Chapter 1 - Law and Legal Systems

Question 1

What is meant when we speak about, “the law”?

Answer 1

General rules which governs and controls behaviour of people in the country or state in which we live.

Question 2

Legal rules are always backed by…

Answer 2

Sanctions

Question 3

Some of our law and particularly criminal law is based on morality, however, much of our law is there to..

Answer 3

Regulate the economy and ensure life is orderly and civilised.

Question 4

English law applies to what countries?

Answer 4

England and Wales, also generally Northern Ireland. English law is also one of the major systems of law in the world and has been adapted in the U.S. And many commonwealth countries including Canada, Australia, New Zealand and many states in Africa and the Far East.

Question 5

The Scottish legal system, is different to England’s because?

Answer 5

Scottish legal system is different because it is more akin to legal system of continental countries and like them is based on Roman law.

Question 6

Despite Scotland and England having slightly different legal systems, the countries have very much in common and legislation…

Answer 6

By the UK Parliament applies to both countries.

Question 7

Civil law dominates most of continental Europe and is based on…

Answer 7

Laws of Ancient Rome.

Question 8

Explain how Civil law must not be confused with civil law.

Answer 8

Civil law refers to a legal system based on laws of Ancient Rome whereas civil law(private law) is part of English law and used in contrast with public law in English law.

Question 9

What is public law?

Answer 9

Part of English law. Public law is concerned with legal structure of the state and relationships between the state and individual members of the community. It also governs the relationship between one state and another.

Public law includes constitutional law, administrative law and criminal law.

Question 10

What is constitutional law?

Answer 10

Constitutional law is part of public law in English law.

Constitutional law is about the structure of main instructions of government and their relationships with each other, including House of Parliament in UK and that between central and local government.

Question 11

What other areas does constitutional law look at?

Answer 11

Constitutional law also looks at making of treaties with foreign states and the status, function and powers of the monarch, MP’s, government ministers, the judiciary, the civil service and the armed forces.

Question 12

What is administrative law?

Answer 12

Administrative law is part of public law in English law.

Administrative law concerns the legal relationship between private citizens and the various agencies of local and central government and the impact of their activities on ordinary individuals.

Question 13

What are some examples of administrative law?

Answer 13

The granting of licenses for various trades and professions, health and education, the power of local boards and authorities in relation to highways, taxation and compulsory acquisition of land, questions of local rating.

Question 14

Administrate law which is part of public law is also considered a branch of what other type of public law?

Answer 14

Constitutional law.

Question 15

What is criminal law?

Answer 15

Criminal law is part of public law in English law.

Criminal law is concerned with the control of behaviour which harms or threatens the peace and stability of the community.

Question 16

Why is criminal law part of public law and not private/civil law?

Answer 16

Crimes such as murder do affect individual victims, however if these crimes go unchecked, they will threaten the stability of society as a whole. Crimes like murder are public wrongs punishable by the state.

Question 17

What is the other type of law in English law that is not public law?

Answer 17

Private/civil law.

Question 18

What is private law?

Answer 18

Private or civil law governs the relationship between individuals. Private law is more commonly known as civil law from the Latin word citizens.

Question 19

What are some of the most important branches of private law?

Answer 19

• the law of contract
• the law of torts
• the law of trusts
• the law of property
• the law of succession
• family law

Question 20

The legal rules which govern insurance are part of…

Answer 20

Private law, many from the law of contracts.

Question 21

The law of torts is particularly relevant to what form of insurance?

Answer 21

Liability insurance

Question 22

English law has certain characteristics which distinguish it from other legal systems and particularly those from continental Europe. These include:

Answer 22

• age and continuity
• little codification
• judge made law
• independence of the judiciary
• little influence made by Roman law
• contentious procedure
• no written constitution

Question 23

Explain the English law characteristic - age and continuity.

Answer 23

English law has a long history and has developed without interruption over 900 years.

Many statutes go back more than 500 years and are still good examples today, including on trespass.

Question 24

Explain the English law characteristic - little codification

Answer 24

Basically, in many other countries, the law has been largely condensed to a series of written codes, containing the whole of a law on a particular subject.

A legal code is a collection of written laws arranged to avoid inconsistency and overlapping.

Some parts of English law have been codified including a fair portion on criminal law. However, codification of private law has only occurred in a few areas only such as laws relating to partnerships, the sales of goods, bills of exchange and marine insurance.

Question 25

Explain the English law characteristic - judge made law

Answer 25

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.

Question 26

Explain the English law characteristic - independence of the judiciary

Answer 26

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.

Question 27

What has been set up to increase the transparency and impartiality of the appointment process for senior judges?

Answer 27

A judicial appointments commission.

Question 28

Members of the legal profession including barristers and solicitors are not state officials and must, in accordance with the traditions of their profession give…

Answer 28

Advise or assistance to any client regardless of political allegiance.

Question 29

Explain the English law characteristic - contentious procedure

Answer 29

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.

Question 30

In contentious procedure, the judge and sometimes jury should…

Answer 30

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

Question 31

In a civil/private case, the claimant has the burden of proving his case on…

Answer 31

The balance of probabilities.

Question 32

In criminal proceedings guilt must be proven…

Answer 32

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.

Question 33

What is the inquisitorial procedure?

Answer 33

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.

Question 34

What is the only court in England that employs an inquisitorial procedure?

Answer 34

Coroners courts.

Question 35

What does the coroners courts look into?

Answer 35

Violent, unnatural or suspicious death.

Question 36

New rules of civil procedure which came into force in April 1999 (The civil procedure rules) could be said to signal a gradual change in the role of the English courts which now have more extensive powers to manage cases which come before them, as of yet however there has been….

Answer 36

No large scale shift towards the continental system.

Question 37

Explain the English law characteristic - no written constitution

Answer 37

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.

Question 38

Why do many countries have a written constitution?

Answer 38

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.

Question 39

Although the UK does not have its own bill of rights, it is party to the European convention for the protection of human rights and fundamental freedoms and recognises that the right of its citizens to take grievances to the European court of human rights in Strasbourg. Many convention rights have been incorporated into English law by the ?????? ????? ???. New legislation presented to parliament must now include a declaration as to whether it is compliant with the protected convention rights.

Answer 39

Human rights act 1998

Question 40

Explain the English law characteristic - rule of law

Answer 40

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.

