Chapter 1 - Law and Legal Systems Flashcards

Question

Explain the English law characteristic - judge made law

Answer 1

In many countries the judges merely adopt statutory codes of laws. In England however, the system of binding precedent allows the descions of judges to become part of the law itself and allows the law on a particular subject to adapt and develop through a series of binding decisions.

Answer 2

English judges are appointed by (or on the advice of) the lord chancellor or prime minister, however the judiciary is effectively free from government control. Senior judges can be removed from office before their retirement age of 70 only by a motion approved by each House of Parliament. Junior members of the judiciary may be removed by the lord chancellor only on grounds of incapacity (e.g through illness) or misbehaviour. Judges are therefore largely free from political interference. Judges can therefore give judgement against government.

Answer 3

A judicial appointments commission.

Answer 4

Advise or assistance to any client regardless of political allegiance.

Answer 5

In English law, a court case is basically a contest between two sides. In a civil/private case this is the claimant and the defendant. In a criminal case this is the prosecution and the defence. This is known as a contentious procedure.

Answer 6

Remain neutral and simply listen to the evidence presented by the two sides and then give judgement for one side to another.

Answer 7

The balance of probabilities.

Answer 8

Beyond reasonable doubt. This means that the court must be completely sure that allegations made by the prosecution are true before the defendant can be convicted.

Answer 9

This is common in continental procedure and is different to English law because the court does not remain neutral but plays an active part in discovering the truth.

Answer 10

Coroners courts.

Answer 11

Violent, unnatural or suspicious death.

Answer 12

No large scale shift towards the continental system.

Answer 13

English law differs from many other countries in that it does not have a traditionally defined for its citizens any fundamental, unchangeable rights. In England there is simply freedom to do anything not prohibited by law.

Answer 14

It defines the fundamental rights and freedoms of citizens. Such as freedom of speech, religion and freedom to associate with others. In the U.S, law can be challenged on the grounds that it is unconstitutional.

Answer 15

Human rights act 1998

Answer 16

Although the constitution of English law is unwritten, it includes what has become known as the rule of law. This is a rather imprecise concept but is generally regarded as embracing the following principles: - politicians must have the appropriate power and authority as given to them by law - the law should generally be reasobnly certain and predictable. - people should be treated equally by law which should not allow unfair discrimination - no one should be punished or deprived of their property, status, or other rights, unless they are given a fair hearing by an impartial court or tribunal. - every person should have the right of access to the courts which will defend the liberties and freedoms of the individual.

Answer 17

- can refer to the unified system of law developed from legal customs of the country, which was built in medevil times and more or less complete by 1300 - can refer to the unwritten law as a whole, I.e those parts of the law which are contained in the descions of the courts I.e case law rather than acts of Parliament, legislation/statute - common law is often contrasted with equity. Can be used in this sense to refer to the system of rules developed and applied in what were known as common law courts. - finally the term common law can refer to English law as a whole. (Or any system based in English law) when comparing it to a system based on say Roman civil law.

Answer 18

There was law courts before the Norman conquest 1066 but there was no single system of law for the country as a whole. Justice as administered in local courts controlled by landowners and in shire county courts administered by the country sheriff. Often based on local customs which varied from place to place.

Answer 19

Royal courts developed and became established at Westminster in London. The king sent out representatives to most parts of the country to check on local administration.

Answer 20

They gradually adopted a judicial rather than administrative function. The travelling judges originally applied only the local law and customs which they found.

Answer 21

Local variations in law slowly disappeared and a uniform body of law emerged which was common to the whole country.

Answer 22

Very few statues so travelling judges looked to previous judgements in similar cases when reaching their decisions in order to ensure consistency.

Answer 23

Stare decisis (let the decision stand)

Answer 24

A gloss or supplement to the common law.

Answer 25

A collection of rules which were developed to remedy some of the shortcomings of the common law.

Answer 26

System of writs basically meant a claimant needed to obtain a document, a writ from the royal office. The writ ordered the sherif of the country to make sure the defendant was at the trial and outlined the cause of the action, the legal wrong of which the claimant complained. Problem was it was expensive and inflexible. Unless the claimant could fit their action into the framework of an existing writ or at least show that it was similar to an existing writ they could not proceed with their case and had no remedy. The system of writs was therefore inflexible and the price of a purchase of a writ was expensive.

Answer 27

In the early years the only remedy which the common law courts could give was an award of damages. A court could not give specific relief that is to order defendant to carry out what they had promised to do, or restrain them from doing something unlawful.

Answer 28

Rules where elabarotate in bringing forward a case. Any technical breach might leave the claimant without redress, even if they had a substantially good case.

Answer 29

The rich and powerful were often able to escape justice by bribery of witnesses and juries, and that sherries were often biased in their favour.

