Chapter 1: Law and Legal Systems Flashcards
1
Q
What are laws?
A
Rules that govern and control the people.
Backed by sanctions and punishments.
Reflect current attitudes in society.
2
Q
Where do English Laws apply to?
A
England, Wales and Northern Ireland
3
Q
What are the two main types/sources of law in England?
A
English Common Law and Civil Law
4
Q
What are the two classifications of law?
A
Public and Private Law
5
Q
What 3 areas does Public Law include?
A
Constitutional Law, Administrative Law and Criminal Law
6
Q
What is Constitutional Law?
A
Controls the relationship between government/s both local and central.
EG: the making of treaties with foreign states
7
Q
What is Administrative Law?
A
Controls the relationship between citizens and government.
EG: taxation, health and education laws
8
Q
What is Criminal Law?
A
Controls harmful behaviour to ensure a peaceful society.
EG: fines and prison terms
9
Q
What is Private Law?
A
Controls the relationship between people and businesses.
10
Q
What are the 6 branches of Private Law?
A
Contract, Tort, Trusts, Property, Succession and Family Law
11
Q
What are the 7 characteristics of English Law?
A
Age and Continuity Little Codification Judge Made Law Judiciary Independence Adversarial System No Written Constitution Rule of Law
12
Q
Explain “Age and Continuity” in relation to English Law Characteristics:
A
As English law was developed over 900 years, it still references old cases and statutes (some from over 500 years ago).
13
Q
Explain “Little Codification” in relation to English Law Characteristics:
A
Legal code is written down to avoid inconsistency.
Only some parts of English Law have been codified, mainly criminal law.
14
Q
Explain “Judge Made Law” in relation to English Law Characteristics:
A
Through judicial precedent, the decisions of judges in England have helped to grow and develop English Law.
15
Q
Explain “Judiciary Independence” in relation to English Law Characteristics:
A
Judges are appointed by the government but are free from government control and interference.
16
Q
Explain “Adversarial System” in relation to English Law Characteristics:
A
Court remains neutral by just listening to two arguments at hand.
17
Q
What did the 1999 Civil Procedure Rules grant?
A
It granted the courts greater power to assess cases before them.
18
Q
Explain “No Written Constitution” in relation to English Law Characteristics:
A
As long as it’s not prohibited by the law, people are free to do anything in England.
English constitution is not entrenched so it is flexible and can adapt as needed.
19
Q
Explain “Rule of Law” in relation to English Law Characteristics:
A
Acknowledges that the power of politicians and officials must be based on authority given to them by law.
Laws should be predictable and fair and no one should be unjustly deprived of anything.
Everyone is equal under the law.
20
Q
Who is a Civil Court Case between?
A
Claimant (formerly the Plaintiff) and Defendant
21
Q
Who is a Criminal Court Case between?
A
Prosecution and Defence
22
Q
What is the “Balance of Probabilities”?
A
In civil proceedings, this means that the claimant has to argue “more likely than not”.
23
Q
What is “Beyond All Doubt”?
A
In a criminal case, guilt must be absolute and proven beyond all doubt.
24
Q
What are the 2 types of court systems?
A
UK: Adversarial System where the court is neutral and listens
Europe: Inquisitorial System where the court actively tries to uncover the truth
25
When is the Inquisitorial System used in the UK?
In the coroners court when investigating a suspicious death.
26
What helped develop English Law?
The Norman Conquest of 1066 as they established central court and government in Westminster.
Power moved away from local council and communities.
27
What was the Court of Chancery?
Established in 1474, it was based on equity / fairness and separate from the other courts at the time.
28
What was the "Earl of Oxford" Case?
In 1616, it was decided that if there was a conflict between common law and equity, then equity would prevail.
29
What were the 1873 - 1875 Judicature Acts?
Combined the Common Law Courts with the Chancery Court into the Supreme Court.
Equity would still prevail.
30
What is the difference between Common Law and Equity?
Common Law: unified system of law
| Equity: collection of rules offering an alternate approach (fairer)
31
What 4 things has Equity given the Legal System?
Law of Trusts: Assets are placed under someone else's control for their benefit
Specific Performance: Court ordered carrying out of a promise
Injunction: Court order compelling or prohibiting someone from doing something
Promissory Estoppel: Promises are enforceable if the promisee relies on the promise and would be worse off without it being fulfilled
32
What two ways can English Law develop?
Through legislation or judicial precedent / case law.
33
What is the Northern Ireland Protocol?
Aims to avoid a hard land border in Ireland and protect the Good Friday Agreement by ensuring NI remains aligned to EU Single Market customs agreements.
34
What is Legislation?
Formal law that is set down in writing by Parliament.
35
What is Legislation also referred to as?
Statute Law
36
What is the difference between a Green and White Paper?
Green: invites responses from people interested in changing a law
White: formalised ideas from the green paper to be presented formally to Parliament
37
What are the 2 types of Bills?
Private: passed for the benefit of a particular person / organisation (i.e. planning permission)
Public: concerns the whole community
38
What did the Lloyds Act of 1982 try to avoid?
It tried to avoid conflicts of interest by regulating the amount of interest a broker could have in an underwriter.