Question 41

The term common law can be referred to in the course book in 4 different ways, explain these:

Answer 41

• 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.

Question 42

Explain the origins of early local law.

Answer 42

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.

Question 43

During the development of common law the Normans sought to establish a strong central government and administration to reinforce their hold on the country.

Explain what happened due to this

Answer 43

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.

Question 44

How did travelling judges develop?

Answer 44

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

Question 45

What happened due to travelling judges secreting the best customary rulings and applying them everywhere?

Answer 45

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

Question 46

At the time of travelling judges there was very few ??????? And judges looked to previous judgements in….

Answer 46

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

Question 47

The doctrine of ??????? ??????? (??????? ??? ?????? ?????) was the beginning of the system of judicial precedent which exists today.

Answer 47

Stare decisis (let the decision stand)

Question 48

Equity is sometimes described as….

Answer 48

A gloss or supplement to the common law.

Question 49

Equity is best understood as being…

Answer 49

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

Question 50

Equity developed some of the shortcomings in common law. Explain what the defect was with the system of writs.

Answer 50

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.

Question 51

Explain the common law defect which equity sought to fix, limited remedies.

Answer 51

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.

Question 52

What was the common law defect, procedure, that equity looked to fix?

Answer 52

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.

Question 53

Why was corruption a common law defect?

Answer 53

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.

Question 54

If someone was dissatisfied with the common law, what could they do?

Answer 54

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.

Question 55

If someone petitioned to the king, who would it get passed to?

Answer 55

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

Question 56

Who was the Lord chancellor?

Answer 56

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.

Question 57

Initially the Lord chancellor has to speak with the Kings council and have their consent however…

Answer 57

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

Question 58

In 1474 a court of chancery distinct from the Kings council and the royal common law courts was formally established and was presided over by …

Answer 58

The Lord chancellor.

Question 59

The system of rules developed and applied in the court of chancery become known as …

Answer 59

Equity

Question 60

Equity literally means… And reflects…

Answer 60

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

Question 61

By the sixteenth century the influence of the court of chancery was widespread and its jurisdiction became a threat to that of common law courts. What ultimately happened and why?

Answer 61

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.

Question 62

What happened in the seventeenth century with regards to equity and what was the findings?

Answer 62

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.

Question 63

In the seventeenth century, equity and common law operated alongside each other. This meant that a claimant who lost their case in the common law courts might have to start their action all over again in the court of chancery if…

Answer 63

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

Question 64

What did the judicature acts 1873 - 75 do?

Answer 64

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.

Question 65

Legal writers disagree as to whether the common law and equity are…

Answer 65

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

Question 66

Equity unlike common law can not stand alone. Common law is a complete system whereas equity is merely a …

Answer 66

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

Question 67

The principles and remedies which equity has given to our legal system include:

Answer 67

• 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

Question 68

With regards to law merchants, the courts gave little attention to the increasing number of …

Answer 68

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

Question 69

What was set up for merchants?

Answer 69

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.

Question 70

What did the court of admiralty take over?

Answer 70

Much of the work of merchants courts.

Question 71

From the seventeenth century onwards, the common law courts generally became more concerned with ….

Answer 71

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

Question 72

Some parts of the law merchant were, ultimately enacted as statutory codes including:

Answer 72

• 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

Question 73

Although there is now no separate law merchant, there are two courts within the queens branch division of the high court. These are the …. And …. And ……Which deal largely with the types of cases which have their origins in the law merchant.

Answer 73

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

Question 74

What is legislation?

Answer 74

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

Question 75

In England, who is the only body able to make general legal rules?

Answer 75

Parliament

Question 76

What does parliament consist of?

Answer 76

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

Question 77

The principal form which parliamentary legislation takes is….

Answer 77

Acts if parliament or statutes.

Question 78

Legislation passed by parliament is sometimes called…

Answer 78

Statute law.

Question 79

As UK parliament is the supreme law making body there is, in theory there is no limits to its law making powers. Why and how is US different?

Answer 79

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.

Question 80

Statue law although supreme has only seen major importance in the last …

Answer 80

200 years or so.

Question 81

Why does the power to legislate rest almost completely with the government?

Answer 81

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

Question 82

With regards to new legislation, what is a green paper?

Answer 82

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.

Question 83

With regards to new legislation, what is a white paper?

Answer 83

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

Question 84

Once the government has firmly decided to legislate the new law will be drawn up (but not passed) in the form of a…

Answer 84

Bill

Question 85

Bills may either be ?????? Or ??????? And be known as ?????? Or ?????? Acts respectively

Answer 85

Public and private

Question 86

What is a public act?

Answer 86

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

Question 87

What is a private act?

Answer 87

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.

Question 88

What are two private acts relating to insurance?

Answer 88

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

Question 89

How does a private members bill differ to a private bill?

Answer 89

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.

Question 90

What are the titles of the states for a public bill?

Answer 90

• first reading
• second reading
• committee stage
• report stage
• third reading

Question 91

What is the first reading for enactment of a public bill?

Answer 91

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.

Question 92

What is the second reading in the enactment of a public bill?

Answer 92

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.

Question 93

What is the committee state in the enactment of a public bill?

Answer 93

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.

Question 94

What happens during the report stage in the enactment of a public bill?

Answer 94

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.

Question 95

What is the third reading stage of the enactment of a public bill?

Answer 95

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

Question 96

If a bill survives all of the stages in the House of Commons it…

Answer 96

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

Question 97

Does the House of Lords have the power to reject a public bill?

Answer 97

No, at most may delay its progress.

Question 98

Once a bill has passed both the House of Lords and the House of Commons, the bill receives…

Answer 98

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.

Question 99

If a public bill has not completed all its stages during s particular session of parliament or when parliament is dissolved it lapses. It must start its passage anew during the next season or be dropped completely. This does not apply to…

Answer 99

Private bills

Question 100

The law gets complex and disorganised and is often tidied up by parliament. This is particularly the case where legislation is passed frequently such as…

Answer 100

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

Question 101

What is a consolidating act?

Answer 101

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.

Question 102

What is a codifying act?

Answer 102

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.

Question 103

Give some examples of non consumer business law codified:

Answer 103

• 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.

Question 104

Which body is concerned with consolidation and revision of statue law?

Answer 104

The law commission.