Answer 30

Petition to the king himself for relief. This was on the basis that the king was the fountain of all justice and had his own power to make law and hear cases.

Answer 31

The lord chancellor. This was the Kings chief minister and head of secretarial establishment.

Answer 32

A churchman and spiritual adviser to the king - keeper of the Kings conscience. He was more concerned with persons carrying out their moral obligations than with applying the strict letter of the law, it was therefore on this basis that petitions were decided.

Answer 33

Eventually petitions were directed solely to the chancellor and dealt with solely by him.

Answer 34

The Lord chancellor.

Answer 35

Fairness and reflects the original role of the chancellor as a moral and spiritual leader.

Answer 36

There was a conflict between the two systems, this came to a head in the earl of Oxford case 1616. The result was a ruling that where there was a conflict between common law and equity then equity should prevail.

Answer 37

Because equity was based on morality or conscience, it's ruled tended to be too flexible, often leading to uncertainty. During the seventeenth century the court of chancery began to follow its own precedents in the same way that common law courts did, so equity, too, came to have its own fixed rules and principles.

Answer 38

They wished to invoke the rules and remedies of equity , involving extra cost and delay.

Answer 39

Made widespread changes in the administration of common law and equity. The common law courts and court of chancery were amalgamated in a single system. (The Supreme Court of judicature). Note that this system is now called senior courts of England and Wales since the Supreme Court came into being in October 2009. The principles and remedies of both common law and equity could be administered in any court and in the same action. The principle that equity should always prevail in the case of a conflict with common law was restated.

Answer 40

Completely fused into one set of rules and principles or whether the two are in some way still separate.

Answer 41

Gloss or supplement which offers an alternative solution to some legal problems.

Answer 42

- the law of trusts - specific performance ( a court compelling a person to carry out a promise which they have given to another ) - injunction ( a court order compelling a person to do something or prohibiting them from doing something. ) - promissory estoppel - subrogation - contribution

Answer 43

Trading agreements between merchants and the disputes which arose from them.

Answer 44

Merchants met at fairs and specious courts we're allowed to hear these cases often with a jury composed of merchants. The law they applied the law merchant was based upon mercantile customs and usages. These customs and usages were often international in character because trade itself was international and disputes often concerned merchants from different countries.

Answer 45

Much of the work of merchants courts.

Answer 46

Non consumer business matter so that much of the mercantile law came to be incorporated into the common law.

Answer 47

- the bills of exchange act 1882 - the sales of goods act 1893 (now the sales of goods act 1979) and - the marine insurance act 1906

Answer 48

The high court, the admiralty court and the commercial court.

Answer 49

Law which has been created in a formal way and set down in writing.

Answer 50

Parliament

Answer 51

The House of Commons, the House of Lords and as a formality the monarch.

Answer 52

Acts if parliament or statutes.

Answer 53

Statute law.

Answer 54

American constitution divides powers between federal authority which is congress and the individual states. Congress can't interfere in matters which are individual state level like insurance law. Also the U.S. Supreme Court can rule that legislation passed by congress is unconstitutional and outside their powers by the written constitution.

Answer 55

200 years or so.

Answer 56

In the UK the government has effective command as they have a majority in the House of Commons.

Answer 57

The government often consult interested parties and the public, this is done by publishing a green paper inviting responses to proposed changes in the law.

Answer 58

After considerations after a green paper, a white paper may be published giving advance notice of a more definite proposals.

Answer 59

Public and private

Answer 60

Contains law affecting the whole community, such as the theft acts which are part of a general criminal law.

Answer 61

Benefits a particular individual, organisation or group. Very often the promoter of a private bill is a local authority which is seeking power to make compulsory purchases of land for a new local development.

Answer 62

Lloyd's act 1982 and Insurance Brokers (Registration) Act 1977

Answer 63

A private members bill is one introduced by individual members of parliament rather than by government. Unless it has support by government it has very little chance of becoming law as government control the timetable of parliament and the subjects for debate and legislation.

Answer 64

- first reading - second reading - committee stage - report stage - third reading

Answer 65

Largely a formality, clerk of the house reads the title if the bill to make people aware of it, it is then printed and published.

Answer 66

General merits of the bill are debated in the house and a vote is taken as to whether it should proceed. To save time, sometimes the bill is referred to a second standing committee which recommends if bill should be read a second time. This procedure is automatically followed for public bills in the House of Commons unless 20 members object, and for all private bills.

Answer 67

Details of the bill are discussed by a standing committee which will usually consist of 20 to 30 members chosen to reflect strengths of various parties. At this stage amendments to the bill are proposed and (unless accepted by the government) are voted upon.

Answer 68

The bill which has been amended is reported to the house as a whole. The amendments may be debated and in some cases the bill may be referee back to the committee for further work.

