Chapter 1 - English Legal System Flashcards
Define Law?
The principles and regulations established in a community by some authority and applicable to its people.
In form of legislation or of custom and polices
Types of law?
- Common law and equity
- Private law and public law
- Criminal law and civil law
what is common law?
- developed from local customs
- introduced the system of precedent
- rigid and inflexible
what is the remedy for common law?
damages
What was developed after common law?
Equity
what is equity?
- developed as a petition by a party who felt the common law had led to injustice
- more flexible
what is the remedies for equity law?
injunctions and specific performance
What are the 2 distinct areas of law that operate?
private and public
what are the categories within public law?
criminal law, constitutional law, admin law, social welfare law
what are the categories within private law?
law between individuals
- criminal law, constitutional law, family law, land law
what is criminal law?
relates to conduct of which the state disapproves and which it seeks to control
what is the purpose of criminal law?
the enforcement of particular forms of behaviour by the state, which acts to ensure compliance
In criminal law where is the case brought?
by the state in the name of the crown
Criminal case will be reported as Regina v… where Regina means the latin for ‘queen’
what is the burden of proof for criminal law?
on the prosecution
what is the standard of proof for criminal law?
guilt must be shown beyond reasonable doubt
what is the object of criminal law?
to regulate society by the threat of punishment
what is civil law?
a form of private law and involves the relationship between individuals citizens
what is the purpose of civil law?
to settle disputes between individuals and to provide remedies
in civil law the case is brought by who?
the claimant, who is seeking a remedy. The case will be referred to by the names of the parties involves in the dispute
what is the burden of proof for civil law?
on the claimant
what is the standard of proof for civil law?
liability must be shown on the balance of probabilities (lower standard of proof)
What is the object of civil law?
usually financial compensation to put the claimant in the position they would have been in had the wrong not occurred
What is the progress of the main English civil courts?
magistrates and county
high court
court of appeal
supreme
what is the supreme court?
five justices of supreme court hear appeals from the court of appeal and exceptionally from the high court
what is the court of appeal?
three lords justices of appeal hear appeals from the high court and county court
what is the high court of justices?
one high court in first instance
queen’s bench division
chancery division
family division
each division of the high court also has a divisional court which hears appeals from other courts
what is the magistrate’s court?
mainly criminal but does have civil jurisdiction
what is the county court?
first instance civil claims in contract, tort, landlord and tenant, probate, and insolvency.
one district judge hears small claims. The hearing is informal and no costs are awarded.
one circuit judge hears most fast-track, and some multitrack cases
What is the three-track system?
- small claims track
- fast-track
- multitrack
what is the small claims track?
deals with simple claims valued at no more than £10,000, an informal court
what is the fast track?
deals with moderately valued claims of between £10,000 and £25,000, expected to last no more than on day
what is the multitrack?
deals with claims of over £25,000 and/or complex claims
the county deals with what track?
small track/ majority of fast track and some multi tracks. rest go to the high court
what is the European court of human rights ?
the final court of appeal in relation to matters concerning human rights. Proceedings in the English courts must have been exhausted before a case will be heard hear
what is the judicial committee of the privy council?
highest court of appeal .
hears civil and criminal
proceedings take place in the supreme court
what is a tribunal?
alternative to using the court system to settle a dispute
what is an example of a tribunal?
employment tribunals
who is involved in a tribunal?
one employment judge, 2 expert laypeople who are drawn from panels representing both sides
what is the difference in expertise between court and tribunal?
court may not be heard by a specialist, tribunal will be heard by an expertise
what is the difference in speed cost between court and tribunal?
court is a slower process than tribunal, legal aid may be available but if not expensive in court, tribunal is cheaper
what is the difference in proceedings between court and tribunal?
court is stricter relating rules, evidence, pleading and procedure, tribunal is less formal and can be less intimidating
what is the difference in decisions between court and tribunal?
courts are bound by doctrine of judical precedent, therefore make consistent decisions, tribunal not bound, risk of making inconsistent decisions
what takes precedence over case law?
legislation
within case law, what prevails over common law?
equity
what is the doctrine of judicial precedent?
following the decisions in previous cases
what are binding precedents?
they must be followed in later cases
what are persuasive precedents?
the judge in a later case may choose to follow it but they are not bound to do so
what are the 3 factors when deciding whether a precedent is binding or persuasive?
- the hierarchy of the courts
- ratio decidendi and obiter dicta
- the material facts of the case
what is the hierarchy of the courts?
the precedents of higher courts bind lower courts but not vice versa
what courts does the supreme courts bind?
binds all lower courts. does not bind itself
what courts does the court of appeal bind?
binds all lower courts and itself in civil cases unless earlier decisions are overruled or is inconsistent with European law
what is ratio decidendi?
the legal reason for the decision. capable of forming the binding precedent.
it is a statement of law which is carried down to later decisions
what is obiter dicta?
statements which are not part of the ratio, they are other statements made by the judges such as hypothetical situations or wide legal principle.
persuasive rather than binding
if the material facts of 2 cases are different will it be binding or persuasive?
persuasive
a precedent is not binding where it?
- has been overruled by a higher court
- has been overruled by statute
- was made without proper care (per incuriam)