Question 105

The law commission has a general role of viewing English law as ahold and recommending ways in which it can be updated, simplified and developed in a systematic way. Codification, which is part of the process,many increase as a result of commissions works although…

Answer 105

Progress has been slow.

Question 106

Retroactive legislation is legislation which affects acts done or rights acquired …

Answer 106

Before it came into effect.

Question 107

How is retroactive legislation viewed and why is it usually done?

Answer 107

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.

Question 108

Retrospective legislation has some,times been used to legalise actions which were illegal at the time in order to protect people who acted properly but who nevertheless committed a technical breach of the law. An act,passed for this latter purpose is known as an…

Answer 108

Act of indemnity.

Question 109

Parliament often delegate legislation. They will lay the general framework of rules and and leave the rest down to civil servants I.e government officials working in the appropriate…

Answer 109

Ministry.

Question 110

Acts which confer such power to delegate legislation are called…

Answer 110

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

Question 111

Acts of parliament (primary legislations) has exactly the same legal force as …

Answer 111

Delegated legislation.

Question 112

What is a statutory instrument?

Answer 112

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.

Question 113

What is the privy council?

Answer 113

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

Question 114

When is an order of council conferred on the privy concil?

Answer 114

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

Question 115

An order in council is drafted by a minister and comes into force when approved by a meeting of the privy council where at least ? Members are present. The powers in question are effecirlvey excersised by the ??????

Answer 115

3 members, and cabinet.

Question 116

Statutory authority may be given to certain bodies, particularly local authorities to make ???-???? Which are of local application. They require the approval of the appropriate ???????

Answer 116

Bye laws, and minister.

Question 117

What are the advantages of delegated legalisation?

Answer 117

• 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.

Question 118

What are the disadvantages of delegated legislation?

Answer 118

• 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.

Question 119

When an enabling act which grants power to make delegated legislation is passed, parliament is able to limit and control the amount and power which will be transferred under the act.

Furthermore the enabling act may also provide that the person to whom the power is delegated must consult …

Answer 119

Interested parties before making delegated legislation.

Question 120

The enabling act will often provide that the delegated legislation must be laid before parliament for ?? Days before it comes into effect.

Answer 120

40

Question 121

Delegated legislation must be laid before parliament for 40 days before it comes into effect, in some cases members of parliament have no power to change the legislation during this period (although they are obviously made aware of it)

Whereas in other cases either house may pass a resolution to annul it during the 40 days. In practice this latter power may not be…

Answer 121

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.

Question 122

In other cases the enabling act may stipulate that each House of Parliament must pass a resolution approving the instrument, in which case the government must find time for it to be debated, otherwise…

Answer 122

It will not become law.

Question 123

Certain statutory instruments cannot continue in force unless both Houses of Parliament pass…

Answer 123

Resolutions allowing them to continue to exist.

Question 124

There are a number of committees which have the ask of scrutinising delegated legislation, of particular importance is the joint committee on statutory instruments of the Supreme Court and the House of Commons. The task of the committee is to …

Answer 124

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

Question 125

The British constitution does not allow the courts to challenge the validity of an …

Answer 125

Act of parliament on any grounds.

Question 126

Delegated legislation can be challenged if it is …

Answer 126

Ultra vires, that is beyond the powers.

Question 127

If a minister or any other person to whom power has been delegated exceeds the powers granted in the enabling act…

Answer 127

The delegated legislation will be void.

Question 128

It is assumed that the enabling act, unless it contains clear words to the contrary:

Answer 128

• 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

Question 129

What is procedural ultra vires?

Answer 129

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.

Question 130

What are three statutory aids?

Answer 130

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.

Question 131

What does the interpretation act 1978 set down?

Answer 131

• 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.

Question 132

What are the names of the common law rules which judges use for helping with interpretation?

Answer 132

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

Question 133

What is the literal rule?

Answer 133

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

Question 134

The literal rule takes precedent over..

Answer 134

The others

Question 135

The whitely v chapell (1869) the defendant had voted in the name of a person who had died and was accused of impersonating ‘any person entitled to vote’ at an election, which was an offence under electoral law. However he was found not guilty because…

Answer 135

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

Question 136

What are the two subsidiary principles to the literal rule?

Answer 136

• 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.

Question 137

What is basically the golden rule?

Answer 137

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.

Question 138

With regards to the golden rule see the

Answer 138

Offences against the person act 1861

Question 139

What is the mischief rule?

Answer 139

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.

Question 140

Explain the street offences act 1959 and smith vs Hughes (1960)

Answer 140

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.

Question 141

Mischief rules do not apply to…

Answer 141

Interpretation of EU legislation

Question 142

What are some of the presumptions of a statute?

Answer 142

• 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.

Question 143

Many of the rights set out in the European convention of human rights act 1988 under s3 of that act the courts are obliged where possible to interpret statutory provisions in a way which is compatible with the rights protected in the human rights act. Where such an interpretation cannot be reached the higher courts may issue a ?????? ?? ????????. This does not however invalidate the statutory provision, nor does it place the government or parliament under any legal obligation to chance the offending provision.

Answer 143

Declaration of incompatibility.

Question 144

European community law now has a fundamental influence on English law. Under 2(4) of the European communities act 1972 any domestic legislation passed or to be passed is to be constructed by the courts and take effect, subject to EC obligations the effects of s.2 are complex but broadly, it had led to…

Answer 144

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

Question 145

To achieve an interpretation consistent with EU law extra words may be implied Into the domestic statute and/or words of the domestic statute may be given a meaning…

Answer 145

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.

Question 146

What are the orders of the civil courts? List them

Answer 146

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.

Question 147

What cases are dealt with in county courts?

Answer 147

Minor civil cases.

Question 148

Most cases in a county court are heard by a ????? Judge who usually sits ??????

Answer 148

Circuit judge who usually sits alone.

Question 149

What types of cases are dealt with by the high court?

Answer 149

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

Question 150

What are the three divisions of the high court?

Answer 150

Chancery division, family division and queens bench division.

Question 151

What does the chancery division of the high court deal with?

Answer 151

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

Question 152

What does the family division of the high court deal with?

Answer 152

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

Question 153

What does the queens bench division of the high court look at?

Answer 153

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.