Answer 69

Final opportunity for debate. In theory amendments may be proposed but in practice, only minor changes in wording are likely to be made.

Answer 70

Will go through a similar procedure in the House of Lords.

Answer 71

No, at most may delay its progress.

Answer 72

The royal assent (a mere formality now) and is afterwards referred to as an act or statute. The new law comes into force immediately after it receives royal assent.

Answer 73

Private bills

Answer 74

Tax, company law, employment, safety at work and road traffic.

Answer 75

One which repeals all previous legalisation on a subject send re-enacts it in one logically arranged statute. No new law is created by existing statutory enactments are brought under one umbrella. Two examples are the national insurance act 1965 and road traffic act 1988.

Answer 76

Sometimes the government not only consolidates current legislation but also includes principles from case law. As a result, usually the law on a particular topic including existing statue and case law is reduced to a single code.

Answer 77

- the bills exchange act 1882 - the partnership act 1890 - the sales of goods act 1979 (the law relating to the sales of goods was codified in the sales of goods act 1893 which was subsequently amended by a number of later acts. The legislation was then consolidated in the sales of goods act 1979, since when there have been further amendments. - the marine insurance act 1906 - consolidated previous legislation on marine insurance together with legal principle contained in around 2000 decided cases.

Answer 78

The law commission.

Answer 79

Progress has been slow.

Answer 80

Before it came into effect.

Answer 81

Generally viewed as unconstitutional as brings uncertainty into the law. Turns a wrongdoer into someone who previously acted within the law. Usually done to prevent blatant tax avoidance loopholes.

Answer 82

Act of indemnity.

Answer 83

Enabling acts (or parents acts) and rules made under the authority of these acts known as delegated or subordinate legislation.

Answer 84

Delegated legislation.

Answer 85

Most enabling acts which give ministers and their civil servants powers to enact delegated legislation, stipulate that the powers in question are to be excersised in the form of departmental regulations or orders. These are known collectively as statutory instruments.

Answer 86

Originally name given to monarchs private advisers. Now includes past and present members of the cabinet (senior government members) and various other eminent people.

Answer 87

When power of special importance is delegated by statute, such as power concerning constitutional matters.

Answer 88

3 members, and cabinet.

Answer 89

Bye laws, and minister.

Answer 90

- can be given to experts in relevant departments, these have the knowledge for all of the technical intricate details. - saves parliamentary time. Parliament will look at main framework but the fine detail can be sorted by others. - delegated legalisation is quicker. Useful in economic problems or emergency. - if an act of parliament has unforeseen difficulties, it can only be passed by an amending act which goes through the whole parliamentary process again. A statutory instrument however which proves to be defective can be quite easily amended or repealed by a further statory instrument.

Answer 91

- the bulk and lack of publicity of delegated legislation means nobody can possibly know what is contained in every statutory instrument, rule and order. This is likely inevitable whatever form the law takes however. - a lot of delegated lesiglation is done by civil servants who are unelected. They may also sub delegate as well which means the law is remote from parliament. This highlights the need for effective control.

Answer 92

Interested parties before making delegated legislation.

Answer 93

As effective as one might think because the sheer weight of delegated legislation makes it difficult for members to scrutinise it all thoroughly; the government is under no obligation to debate it.

Answer 94

It will not become law.

Answer 95

Resolutions allowing them to continue to exist.

Answer 96

Draw delegated legislation to the attention of parliament when there are good grounds for doing so. These grounds might include the fact that the instrument: - imposes a tax on the public - is retrospective In effect - uncertain in its meaning or - unusual in some other way

Answer 97

Act of parliament on any grounds.

Answer 98

Ultra vires, that is beyond the powers.

Answer 99

The delegated legislation will be void.

Answer 100

- does not confer powers to make unreasonable or uncertain rules - does not confer any power of sub delegation, for instance, it is assumed that where powers are conferred on a minister that power cannot be delegated by them to anyone else. - does not confer powers power to make retroactive rules - does not confer powers to infringe fundamental rights such as the right of personal liberty and - does not confer powers to make rules levying taxes

Answer 101

If a person upon whom a power has been bestowed has failed to carry out a prescribed procedure, for example, if they have not consulted interested parties before putting the legislation into force.

Answer 102

1. The interpretations act 1978 lays down certain rules of interpretation which apply to statue law. 2. Acts of parliament often contain interpretation sections in which important words and phrases are given a precise definition. 3. Acts of parliament have a preamble or long title setting out the general scope and purpose of the act.

Answer 103

- words used in the singular are deemed to include the plural and vice versa - the use of the masculine gender includes the feminine and vice versa and - the term 'person' is deemed to include artificial entities such as companies as well as human beings.

Answer 104

1. Literal rule 2. Golden rule 3. Mischief rule 4. Presumptions

Answer 105

Basically reading the literal way and possibly not the way parliament intended. Criticised by lawyers as against common sense.

