
The legal rules which govern insurance are part of civil law (contract and tort are the most applicable)
What are the characteristics of English law?
Age and continuity (developed over 900 years)
Little codification (systematic collection of laws to avoid inconsistency)
Judge made law (binding precedent)
Independence of the judiciary
Adversarial system (neutral other than coroners court which is inquisitorial - violent cases)
No written constitution (freedom to do anything not prohibited by law)
Rule of law
WHat are example parts of English law that have been codified?
For civil law the law relating to partnerships, sale, sale of goods, bills of exchange and marine insurance.
What are the principles of the rule of law?
Powers exercised by politicians and officials must have a proper foundation and be based on authority given to them by law.
Law generally should be reasonably certain and predictable.
People should be treated equally by the law.
No one should be punished or deprived of there property
Every person should have right of access to the courts.
How did common law develop?
A single system of law developed after the Norman conquest in 1066.
The Norman’s wanted a strong central government which also developed the royal courts. The king sent the judges around the country to check on the local admin and this meant they gradually adopted the best customary rulings.
Any petition against the ruling went to the king and later the chancellor hence a court of chancery appeared.
How did equity develop?
The chancery court started getting a lot of power in the 1500s where conflict appeared. It was decided in The Earl of court case 1616 that equity should thus prevail when they conflict.
Equity gives our legal system the law of trusts, specific performance and injunction.
What are the two main sources of English law?
Legislation and judicial precedent.
What are the two minor sources of English law?
Local custom and legal books and treatises
What does the parliament consist of?
The House of Commons.
The House of Lords.
The monarch.
When is legislation called statute law?
In the case that parliament delegates its law making power to lesser bodies.
What can the act of parliament do do the law?
Create entirely new law
Overrule what already exists
Modify or extend principles of common law or equity
Repeal or modify existing statute law
When new legislation is introduced, how are the public or interested parties consulted?
Initially with a green paper which invites responses and is followed by a white paper which gives notice of a definite proposal. This is then drawn up in the form of a bill.
Public vs private bill?
A public bill effects the whole community where as private is passed for the benefit of a particular individual or group.
What’s the procedure for the enactment of public bills?
First reading
Second reading
Committee stage
Report stage
Third reading
This goes through the House of Commons and then again the House of Lords.
If it does not pass completely through a parliamentary session it lapses and must either start anew or be dropped.
What is meant by consolidating acts?
When all previous legislation on a subject matter are repealed and the Renacted under one logically arranged statute.
What is a codifying act?
Consolidating and then including principles from case law. Eg marine insurance act 1906
What is the permanent body called concerned with concerned with the modernisation of the law?
The law commission.
What are the most important forms of delegated legislation?
Statutory instruments - enabling acts
Orders in council - power concerning constitutional matters (originally the privy council)
Bye laws - authority given to certain bodies
What act is used to help interpretation statute?
Interpretation act 1978
(Singular include the plural, masculine gender includes female, person includes artificial entities)
What are the 4 common law rules?
Literal rule - words and rules construed in there ordinary sense
Golden rule - alternative interpretation for if result is absurd
Mischief rule - consider the words in light of the mischief
Presumptions -
How does the European communities act effect statutory interpretation?
Prior to brexit the European communities effected English law.
Law passed before our exit must be interpretated as much as possible in line with EU law
Hierarchy of the civil and criminal court
Criminal: magistrates - crown court - court of appeal - Supreme Court
Civil: magistrates - county courts - divisional/ high court - court of appeal - Supreme Court
Who deals with minor civil cases?
County courts
Who deals with major civil cases?
In first instance heard by one of the three divisions of high court
What does the chancery division deal with?
Company matters
Partnerships
Trusts
Mortgages
Revenue matters
What does the family division deal with?
Family law and adoption/guardianship
Which court are minor criminal offences dealt with in?
Magistrates court later appealed to crown or high court
Where are more serious criminal cases dealt with?