Question 154

Each of the three divisions of the high court has its own…

Answer 154

Divisional court

Question 155

The divisional courts of the three divisions of the high court will hear appeals from the county and magistrates courts and from various…

Answer 155

Tribunals.

Question 156

A high court judge usually …

Answer 156

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

Question 157

Appeals from both the county court (in most cases) and all divisions of the high court are dealt with by the…

Answer 157

Court of appeal.

Question 158

Three judges may sit in the court of appeal(civil division) but on occasion there may be a full court of…

Answer 158

Five or seven.

Question 159

The court of appeal does not hear any cases in the first instance but instead…

Answer 159

Hears appeals from the lower courts only.

Question 160

The final court of appeal in the United Kingdom is the…

Answer 160

Supreme Court.

Question 161

The Supreme Court replaced the…

Answer 161

Houses of lords.

Question 162

The Supreme Court is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and …

Answer 162

Northern Ireland.

Question 163

Apart from being the final court of appeal, what else does the Supreme Court do?

Answer 163

• 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.

-

Question 164

Appeals from the court of appeal go to the …

Answer 164

Supreme Court.

Question 165

Appeals from the high court may sometimes go straight…

Answer 165

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

Question 166

How many justices are there in the Supreme Court?

Answer 166

Twelve.

Question 167

How many is normal for the number of justices in the Supreme Court?

Answer 167

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

Question 168

When did the Supreme Court replace the House of Lords?

Answer 168

2009

Question 169

Although the House of Lords is no longer the final court of appeal, it’s previous decisions still stand as precedent and so you will see the reference to the House of Lords when…

Answer 169

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

Question 170

What is the order of courts from bottom to top in criminal cases?

Answer 170

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

Question 171

What is looked at by the magistrates courts?

Answer 171

Minor criminal offences (and some minor civil matters)

Question 172

Cases in the magistrate court may have an appeal to…

Answer 172

Crown court or high court.

Question 173

More serious offences are dealt with in which court in the first instance?

Answer 173

Crown court.

Question 174

More serious offences dealt with in the crown courts are done so by a transfer for…

Answer 174

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

Question 175

Trial in the crown court is before a…

Answer 175

Single judge and a jury, normally of twelve persons.

Question 176

Juries are no longer used in…

Answer 176

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

Question 177

Appeals from the crown court is to the court of appeal (criminal division) as in civil cases, there is the possibility of a further appeal to the Supreme Court, to which the same general principles and restrictions…

Answer 177

Apply.

Question 178

Give a table of the judges and which courts they belong to:

Answer 178

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.

Question 179

What is precedent?

Answer 179

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

Question 180

In early years of the common law, the real judges developed a doctrine of ????? ????? And looked to previous judgments in similar cases when reaching their decisions to ensure consistency.

Answer 180

Stare decisis - let the decision stand.

Question 181

What is the difference between early precedent to modern day binding precedent we have now?

Answer 181

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.

Question 182

In 1865 the council f law reporting was created. This ensured that for the future there would be a …

Answer 182

Consistent and reliable system of reporting cases.

Question 183

The courts were reorganised by the judicature acts 1873-7 and the appellate jurisdiction act 1876, producing a settled hierarchy of …

Answer 183

Courts.

Question 184

The doctrine of binding precedent requires a judge to base their decisions on law established in …

Answer 184

Earlier cases where the facts were the same.

Question 185

The fact the precedent which the judge is bound to follow is not the earlier case as such but the …

Answer 185

Principle established in it.

Question 186

The principle in binding precedent is known as the…

Answer 186

Ratio decidendii (literally, the reason for deciding.)

Question 187

The ratio decidendii is based on what three things?

Answer 187

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

Question 188

In the negligence case, donoghue v Stevenson 1932 lord Atkin in brief said…

Answer 188

… “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.

Question 189

The principle appears to be that each of us has a duty not to harm our neighbour, that is any person whom we should reasonably forsee as likely to be affected by our acts or ommisions. You should understand however that this is not the ratio decidendi of the case (donoghue v Stevenson) but merely and attempt to…

Answer 189

Describe it briefly.

Question 190

When deciding a case, judges may say a number of things in passing, the comments may concern hypothetical situations (I.e situations which have not arisen in this particular case but which might occur). Statements made by a judge which are not essential to the descision are know as…

Answer 190

Obiter dicta (things said by the way)

Question 191

Orbiter dicta comments made by the way are not part of the ratio decidendi nor binding by the future, however obiter dicta may be persuasive I.e particularly of some influence in future cases, particularly if they come from cases heard in the…

Answer 191

Supreme Court or its predecessor the House of Lords.

Question 192

Whether a principle is binding is or not depends on the level of the court in which the descion was made. As a general principle…

Answer 192

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

Question 193

It can be stated that the decisions of the Supreme Court are…

Answer 193

Binding on all lower courts.

Question 194

In 1989 the House of Lords ruled that it was bound by its own…

Answer 194

Descions. (London street tramways v London county council 1898

Question 195

The idea that the House of Lords should be bound by its own decisions was abolished in 1966 through a statement by the lord chancellor made on behalf of the House of Lords. It was declared that…

Answer 195

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.

Question 196

The Supreme Court is therefore now not bound by its own decisions, however the power to depart from its own previous descions has been…

Answer 196

Used quite sparingly.

Question 197

Explain the binding rules for the court of appeal (civil)

Answer 197

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.

Question 198

A decision of the high courts is binding on inferior courts, however the decision of a high court judge at first instance is not binding on another High court judge sitting alone. It is instead only strongly persuasive in influence. As a result, there may be a conflict between two or more high court decisions which will only be resolved when the same point of law is considered by a higher court. Sometimes high court judges hear appeals from lower courts, sitting in what is known as a divisional court, with two or more judges present. The descions of divisional courts are binding on judges…

Answer 198

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

Question 199

The county courts are not binding…

Answer 199

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

Question 200

As with civil cases, the Supreme Court is…

Answer 200

Binding on all lower courts.

Question 201

The crown court is bound by descions of the Supreme Court and the court of appeal (criminal) but not by decisions of a …

Answer 201

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

Question 202

The court of appeal (criminal division) is binding on lower criminal courts (crown and magistrates’). This court is normally bound by its own descions, although it is more flexible in this regard than the civil division. A full court of five judges can overrule a descion of the ordinary three. The court is not bound by the descions of the court of…

Answer 202

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

Question 203

Magistrates courts are bound by descions of higher courts, except that they are not bound by the descion of a from court hearing appeals from magistrates courts. Cases heard in the magistrates courts are not reported…

Answer 203

Officially and have no binding force.