Answer 106

The others

Answer 107

A dead person is not entitled to vote and of course has no legal rights of any sort once they cease to exist

Answer 108

- the noscitur a sociis rule , a general principle that a word must be determined by its context. - the ejusdem generis rule, under this rule the meaning of any general term depends upon any specific words which precede it.

Answer 109

Basically if the rules in a statue are applied strictly and would lead to an absurd result, and there is an alternative interpretation which avoids the absurdity the courts can choose the latter meaning and to assume that parliament did not intend the absurdity.

Answer 110

Offences against the person act 1861

Answer 111

Under this rule the judge will consider the meaning of the words in the act in the light of the abuse or 'mischief' which the act was intended to correct, and choose the interpretation which makes the act effective in suppressing this mischief.

Answer 112

Basically the stress offences act 1959 made it an offence for a prostitute to solicit men in a street or public place. In smith v Hughes (1960) a prostitute was hissing at men from a balcony. The men were in the street but prostitue was not, however she was still found guilty of an offence under this act. The judge basically said that the act was intended to stop people being harassed and solicited by prostitutes so her doing this from a balcony was essentially the same thing. Not a relevant distinction between the woman being on a balcony or standing in a doorway.

Answer 113

Interpretation of EU legislation

Answer 114

- not intended to create a strict criminal offence (I.e liability without criminal intention or fault) - is not intended to oust (do away with) the jurisdiction of the courts - is not intended to have retrospective effect - applies only to the UK - is not intended to infringe the requirements of international law - does not bind crown (i.e the government) and - it is not intended to interfere with vested (I.e existing and established) rights or allow confiscation of property without compensation.

Answer 115

Declaration of incompatibility.

Answer 116

English courts where necessary to adopt a purposive approach to interpretating domestic legislation.

Answer 117

That they would not otherwise have had in interpretating statutory provisions, the English courts are bound to take into account the judgements of the European court of justice.

Answer 118

At the bottom is the country courts, then high courts including 3 divisions (chancery, family and queens bench division), then court of appeal then Supreme Court.

Answer 119

Minor civil cases.

Answer 120

Circuit judge who usually sits alone.

Answer 121

Major civil cases, usually those involving claims for substantial sums of money.

Answer 122

Chancery division, family division and queens bench division.

Answer 123

Company matters, partnerships, trusts, mortgages and revenue matters.

Answer 124

Matters of family law including disputes about family property and mattes concerning children such as adoption and guardianship.

Answer 125

Perhaps the busiest sector of the high court with largest staff of judges. It includes a commercial court, admiralty court (which deals with shipping matters) and a technology and construction court. This queens bench division has jurisdiction over every type of common law civil action, the principal areas of which are contracts and torts.

Answer 126

Divisional court

Answer 127

Tribunals.

Answer 128

Sits alone. Although a divisional court will normally consist of two or more judges.

Answer 129

Court of appeal.

Answer 130

Five or seven.

Answer 131

Hears appeals from the lower courts only.

Answer 132

Supreme Court.

Answer 133

Houses of lords.

Answer 134

Northern Ireland.

Answer 135

- hears appeals on arguable points of law of general public importance. - concentrates on cases of the greatest public and constitutional importance. - maintains and develops the role of the highest court in e United Kingdom as a leader in the common law world. - maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world. -

Answer 136

Supreme Court.

Answer 137

To the Supreme Court, missing out the court of appeal in what is known as a leapfrog procedure.

Answer 138

5 to hear a case. With a greater sitting in on some occasions.

Answer 139

Reading later into this text about cases dating from before October 2009

Answer 140

At the bottom magistrates courts, then crown courts, then court of appeal (criminal) then Supreme Court.

Answer 141

Minor criminal offences (and some minor civil matters)

Answer 142

Crown court or high court.

Answer 143

Crown court.

Answer 144

Trial proceedings. (Usually a paper process) in the magistrates court.

Answer 145

Single judge and a jury, normally of twelve persons.

Answer 146

Civil cases, apart from certain exceptions such as libel proceedings.

Answer 147

Supreme Court - Justices of the Supreme Court Court of appeal - Lord Justices of Appeal High court, crown court for serious cases - High Court Judges (puisne ('lesser') judges) Crown court, county court - Circuit Judges County court, magistrates court - District Judges Crown court, sometimes sometimes country court - recorders, a part time post.

Answer 148

A decision in a previous legal case where the facts were similar to the case before the court.

Answer 149

Stare decisis - let the decision stand.

Answer 150

Precedents were only persuasive back a long time ago. Nowadays under binding precedent, a judge is obliged to follow the decision in a previous similar case.

Answer 151

Consistent and reliable system of reporting cases.

Answer 152

Earlier cases where the facts were the same.

Answer 153

Principle established in it.