Crown court with appeal at the court of appeal.
What is the doctrine of stare decisis?
Let the decision stand
What is ratio decidendi?
The reason for deciding, based on material facts, decision of judges, reasons for the decision.
What is Obiter dicta?
Statements made by a judge which are not essential to the decision.
What effects whether a decision of precedent is binding?
The level of court that the judgement is made.
What are the advantages of precedent?
Certainty
Development and growth
Flexibility in the law
A wealth of practical rulings.
What are the disadvantages of precedent?
Rigidity
Complexity of case law
Slow
Obscure decisions.
What is the aim of the Treaty of Rome 1957
Established the European Economic Community with aim for a free trade area.
What is the Maastricht treaty?
It is the treaty of the European Union (199), with the treaty of Rome remaining one of the core documents.
What are the 4 main institutions of the European Union?
Council
Commission
European Parliament
Court of justice
What are the main sources of European Law?
Treaties
Regulation
Directives
Decisions
Recommendations
Opinions
What are some of the recommendations made in the Woolf report?
Three separate tracks for cases
Encouraging the use of alternate dispute resolution
Giving judges more responsibility
More use of information tech
Simplifying documents and procedures
Shorter timetables for cases
What is the pre action protocol for personal injury cases?
Claimant sends defended an letter of claim
Defendant responds within 21 days
Cooperation in appointing expert witnesses
When are pre action proceedings issued through the MOJ
Road traffic accident claims
Employers liability
Public liability claims between £1,000 and £25,000
Which court is picked for a civil case?
They start in either county court or high court but proceedings may not start in high court unless the claim is more than £100k
Personal injuries £50k
What time period do people have to defend a Claim?
They must acknowledge or send a defence to the court within 14 days
How are cases Allocated to the different tracks ?
Small claims - disputes up to 10k or personal injury up to £1.5k or house disputes up to £1k. Personal injury changed to £5k limit in may 2021.
Fast track - straightforward disputes up to £25k
Multi track - above £25k or cases likely to last longer that 1 day
What is ADR
Alternate dispute resolution
Where does the small claims limit remain at £1k?
The claimant is a child or a vulnerable road user
The claimant is an undischarged bankrupt
Vehicle was registered outside the uk
Children or protected parties
What is the time aim for a fast track case
To have the case heard within 30 weeks and then conclude the trial in one day.
What is a part 36 offer?
A person involved in litigation to make the other an order in the hope of settling the case before it goes to trial. Part 36 is the rules governing this. If the payment is not accepted within the time allowed and the person who refuses it fails to beat this sum in trial they will have to pay the extra costs despite winning the case.
What is the insurance coverage for the legal expenses called?
Legal expense insurance, if purchased after the event it is ATE
What are the different agreements for funding court cases?
Damages based - conduct litigation in return for a share. 25% personal injury and 35% employment 50% all others.
Conditional fee - no longer recoverable from the losing party
Legal person vs natural person
All humans are natural person where as legal person is the lawful characteristics and qualities (inc capacity to contract)
How do minors sue in litigation?
Through a next friends - an adult who is primarily responsible for by cost awarded against the minor . Not liable for the costs though.
Corporation sole vs corporation aggregate
Sole is a legal person representing an official person
Aggregate is a legal person representing a number of persons.
What are unicorporated associations?
Small social clubs, small businesses and trade unions
These groups are made up of individuals and not treated as separate legal entities so each has there own legal responsibility.
If someone is negligent, even when acting for the club, they will be personally liable
Difference between private and public law?
Private is the relationships between invididuals
Public is the relationship between the state and individuals
What are the branches of private law?
Law of contract, law of torts, law of trusts, law of property, family law, law of succession
Three examples of legal principles or remedies derived from equity
Law of trusts
Promissory estoppel
Subrogation
Contribution
Special performance
Injunction
Important types of delegated Legislation
Orders in council, statutory instruments, bye laws