Question 204

The judicial committee of the privy council is the final court of appeal from some common wealth countries and oversees terrortories. It performs the same function for the Channel Islands and the Isle of Man. In this capacity it is strictly speaking, outside the system of English courts. However, the majority of members who hear appeals are justices of the Supreme Court for this reason, judgments of the privy council have much the same standing as those of the Supreme Court itself. They are rear geeked as highly persuasive precedents which will be followed unless there is some compelling reason for departing from them.

Answer 204

Just read.

Question 205

The importantce of the privy council has diminished somewhat in recent years as…

Answer 205

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.

Question 206

The judicial committee of the privy council is also the final court of appeal for:

Answer 206

• 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.

Question 207

If person A loses a case against another,
B. For example in the high court, but then appeals successfully to the court of appeal, the descision in the first hearing is said to be reversed.

If B then appeals also, to the Supreme Court and is successful then the descion is reversed again and…

Answer 207

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

Question 208

Overruling occurs where a higher court decides a matter which is governed by a precedent set in an earlier case on a different principle. This effectively cancels out the principle of law contained in the ratio decidendii of the earlier case and substitutes a new one. Although the old case is no longer good law it is important to recognise that overruling does not initself affect the position of the parties in the earlier case. There is no right of appeal by a person wishing to have a case Reopened after it has been overruled in a later case. If this where to be allowed…

Answer 208

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

Question 209

Although we have said that the reversing of a case does not necessarily change the la, it may do so if, in reversing the decision of a lower court
, the court at the same time overrules and earlier decision. So in reversing the descion or the high court, the court of appeal might follow an earlier precedent set, say in a case in 1986, so no change in the law occurs at this point. However, in reversing the decision again, the Supreme Court may, at the same time overrule then1986 case, setting a new precedent. Overruling affects the principle of law but not to the parties to the case which is…

Answer 209

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

Question 210

A desicion is said to be disapproved when a court offers the opinion that an earlier case is wrongly decided but…

Answer 210

Not in a position to overrule it.

Question 211

Overruling will not be possible if the ratio decidendi of the case before the court does not cover all the matters raised in the earlier …

Answer 211

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.

Question 212

Distinguishing occurs when a court declines to follow a previous decision on the grounds ta there are important points of difference in the case which has gone before it. In other words, the two cases are distinguished on the facts. Distinguishing is a means by which a court can avoid following a precedent which would otherwise be binding on it, although this may lead to an element of artificiality in…

Answer 212

The law.

Question 213

Good idea to write down the differences between distinguishing, reversing, overruling and disapprove.

Answer 213

See above.

Question 214

Persuasive precedents are influential but…

Answer 214

Non binding precedents.

Question 215

The following may be persuasive to a greater or lesser extent(for persuasive precedents)

Answer 215

• 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.

Question 216

What are the advantages of the system of precedent:

Answer 216

• 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.

Question 217

What are the disadvantages of precedent?

Answer 217

• 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.

Question 218

The system of precedent can work well only if it is supported by an effective system of…

Answer 218

Law reporting.

Question 219

The council of law reporting was established by the legal profession in 1865 to provide a systematic and accurate law reporting service. This body, now the incorporated council of law reporting, still publishes these semi official law reports. Known simply as law reports. Separate volumes are published each year in respect of cases heard in the queens bench, family and chancery divisions of the high court and appeals for, those courts to the court of…

Answer 219

appeal

Question 220

Explain what the name of the case tells us with regard to law reporting. Carlill vs carbolic smoke ball co (1893) 1 QB 256.

Answer 220

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.

Question 221

Descions of the House of Lords are published in a separate volume of appeal cases. These can be identified by the letters…

Answer 221

AC in the citation.

Question 222

The law council also issues a series known as the weekly… Which…

Answer 222

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

Question 223

Besides the semi official reports there are various private series. An example is…

Answer 223

All England reports

Question 224

What is the other important law report? Specialist law reports?

Answer 224

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.

Question 225

What are other sources of law reports?

Answer 225

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.

Question 226

Local custom is a minor…

Answer 226

Source of law.

Question 227

A long established local custom which applies to a particular area and group of people may give these people…

Answer 227

Rights which the law will support.

Question 228

In mercer v Denne (1905) the claimant was prevented…

Answer 228

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.

Question 229

In new Windsor corporation v mellor (1975) a lady successfully established the right of…

Answer 229

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

Question 230

What is precedent?

Answer 230

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

Question 231

In early years of the common law, the real judges developed a doctrine of ????? ????? And looked to previous judgments in similar cases when reaching their decisions to ensure consistency.

Answer 231

Stare decisis - let the decision stand.

Question 232

What is the difference between early precedent to modern day binding precedent we have now?

Answer 232

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.

Question 233

In 1865 the council f law reporting was created. This ensured that for the future there would be a …

Answer 233

Consistent and reliable system of reporting cases.

Question 234

The courts were reorganised by the judicature acts 1873-7 and the appellate jurisdiction act 1876, producing a settled hierarchy of …

Answer 234

Courts.

Question 235

The doctrine of binding precedent requires a judge to base their decisions on law established in …

Answer 235

Earlier cases where the facts were the same.

Question 236

The fact the precedent which the judge is bound to follow is not the earlier case as such but the …

Answer 236

Principle established in it.

Question 237

The principle in binding precedent is known as the…

Answer 237

Ratio decidendii (literally, the reason for deciding.)

Question 238

The ratio decidendii is based on what three things?

Answer 238

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

Question 239

A number of conditions must be satisfied before a custom will be recognised by the courts as legally binding. What is immemorial existence?

Answer 239

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.

Question 240

With regards to conditions for local custom to be legally binding, what is continuity?

Answer 240

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.

Question 241

With regards to local custom to be legal binding, what is reasonableness?

Answer 241

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

Question 242

What is the requirement for a local custom to be legally binding, certainty?

Answer 242

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.

Question 243

With regards to local custom, what is peaceful user?

Answer 243

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

Question 244

With regards to local custom, what is compulsion?

Answer 244

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.

Question 245

With regards to local custom, what is not contrary to statute?