Answer 154

Ratio decidendii (literally, the reason for deciding.)

Answer 155

- the material facts of the case - the decision of the judge or judges - the reason for the decisions

Answer 156

... "Who then in law is my neighbour? The answer seems to be - persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind in the acts or omissions which are called in question.

Answer 157

Describe it briefly.

Answer 158

Obiter dicta (things said by the way)

Answer 159

Supreme Court or its predecessor the House of Lords.

Answer 160

A judge is only bound by decisions made in a court higher than their own, or in some cases a court of equal standing.

Answer 161

Binding on all lower courts.

Answer 162

Descions. (London street tramways v London county council 1898

Answer 163

Where too rigid an adherence to precedent would lead to injustice in a particular case or restrict the proper development of law, the house could depart from a previous descision when it seemed right to do so.

Answer 164

Used quite sparingly.

Answer 165

Binding on lower courts I.e high court and county courts. Also generally bound by its own decisions unless two such descions conflict, or if it's own previous descision is inconsistent with a descison of the Supreme Court or the judicial committee of the privy council. We have already noted that the court of appeal is bound by the descions of the Supreme Court.

Answer 166

Of the high court sitting alone, and on magistrates courts but not on crown courts.

Answer 167

On any court, they are bound by decisions of all higher courts.

Answer 168

Binding on all lower courts.

Answer 169

Divisional court of the high court. Descions of the crown courts themselves are not binding on any court and are at most persuasive.

Answer 170

Appeal (civil) and vice versa. But it is bound by the descions of the Supreme Court.

Answer 171

Officially and have no binding force.

Answer 172

Just read.

Answer 173

A number of countries have left the commonwealth and others, while remaining in the commonwealth have established a Supreme Court of their own from which their is no appeal.

Answer 174

- ecclesiastical and prize cases (disputes concerning captured shows in times of war) and - tribunals of the medical, dental and optical professions. It's decisions in these cases are part of English law and are binding.

Answer 175

The original judgement restored. No change in law need necessarily result from the reversing of a case.

Answer 176

People would never be sure that a particular piece of litigation had ever ended.

Answer 177

Overrulled. In this way, neither party to the 1986 decision would have a right to reopen the case.

Answer 178

Not in a position to overrule it.

Answer 179

Descision. ... Such an opinion is obiter dictum and the earlier case,therefore, still stands. However, its authority may be weakened as a result of the disapproving and this may help to lead to the overruling of the case in the future.

Answer 180

See above.

Answer 181

Non binding precedents.

Answer 182

- decisions made in lower courts or courts of equal standing - decisions of courts outside the English system (e,g judicial committee of the privy council, Irish, Scottish, commonwealth and united state courts - obiter dicta (especially of senior judges in high level decisions) and - textbooks, learned treaties and the law of other jurisdictions (e,g Roman law) - these sources are very rarely used and only in cases where there is no other authority binding or persuasive.

Answer 183

- certainty. Judges can't just do any descision they like, introduces a level of certainty. - allows for the possibility of development and growth. Although the courts cannot create entirely new rules, the scope of existing precedents can be extended to new situations which arise. - where a precedent is less favoured by the courts, its scope can be restricted by the process of distguinshing. This means that precedent allows for an element of flexibility (although this also introcuded uncertainty. Balance needed) - the system of precedent gives English law a wealth of decisions snd rulings. Since all the rules of English case law derive from real situations which have come before the courts, the descions dealt with practical matters.

Answer 184

- although precedent has certainty, also makes things rigid as rules not easy to change and must be done through legislation or through overruling by a higher court. - bulk and complexity of case law makes it harder to find. Things may get left out. - slow in development. Depends entirely on litigation. The courts can't imagine cases they have to wait for a case to be litigated which may not occur for years. - the principle of law contained in some descions can be obscure. For example all five judges in a Supreme Court case might come to the same decision but each give different reasons for doing so. In this instance the region decidendi of the case will be unclear.

Answer 185

Law reporting.

Answer 186

Tells us that the case is reported in the first volume of the queens bench division, for the year 1893 and that the report of the case begins at 256. The names are those of the parties involved with the claimant placed first and the defendant second. If the case goes to appeal the parties are known as the appellant and the respondent.

Answer 187

AC in the citation.

Answer 188

Law reports. Which enables accounts of important decisions to be available quickly.

Answer 189

All England reports

Answer 190

Various other private reports of a specialist nature. An important example fro, the point of view of insurance students and practitioners is Lloyd's reports which specialise in reporting. Non consumer (business) (including insurance) cases.

Answer 191

Brief reports of cases also appear regularly in the times, independent, guardian (and some other serious newspapers) while the courts are in session. Sometimes the cases described are not reported elsewhere, it's also possible to access law reports (including many which appear in none of the major series) through online computer information services such as lexis.