39
What is the process for enacting a Public Bill?
First Reading: bill name read out
Second Reading: read and debated by parliament
Committee Stage: bill is discussed by 20-30 MP's and amendments are made
Report Stage: bill amended by Committee and presented to the House
Third Reading: any last changes are made
Bill then goes to the HoL who cannot reject a bill, only delay it
Royal Ascent: bill is signed off by the Queen and it becomes law
40
How can you tidy up an Act?
Codify: consolidates legislation and introduces new principles from case law
Consolidate: brings all previous laws under one statute
41
What is an example of Codifying an Act?
1906 Marine Insurance Act consolidated cover 2000 cases / case laws with previous marine legislation
42
What is an example of Consolidating an Act?
RTA and European Parliament Council Directive which consolidated 5 prior motor directives
43
When was the Law Commission established?
1965
44
What is the Law Commission responsible for
Consolidating and revising statute law
45
What is Retroactive Legislation?
Affects acts that happened before the retroactive legislation came to be.
46
What is Delegated Legislation?
Acts only provide a framework, so the legislation is delegated to civil servants to fill in the blanks
47
What are the 3 forms of Delegated Legislation?
Statutory Instruments: power enabled to ministers
Orders in Council: special powers enables to members of the Privy Council
Bye-Laws: powers given to councils to make bye-laws
48
What are 3 Statutory Aids used to interpret statutes?
1978 Interpretation Act
Preamble of an Act of Parliament
Interpretation section of an Act of Parliament
49
What is the 1978 Interpretation Act?
It lays down certain rules for interpretation of Acts
50
What is the Literal Rule?
Primary rule that takes precedence over all others by taking the legislation at face value
51
What is the Golden Rule?
If the strict application of a meaning or phrase is ridiculous, then the Court will assume Parliament did not intend for the ridiculousness to be interpreted.
52
What is the Mischief Rule?
It looks at what the Act intends to control and punish and applies that meaning to the word.
53
What are Presumptions?
Unless anything contrary is written, the statute should be presumed to not be: Retrospective,
Not binding of government,
Not infringing on certain rights,
Not infringing on international law,
Not intended to create a strict criminal offence,
Not intended to do away with the courts.
54
Where do minor and major civil offences go?
Minor: county court
Major: high court
55
What does the Chancery division of the High Court look after?
Trusts, Mortgages and Company Matters
56
What is the Queens Bench Division a division of?
The High Court
57
What is the Supreme Court?
It is the final court of appeal in the UK.
Prior to 2009, it was the House of Lords
58
Where do minor and major criminal cases go?
Minor: Magistrates Court
Major: Crown Court
59
How many people make up the Crown Court?
1 judge and 12 jurors
60
When are there no jurors?
For civil proceedings
61
What is Precedent?
If a decision in a previous legal case (with similar basic facts) can be used to help decide on a current case, the judge uses precedent to ensure consistency across verdicts.
62
What is Binding Precedent?
The level of the court determines if a precedent is binding or not.
A judge can only be bound by decisions made in a court the same as, or higher than their own.
63
What was abolished in 1966?
A rule that meant the House of Lords were no longer bound by it's own decisions, if right to do so.
This rule now applies to the Supreme Court also, though they rarely go against a previous decision.
64
What is the Judicial Committee of the Privy Council?
It is the final court of appeal in the Commonwealth.
As countries set up their own appeal processes and leave the commonwealth, this has lost its importance.
65
What is the Judicial Committee of the Privy Council still used for?
Ecclesiastical and Prize (captured war ships) matters.
Medical, Dental and Optical tribunals.
66
When can a decision be reversed?
If someone successfully appeals a decision.
67
When can a decision be overruled?
When a higher court decides that there is a different reason for deciding (ratio decidendi), they can overrule a decision.
You cannot appeal an overruling.
68
When is a case disapproved?
If the court thinks an earlier case has been wrongly decided, but they can't overrule it.
69
Why mightn't a case be able to be overruled?
If the cases aren't exactly comparable and the reasons for deciding a case don't match.
70
When does Distinguishing occur?
When a court doesn't follow a previous decision as a past and current cases are factually different.
This is how they can avoid following a binding precedent.
71
What are the advantages of following Precedent?
Certainty and consistency.
Can develop as new situations arise.
Can be flexible in the case of nonsensical decisions.
Bases decisions off of real situations and practical outcomes.
72
What are the disadvantages of following Precedent?
Not easy to change rulings if the ratio decidendi is thought to be wrong.
Difficult to navigate through tons of old cases.
The Ratio Decidendi might be different for all judges presiding.
73
What was established in 1865 and why?
The Council of Law Reporting.
To ensure solid law reporting so it's easier to follow precedent.
74
What is Local Custom as a source of law?
It is a minor source these days. Historically, English Law was based on the local customs of an area.
Nowadays, general laws are rolled out that affect the whole of England not just a region.
75
What did the 1957 Treaty of Rome establish?
The European Economic Community which established free trade and a common market.
76
What did the 1993 Maastricht Treaty establish?
Created the European Union, common security policy and judicial and police cooperation.