Answer 245

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

Question 246

Local customs should be distugnished from convention customs or usages. These are old established practices which are observed in particular trades, business or professions. A congenital usage Can operate as an implied term or a contract - I,e part of an agreement which is binding even though the parties…

Answer 246

Never put it into words.

Question 247

What happened in the Hutton v. Warren (1836) case? And what was said?

Answer 247

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.

Question 248

Europe is now a major source of law for both the United Kingdom and of all the member…

Answer 248

States.

Question 249

What are the three legal European communities?

Answer 249

• 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

Question 250

In 1967 the administration of the communities (but not the communities themselves) was fused by the merger treaty in 1973. The UK Denmark, and Ireland joined the 6 original member states which were (Germany, Italy , France, Belgium, the Netherlands and Luxembourg.) Greece joined the communities in 1981, followed by Spain and Portugal in 1986 and Austria, Sweden and Finland in 1995, making a total of 15 member states. In 2004 a further ten countries joined, followed in 2007 by Bulgaria and Romania. In 2913 Croatia joined the EU, making the total number of member states …

Answer 250

28

Question 251

What is the single European act 1987 and what did it do?

Answer 251

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)

Question 252

With regards to the Maastricht treaty on European Union 1992, what are the two elements to the treaty?

Answer 252

• 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.

Question 253

After Maastricht there are four main treaties:

Answer 253

• 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)

Question 254

There is one European Union and technical ? European communities.

Answer 254

3

Question 255

The term European Union is appropriate when referring to political or general Europe matters and, the term European community EC when referring specifically to…

Answer 255

Matters concerning the treaty of Rome.

Question 256

The main provisions of the Maastricht treaty are:

Answer 256

• 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.

Question 257

The aims of the mastricht treaty are at least partly political and are outside the scope of the course. However the aims of the treaty of Rome (the EC treaty) are largely economic. The object is to remove internal barriers to trade between member states, and to establish a common policy to external third countries trading with member states. The resulting single market should benefit the consumer by achieving…

Answer 257

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.

Question 258

The treaty of Rome basically expresses…

Answer 258

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.

Question 259

Economic integration of the member states is being achieved by Two main methods.

Answer 259

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.

Question 260

Most European law is concerned with which areas?

Answer 260

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

Question 261

With regards to institutions of the European communities, what are they?

Answer 261

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

Question 262

What is the European council?

Answer 262

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.

Question 263

What is the European Commission?

Answer 263

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.

Question 264

What is the European Parliament?

Answer 264

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.

Question 265

What is the court of justice?

Answer 265

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.

Question 266

The main source of European community law are:

Answer 266

• treaties
• regulations
• directives
• decisions
• recommendations and
• opinions

Question 267

With regards to sources of European law, what are treaties?

Answer 267

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.

Question 268

What are the regulations with regards to European law?

Answer 268

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.

Question 269

With regards to European law, what are directives?

Answer 269

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.

Question 270

Although European directives are not self enacting and have to be converted into national law, the European court of justice has ruled that a …

Answer 270

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)

Question 271

With regards to European law, what is descions?

Answer 271

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

Question 272

With regards to the European law, what are under recommendations and opinions?

Answer 272

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.

Question 273

International law is not applied by the English courts unless it has been incorporated into English law by domestic legislation. The European communities act 1972 sets out how….

Answer 273

European community law is to take affect in English law.

Question 274

S.2 (1) provides that certain forms of community law (treaties and regulations) are to have direct effect in English law with no further formalities. In other words, they pass directly into English law without the need for domestic legislation. Where this direct EC law is inconsistent with domestic statutory provisions, the English courts will if necessary grant an injunction preventing the domestic law from being applied. (R V Secretary of State for transport ex party factor tame (1991). Lesser forms of community law such as directives require legislation to incorporate them into English law, but this may be achieved by delegated legislation, and…

Answer 274

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

Question 275

Most European law concerns matters of trade and …

Answer 275

Commerce.

Question 276

A large proportion of the current law concerning insurance companies is ??????? In origin

Answer 276

European.

Question 277

Much of the insurance companies act 1982 which dealt with the regulation of insurers was based on European directives. The act has now been replaced by the …..

Answer 277

Financial services and markets act 2000

Question 278

There is a directive on insurance company….

Answer 278

Accounts.

Question 279

There is also a draft directive on the compulsory winding up of insurance companies, which aims to snare that creditors and policyholders,wherever situated in Europe, have equal treatment of an….

Answer 279

Insurance company becomes insolvent.

Question 280

Recently an important directive on insurance mediation, governing the conduct of brokers, agents and other insurance intermediaries, came into force in the…

Answer 280

UK.

Question 281

Among the most important directives are the directives on…

Answer 281

Motor vehicles.

Question 282

Why are motor vehicle directives important?

Answer 282

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.

Question 283

There are also directives on tourist assistance, credit and surety ship and legal expenses insurance. In December 2005 a directive on reinsurance was published, with the aim of bringing about a common system for the regulation of reinsurers throughout the EU. We can note at this point that member states Are always given time to implement new directives. For example, member states had two years to implement the reinsurance directive. In the case of 2002 insurance meditation directive mentioned earlier, a ….

Answer 283

Three year period for implementation was allowed.

Question 284

The consumer protection act 1987 which is based on EC directive and effects….

Answer 284

Product liability insurance

Question 285

The EC directive on unfair terms in consumer contracts which affects…

Answer 285

Personal insurances in general.

Question 286

It is worth noting that much of the new industrial safety legislation and many laws on the environment now originate in…

Answer 286

Europe.

Question 287

The human rights act has had an impact on the way in which the courts interpret statutes and apply the…

Answer 287

Common law.

Question 288

The human rights act 1998 is having a growing influence on the approach taken by the courts and can be regarded as a…

Answer 288

Source of law in its own right.

Question 289

The courts are obliged to interpret legislation in accordance with the rights protected by the human rights act….

Answer 289

Where possible.

Question 290

With regards to the human rights act, a public authority which acts in contravention of a protected right is acting unlawfully. A victim of such an act has a right of action in the courts. The courts as public authorities are…

Answer 290

Bound by this obligation.

Question 291

In determining disputes between individuals, the courts must take into account any relevant protected rights and will act unlawfully if they…

Answer 291

Reach a descions which is inconsistent with them.