Answer 192

Source of law.

Answer 193

Rights which the law will support.

Answer 194

From building houses on part of a beach which he owned when local fishermen to established an ancient customary right to dry their nets on the beach.

Answer 195

Local residents to engage in sports and pastries in an area in the centre of new Windsor. There was some evidence to show that this custom dated back to 900AD

Answer 196

A decision in a previous legal case where the facts were similar to the case before the court.

Answer 197

Stare decisis - let the decision stand.

Answer 198

Precedents were only persuasive back a long time ago. Nowadays under binding precedent, a judge is obliged to follow the decision in a previous similar case.

Answer 199

Consistent and reliable system of reporting cases.

Answer 200

Earlier cases where the facts were the same.

Answer 201

Principle established in it.

Answer 202

Ratio decidendii (literally, the reason for deciding.)

Answer 203

- the material facts of the case - the decision of the judge or judges - the reason for the decisions

Answer 204

The custom must have existed since the beginning of legal memory which is arbitrarily fixed as the year 1189 (the first year of the reign of Richard I) however it will be presumed that a custom has been in existence since that has been in existence since that year unless there is evidence to prove the contrary.

Answer 205

There must be proof that custom has been observed continuously. This does not mean that it has been exercised continuously, merely that the right to exercise it has existed without interruption.

Answer 206

The custom must not be unreasonable - a matter which the court must decide.

Answer 207

The custom must be certain as regards the nature of the activity of right in question, the persons who are entitled to benefit from it and the locality to which it applies.

Answer 208

The custom must have been exercised peaceful, openly and as of right.

Answer 209

The people affected by the custom must recognise it as binding upon all of them. If two customs are inconsistent with each other then neither can be legally recognised.

Answer 210

Statute law is supreme and will overrule any custom which is inconsistent with it.

Answer 211

Never put it into words.

Answer 212

The defendant landlord gave the claimant who was the tenant on his farm six months notice to quit. During that time Hutton continued to work on the farm in accordance with usual practice and then sued for work and materials expended during the 6 months. It was held that he was entitled to be paid even though there had been no express agreement between the parties on this point. In the course of the judgement it was said that: This has been done on the principle of the presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages.

Answer 213

- the European coal and steel community (ECSC) formed by the treaty of Paris in 1952 - the European (economic) community (EEC), formed by the treaty of Rome in 1957 - the European atomic energy community (EURATOM), formed by a further treaty signed at Rome in 1957

Answer 214

The act amended the treaty of Rome (the eec treaty) and committed members of the communities to the establishment of a single internal market by 31st December 1992. It also amended voting procedures in the council and allowed many more descions to be taken by a majority vote rather than requiring unmanly amongst the representatives of the member states. This speeded the development of the communities. The European assembly was officially renamed the parliament and given increased powers. The act also introduces the first formal reference to the European monetary system. (EMS)

Answer 215

- the Maastricht treaty amends the treaty of Rome (EEC) treaty and alters its name to the EC treaty. - the Maastricht treaty is a new treaty in its own right and it mainly a statement of political intent.

Answer 216

- the treaty of European Union (Maastricht) - the European community treaty (Rome) - the European coal and steel community treaty (Paris) - the European atomic energy community treaty (Rome)

Answer 217

Matters concerning the treaty of Rome.

Answer 218

- a common foreign and security policy to be pursued by the Union. - a timetable is established for progress towards economic and monetary union - this involves the irrevocable fixing of exchange rates prior to the introduction of a single currency, the euro. - a single monetary policy and a European Central Bank. - new fields of activity are introduced, e,g culture, public health and consumer protection. - every person holding the nationality of a member state is now a citizen of the union with a right to vote and stand in the municipal elections in any member state in which they are resident.

Answer 219

Economies of sale and stimulating competition. This should enable Europe as a whole to compete effectively with economic giants such as Japan and the U.S.

Answer 220

Common market, economic Union, common policies or activities. Environment, social protection, employment, raising standard of living and quality of life and social cohesion and solidarity among member states.

Answer 221

Allowing free movement of people, goods, services and capital within the community. Harmonisation of law in key areas, especially in relation to trade and commerce.

Answer 222

Economic matters e.g agriculture, transport, trade, commerce, finance and business in general.

Answer 223

- council of European communities - commission of the European community. - European Parliament. - European court of justice.

Answer 224

This body has greatest legislative power. It consists of representatives of the member states drawn from governments of the member states. The representative is normally the minister responsible for the subject which is under discussion. (e.g agriculture, finance, transport or trade.) each state holds the presidency of the council for 6 months. The council is convened by the president or at the request of one of its members, or the commission.