77
What are the 4 institutions of the EU?
Council: made up of representatives from member states
Commission: each member state is represented by a commissioner who initiates legislation.
European Parliament: members are elected every 5 years but have little power.
Court of Justice: the ultimate court of appeal on European Law, and judges are not required to follow precedent.
78
When/where are judges not obliged to follow precedent?
In the European Court of Justice.
79
What are 6 sources of European Law?
Treaties: set out the framework for law
Regulations: laws made by the council that are automatically binding for all
Directives: binding to all members but each country can choose how they are enacted
Decisions: no general application and only binding to whom it is addressed.
Recommendations/Opinions: no binding force, advisory only.
80
What was the case of Francovich vs Italian Republic?
In 1991.
Decided that a member state can be sued by an individual who suffers a loss as a result of an EU directive not being implemented.
81
What was the 1972 European Communities Act?
Set out how European Community Law would take effect in English Law.
This is now repealed.
82
What are the main civil disputes for insurers?
Dispute between policyholder and insurer over claim payment (breach of contract).
Disputes with other insurers over proportion of claim payments.
Disputes where the insurer is trying to protect their policyholder.
83
What did the 1996 Access to Justice Report find?
The Woolf Report found that the civil justice system was too slow, expensive and complicated.
It made 303 recommendations and was implemented in 1999.
84
What are some recommendations of the Woolf Report?
Encouraging ADR.
Greater use of IT.
Simplifying procedure in the courts.
85
What are Pre-Action Protocols and where are they issued?
Lists the steps parties have to take before they start legal action.
Helps with negotiation.
Issued via the MoJ claims portal for RTA, EL and PPL claims between GBP 1,000 and GBP 25,000.
86
What happens when a defendant receives a claim?
They can either accept it and pay, or send an acknowledgement of claim within 14 days of receiving the notification.
If no letter received, the claimant can ask the court to demand payment from the defendant.
87
What are the 3 Court Tracks?
Small Claims: Up to GBP 10,000 or GBP 1,000 for personal injury.
Fast Track: Straightforward claims up to GBP 25,000
Multi Track: Complex claims that don't fit into the above categories.
88
What is the Stay to Attempt Settlement?
If either party request a stay of proceedings to use ADR to try and settle the dispute out of court.
89
What is the Power to Strike Out?
The court can strike out part or all of a claim if the case doesn't make sense or if there are no grounds to defend it.
90
What happens during a claim allocated to the Small Claims Track?
Court makes each party file and serve all relevant documentation via a "standard direction".
Issued at least 14 days before the final hearing.
Use of lawyers is discouraged so the process remains quick and cheap.
91
What did the 2021 Civil Procedure Rules do?
Amended Rule 26.6 so that the SCT can be used for injury claims up to GBP 5,000 (previously GBP 1,000).
Only applies to accidents after 31 May 2021.
92
When might the SCT not be used for Personal Injury RTA Claims?
If the claimant:
- is a child
- is a vulnerable road user (i.e. pedestrian or cyclist)
- is bankrupt
- is representing a deceased
93
How soon are cases in the Fast Track aimed to be heard?
Within 30 weeks and the trial to conclude within 1 day.
94
What is Part 36 Offers and Payments?
Part 36 of the Civil Procedure Rules: an offer or payment made before trial to try and reach a compromise out of court.
If the offer is accepted, the case ends.
It's used to encourage the acceptance of reasonable offers and reduce unnecessary court hearings.
95
What did the 2013 Civil Justice Funding Reforms implement?
Damage Based Agreements: lawyers can take a percentage of the paid damages to compensate them.
Conditional Fee Agreements / After the Event Insurance: after 1 April 2013, premiums and fees are no longer recoverable from the losing party.
Costs Management: after 1 April 2013, the court takes into account personal budgets for multi track cases
Qualified One Way Costs Shifting: for personal injury claims, the claimant will not have to pay the defendants costs if they lose
96
What's the difference between Solicitors and Barristers?
Solicitor: gives professional legal advice and can represent a client in court
Barrister: act on instructions from solicitors and give specialist advice on complex law matters
97
What are the two types of "Person"?
Natural Person: all human beings
| Juristic Person: corporations / businesses
98
What 5 capacities protect Minors under the law?
Contracts: special rules protect minors when entering into contracts as they don't have lots of knowledge
Torts: minors are fully responsible for their actions
Property: minors can own personal property but not legal estate land unless under trust
Criminal Law: children under 10 are presumed incapable of committing a crime
Litigation: minors sue and defend claims via someone operating on their behalf
99
What are the 3 types of Corporations?
Corporations Sole: someone acts on behalf of an organisation. the role is created by statute and the person is unable to die as someone else will come and take their place. EG the queen or bishops.
Corporations Aggregate: a corporation where the corporation doesn't fundamentally change, only the people within it.
Unincorporated Association: not corporated, so there is no legal distinguishing between the people/members and the association. EG: partnerships and social clubs.
100
What are the 3 ways Corporations Aggregate are formed?
Royal Charter: formed by the Crown. EG the CII
Statutory Corporations: created by an Act of Parliament.
Registered Corporations: most common type formed under the Companies Act.