Question 292

What are some examples of reasons why insurance companies find it necessary to go to court?

Answer 292

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

Question 293

In some occasions, insurance firms may need to go to court to settle…

Answer 293

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

Question 294

The vast majority of court cases involving insurance companies arise in connection with the ….

Answer 294

Insurance policies they issue.

Question 295

Insurance cases, disputes fall into which broad categories?

Answer 295

• 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.

Question 296

Only about 5% of cases started in the civil courts get as far as …

Answer 296

Full trial.

Question 297

The current system of civil justice is based on reforms recommended by ,…

Answer 297

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.

Question 298

With regards to Woolf report, he made ??? Recommendations.

Answer 298

303

Question 299

With regards to Woolf recommendations, one was….

Three separate tracks for cases depending on…

Answer 299

Their value and complexity.

Question 300

In the Woolf reports he recommended encouraging the use of… Alternative

Answer 300

dispute resolution.

Question 301

With regards to the Woolf reports, he said about giving Judges…

Answer 301

more responsibility for managing cases

Question 302

With regards to the Woolf reports he recommended more use of information…

Answer 302

Technology.

Question 303

With regards to the Woolf reports, he recommended simplifying documents and procedures and having a single set of rules for proceedings in both…

Answer 303

The high court and the county court.

Question 304

With regards to the Woolf reports, he recommended shorter timetables for cases to reach…

Answer 304

Court and for the length of trials.

Question 305

As a result of Woolf reports, new civil procedure rules were introduced with effect from …

Answer 305

26 April 1999

Question 306

One of the main aims of the Woolf reforms is to encourage people who are in dispute to give information to each other at…

Answer 306

An early date.

Question 307

With regards to giving information to each other at an early date, the intention and result of this is?

Answer 307

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.

Question 308

Pre action protocols are essentially?

Answer 308

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

Question 309

The pre action protocol for personal injury cases is particularly important for insurers because many liability insurance claims including employers’ liability claims and a significant proportion of motor claims are for…

Answer 309

Bodily injury

Question 310

With regards to pre action protocol for personal injury, the claimant should send the defendant (and insurers if known) a letter of claim promptly once they have enough information to support their…

Answer 310

Claim

Question 311

With regards to the pre action protocol for personal injury cases, the defendant should respond (identifying their insurer) within ?? Days

Answer 311

21

Question 312

With regards to pre action protocol for personal injury, the defendant (usually, in effect, the insurer) should investigate the claim and respond within three months, either admitting liability or if it is denied giving…

Answer 312

Reasons for denial and enclosing the relevant documentation.

Question 313

With regards pre action protocol for personal injury, the parties should co operate in appointing any expert witnesses that are…

Answer 313

Required and should try to agree to use one expert.

Question 314

If the pre action protocol is not adhered to, and this leads to unnecessary litigation, the party who is at fault may be penalised by the court by having to pay the costs of the proceeding. If the claimant is At fault they may also be deprived of interest on their award; or, if the defendant is at fault, they may have to….

Answer 314

Pay extra interest on top of the damages?

Question 315

If the claim cannot be settled out of court and it does proceed to litigation, the claimant must first choose the court in which…

Answer 315

To start the action.

Question 316

The two course which hear civil cases at first instance are the county court and…

Answer 316

The high court.

Question 317

Cases may not start in the high court unless…

Answer 317

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

Question 318

Proceedings which include a claim for damages in respect of personal injuries must not be started in the high court unless the value of the claim is…

Answer 318

£50,000 or more.

Question 319

Defamation actions must be started in the….

Answer 319

High court.

Question 320

Cases that begun in one court may not in the end be tried there because cases may be transferred from one court to another, commonly at the…

Answer 320

Allocation stage.

Question 321

The claimant must begin by drawing up a statement of their case, which is normally done by entering the appropriate details on a claim form provided by the court office and providing more detailed…

Answer 321

Particulars of claim.

Question 322

The details in which the court in which the claim is being brought, the names of the claimant and defendant, details of the claim ( a summary of the facts and the nature of the injury suffered) and the …

Answer 322

Amount of money that is being claimed.

Question 323

When the defendant receives a copy of the particulars of claim they may admit the claim and pay the full amount, in which case the claim ends. However if the defendant wishes to defend the claim they must send either an acknowledgement of service or a defence to the court within 14 days. If only a acknowledgement of service is sent…

Answer 323

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

Question 324

If the defendant does neither of these things the claimant can ask the court to make an order that the defendant should….

Answer 324

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

Question 325

Once the claim is defended the court will allocate the case to the most approiate ‘track’ for dealing with it. The decision is made by the district judge or master (procedural judge) in the high court. The names of the tracks are?

Answer 325

• small claims track
• the fast track
• the multi track

Question 326

What is the small claims track?

Answer 326

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

Question 327

What is the fast track?

Answer 327

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

Question 328

What is the multi track?

Answer 328

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

Question 329

There are plans to increase the small claims limit for personal injury claims to £5,000 from …

Answer 329

£1,000

Question 330

The claimant and the defendant will each complete an allocation questionnaire to assist the judge in deciding the choice of track. Although value is a determining factor, cases may be allocated to a higher track due to complexity or…

Answer 330

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

Question 331

Either party may ask for a stay of proceedings in order to attempt to settle outside court by way of…

Answer 331

Alternative dispute resolution.

Question 332

The initial stay requested by the allocation questionnaire will be for one month but s further period can be ordered. The courts are increasingly encouraging the parties to consider the use of ADR and an unreasonable refusal to do so may…

Answer 332

Result in cost penalties.

Question 333

The court has the power to strike out all or part of the statement of a case (either the claim or the defence) either on request of one of the parties or its own initiative. They can do this on a variety of grounds, for example, where the settlement case makes no sense of shows…

Answer 333

No reasonable grounds for bringing or defending the claim.

Question 334

A dispute arising out of a consumer contract involving sums less than £10,000 or a very minor personal injury claim worth less than £1,000 for general damages would be part of which track?

Answer 334

Small claims track.

Question 335

With regards to small claims track, the court will issue ‘standard directions’ (in effect a timetable) instructing each party to file and serve copies of all documents, including any expert reports, at least 14 days before the final hearing. The date of which is sent out with the directions. The aim is…

Answer 335

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.