Answer 225

The commission is the European civil service. Each member state is represented by one commissioner or two in the case of larger member states. A president is nominated by common accord of member state governments, Each commissioner has his own cabinet of personal staff. The commission employs about 20,000 civil servants. The commission has the power to initiate legislation and complete it in some cases, and administers some of the community funds. The commission may also initiate legal proceedings against a member state that fails to fulfil community law.

Answer 226

Members of the European Parliament are now directly elected in elections held at five year intervals. With the umber of MEPs elected varying according to the size of the member states. Meetings are held in Strasbourg, Brussels, and Luxembourg and most work is carried out by standing committees. The Parliament has supervisory powers (zero example it may in theory, remove the whole commission via a vote of censure). Unlike the UK Parliament, the European Parliaments legislative powers are limited and it has little or no formal control over delegated legislation passed by the commission. However it's powers were increased somewhat in the Maastricht treaty and the parliament does have substantial powers in relation to community budget.

Answer 227

Based in Luxembourg, it is the ultimate court of appeal on matters of European law. The court sits in chambers of three or five judges or in a plenary sessions of seven to seventeen. Judges have renewable terms of six years, three years in the case of president) the judges post hearing deliberations are secret. The French language is used for discussion and one collegiate e,g collective judgment is given, which all the judges sign. It should be noted that the European court is not obliged to follow percent after the fashion of an English court.

Answer 228

- treaties - regulations - directives - decisions - recommendations and - opinions

Answer 229

Best regarded as the constitution of Europe, setting out the basic framework and fundamental principles of European law. (Such as the right to free movement of goods, people, services and capital.

Answer 230

Made by the council or commission which have general application. They are automatically binding in their entirety on all member states without any action by national governments of legislatures And, for this reason, are sometimes described as self enacting.

Answer 231

Directives of the council or commission are binding on member states to which they are addressed (normally to all member states) as to the result which is to be achieved. However, the method of implanting the law contained in the directive is left to each member state. In the UK implementation is through primary or subordinate legislation (e,g an act of Parliament or delegated legislation of some sort) directives are used as a form of general legislation for the community.

Answer 232

Member state which fails to implement a directive can be sued for damages by an individual who suffers loss as a result of the failure to implement (Frannocvich v Italian Republic 1991)

Answer 233

Descions do not have general application and are binding only upon those to whom they are addressed.

Answer 234

Recommendations and opinions have no binding force and are advisory only. An example is the 1991 recommendation of the commission on the education, training and professional standards of insurance brokers.

Answer 235

European community law is to take affect in English law.

Answer 236

Has been noted, the courts will interpret such legislation to give effect to EC obligations.

Answer 237

Financial services and markets act 2000

Answer 238

Insurance company becomes insolvent.

Answer 239

Motor vehicles.

Answer 240

Harmonise key aspects of the law and practice of motor insurance across Europe. Harmonisation is particularly important, given that motor vehicles provide one of the main methods of moving people and goods between the member states, and that motor claims often involve people from different countries.

Answer 241

Three year period for implementation was allowed.

Answer 242

Product liability insurance

Answer 243

Personal insurances in general.

Answer 244

Common law.

Answer 245

Source of law in its own right.

Answer 246

Where possible.

Answer 247

Bound by this obligation.

Answer 248

Reach a descions which is inconsistent with them.

Answer 249

May be involved in disputes about taxation or matters of company law, or about the buildings and other property they own.

Answer 250

A dispute with their own employees about pay, working conditions, pension rights or other employment related matters

Answer 251

Insurance policies they issue.

Answer 252

- dispute between the insurance company and sometimes broker and the olicyholder. Most of these cases involved disputed claims, with the insurers arguing that they are not liable to pay (or not obliged to pay as much as the policyholder demands) and the policyholder insisting otherwise. - disputes between insurers themselves. Often these disputes are about the sharing of claims, either between two or more insurers or between insurers and reinsurers. - cases in which insurance companies are seeking to defend thier own policyholders, who are themselves being sued for compensation by third parties, that is, liability insurance claims.

Answer 253

Full trial.

Answer 254

Lord Woolf in his report 'access to justice' (1996). The reforms were aimed at improving a system that was widely seen as being too expensive, slow, uncertain and complicated.

Answer 255

Their value and complexity.

Answer 256

dispute resolution.

Answer 257

more responsibility for managing cases

Answer 258

Technology.

Answer 259

The high court and the county court.

Answer 260

Court and for the length of trials.

Answer 261

26 April 1999

Answer 262

An early date.

Answer 263

Facilitate negotiation and if possible avoid court action altogether. It is also intended to assist parties to indentify the real issues in dispute at an early stage. To help achieve this, pre action protocols Jane been issued for different types of claim.

Answer 264

Lists of things that the parties are expected to do before they start any legal action.

Answer 265

Bodily injury

Answer 266

Reasons for denial and enclosing the relevant documentation.

Answer 267

Required and should try to agree to use one expert.

Answer 268

Pay extra interest on top of the damages?

Answer 269

To start the action.

Answer 270

The high court.

Answer 271

The value of the claim is more than £100,000

Answer 272

£50,000 or more.

Answer 273

High court.

Answer 274

Allocation stage.

Answer 275

Particulars of claim.

Answer 276

Amount of money that is being claimed.

Answer 277

The defendant has a further 14 days to serve a defence.

Answer 278

Pay the amount claimed plus costs (a judgement in default)

Answer 279

- small claims track - the fast track - the multi track

Answer 280

Normally used for disputes up to £10,000, except for personal injury cases housing disrepair cases, where the limit is usually £1,000

Answer 281

Used for straightforward disputes where the amount claimed is more than £10,000 but less than £25,000

Answer 282

Used for claims in excess of £25,000 or complex cases under this amount.

Answer 283

With the consent of all the parties, to a lower track.

Answer 284

Alternative dispute resolution.

Answer 285

Result in cost penalties.

Answer 286

No reasonable grounds for bringing or defending the claim.

Answer 287

Small claims track.

Answer 288

To have a relatively cheap and simple procedure and, for this reason, no expert evidence is allowed without the permission of the court and the use of lawyers is discouraged.

Answer 289

Are used quite frequently.

Answer 290

Both parties explain important points.

Answer 291

Fast track.

Answer 292

Running up costs.

Answer 293

Expert (jointly instructed by the parties) being allowed.

Answer 294

Multi-track case.

Answer 295

Conclusion.

Answer 296

Directions and review the progress of the case.

Answer 297

Part 36 offer and part 36 payment.

Answer 298

Compromise.

Answer 299

They win the case.

Answer 300

Court can order the person to pay any costs incurred by The other after the date when could have accepted the offer.

Answer 301

Money offered.

Answer 302

Will have to pay the defendants costs as well

Answer 303

In insurance context, was available only for clinical negligence claims, having been withdrawn for personal injury claims in 1999

Answer 304

Civil (non-family) case.

Answer 305

Success fee or uplift of up to 100% of the agreed fee

Answer 306

The success fee.

Answer 307

Claimant receives.

Answer 308

Success fee to the winner.

Answer 309

The other side. To protect against this it is possible to Insure against losing a case and there are two types of this insurance. Before the event and after the event.

Answer 310

Usually taken out without any particular piece of litigation in mind. Usually an annual cover which nowadays is often written as an add on benefit to so some other insurance such as household or motor.

Answer 311

Cheaper than after the event.

Answer 312

Solicitor.

Answer 313

Taken out when embarking on a parrot fulmar piece of litigation which covers the risk of losing, including opponents costs and, in some cases, other expenses such as counsels fees.

Answer 314

Expensive than before the event legal expenses insurance.

Answer 315

Other costs, provided of course the claimant wins the case.

Answer 316

Recoverable from the other side.

Answer 317

Legal said sentencing and punishment of offenders act.

Answer 318

Wide areas of law including met private family law, social welfare law, clinical negligence, education and employment. The key element of the act is in part 2 which abolishes the recoverability of success fees and associated costs in conditional agreements for all cases safe for those involving the fatal-asbestos related disease mesothelioma.

Answer 319

Insurance claims

Answer 320

New rules allow contingency fees or damaged based agreements. Under these rules, lawyers will be able to conduct litigation in return for a share of the damages, but the defendant will be liabile for costs only on the conventional basis: the claimant will have to pay any shortfall out of damages. The cap on amount of damages that can be taken as a contingency fee is 25% for personal injury; 35% for employment; 50% for all other claims.

Answer 321

Uplift in general damages for non - pecuniary loss. (Pain and suffering, loss of amenity.)

Answer 322

First case management conference.

Answer 323

Be restricted to the budget last approved or agreed.

Answer 324

Claimants will be awarded costs if successful but will not have to Pay the defendants costs if they lose.

Answer 325

Where a claimant has failed to best s defendants part 36 offer, or where claim is fraudulent or stuck out for example as an abuse or process. This means that defendants to personal injury claims will not normally be able to recover costs even where the action is successfully defended.

Answer 326

Solicitors and barristers (known as advocates in Scotland)

Answer 327

General practitioners or specialists. Though in the case of lawyers the division is not so clear cut.

Answer 328

Solicitor.

Answer 329

Major corporation.

Answer 330

Advocacy rights in the higher courts also (including of course insurers)

Answer 331

Commerce or industry.

Answer 332

The solicitors regulation authority.

Answer 333

Members of the public.

Answer 334

Advocacy service.

Answer 335

General council of the bar of England and Wales, commonly known as the bar council (faculty of advocate in Scotland) regulation of the profession is achieved through the bar standards board.

Answer 336

Advice of a barrister specialising in the are of law in question.