Question 336

With regards to small claims track, the use of lawyers being discouraged they…

Answer 336

Are used quite frequently.

Question 337

A ????? Judge will bear a small claims track case

Answer 337

District.

Question 338

A district judge will hear the case. District judges are encouraged to take an active part in the small claims proceedings, by asking questions and making sure that…

Answer 338

Both parties explain important points.

Question 339

A personal injury claim including a claim for lost earning where the total claim exceeds £10,000 or a claim for a lost deposit exceeding £5,000 in a failed transaction would be part of the…

Answer 339

Fast track.

Question 340

In fast track cases, the judge will encourage parties to agree directions. I.e a strict timetable for dealing with pre trial matters such as disclosure or documents, and the exchange of witnesses statements and experts reports. The purpose is to prevent one or both sides from wasting time and…

Answer 340

Running up costs.

Question 341

If no agreed directions are submitted by the parties then the timetable will be set by the judge, the general aim is to have the case heard within 30 weeks and to conclude the trial in one day. The case will usually be heard by a district or circuit judge. Although the proceedings are more formal than in small claims cases, the court may limit the use of oral evidence and cross examination. The number of expert witnesses is also restricted, with usually only one…

Answer 341

Expert (jointly instructed by the parties) being allowed.

Question 342

More serious personal injury claims, for example one involving industrial disease or ongoing incapacity, a professional indemnity claim involving expert evidence, or any other dispute for sums exceeding £25,000 would be what type of case?

Answer 342

Multi-track case.

Question 343

Claims for more than £25,000 are usually allocated to multi track. Cases that are started in the county court are usually tried there, although they can be sent to the high court, especially for claims in excess of £50,000. A multi track case will usually be heard by a circuit judge or high court judge who will manage the case from the time it is allocated through to…

Answer 343

Conclusion.

Question 344

The judge will give directions from the management of the case and set timetable or fix one or more case management conferences to arrange….

Answer 344

Directions and review the progress of the case.

Question 345

It has always been possible for a person involved in litigation to make the other party an offer in the hope of settling the case before it comes to trial and or make a payment into court. The rules governing these offers and payments are now contained in part 36 of the civil procedures rules hence the terms…

Answer 345

Part 36 offer and part 36 payment.

Question 346

A part 36 payment is essentially an attempt to force the other party into…

Answer 346

Compromise.

Question 347

If an offer or payment into court is accepted by the other party then the case ends. However if, the offer or payment is not accepted within the time allowed for doing so the person refusing it may end up paying extra costs, even if…

Answer 347

They win the case.

Question 348

If someone us offered £50,000 to settle a case but refuse and then they win but the get a settlement less than what they wanted and should of just taken the offer then…

Answer 348

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

Question 349

The significance of payment into court is that in the case of money claims, the defendant can only make offers to settle prior to the start of the proceedings. In fact, once proceedings begin,more action offers usually become ineffective unless there is prompt payment into court of the…

Answer 349

Money offered.

Question 350

If a claimant wins they should be able to recover most of the costs however if lost the claimant…

Answer 350

Will have to pay the defendants costs as well

Question 351

What is legal aid?

Answer 351

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

Question 352

From 1999 conditional fee agreements were allowed in all…

Answer 352

Civil (non-family) case.

Question 353

In a conditional fee agreement the solicitor agrees with his client on a fee or charge-out rate per hour that would normally be charged for such a case. The parties also fix a ….

Answer 353

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

Question 354

If the case is lost the client pays nothing but, if the case is won, the client pays the solicitor both the normal fee and …

Answer 354

The success fee.

Question 355

A cap on the success fee may be agreed, typically 25% of the damages that the successful…

Answer 355

Claimant receives.

Question 356

The access to justice act 1999 allowed courts to order that the losing party should pay the amount of the ….

Answer 356

Success fee to the winner.

Question 357

With regards to legal expenses insurance, if the case is lost the claimant will not have to pay his lawyer but he will normally be ordered to pay the costs of…

Answer 357

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.

Question 358

What is before the event insurance?

Answer 358

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.

Question 359

Before the event legal expenses is insurance is likely to be much…

Answer 359

Cheaper than after the event.

Question 360

Most insurers for before the event legal expenses insurance provide a legal helpline giving advice to the insured as soon as any potential problems…

Answer 360

Arise.

Question 361

The allows the insured to choose his own …

Answer 361

Solicitor.

Question 362

What is after the event legal expenses insurance?

Answer 362

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.

Question 363

After the event legal expenses insurance is much more…

Answer 363

Expensive than before the event legal expenses insurance.

Question 364

Before April 2013, there was one advantage for the claimant in that the reasonable costs of after the event insurance premiums were recoverable from the defendant along with…

Answer 364

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

Question 365

Before the event insurance premiums are not …

Answer 365

Recoverable from the other side.

Question 366

Lord justice ??????? Carried out a review of the funding of civil justice and published his final reports in December 2009.

Answer 366

Jackson

Question 367

Many of Lord justice jacksons have been included in…

Answer 367

Legal said sentencing and punishment of offenders act.

Question 368

Whilst much of LASPO deals with sentencing for criminal offences, the act also removes legal aid for…

Answer 368

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.

Question 369

Laspos effect on Susscess fees etc and such sill have a major impact upon funding of litigation relating to…

Answer 369

Insurance claims

Question 370

With regards to Jackson reforms and areas of changes following LASPO what are damaged based agreements?

Answer 370

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.

Question 371

Conditional fee agreements success fees/after the event insurance premiums are no longer recoverable from the losing party where arrangements are entered into on or after 1st April 2013. Because claimants will no longer be able to recover the success fee or ATE premium, there has been 10% …

Answer 371

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

Question 372

Judicial costs management procedures have been introduced for multi track cases commenced on or after 1st April 2013. The parties will have to file and exchange detailed costs budgets before the…

Answer 372

First case management conference.

Question 373

The court may make a costs management order recording the extent to which parties budgets are agreed of approved. And when assessing costs, the court will not depart from budget without good reason. It will be essential for all parties to prepare accurate budgets and keep them up to date as recoverable costs may…

Answer 373

Be restricted to the budget last approved or agreed.

Question 374

Explain qualified one way costs shifting for personal injury claims.

Answer 374

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

Question 375

What are exceptions to qualified one way costs shitfting for personal injury claims?

Answer 375

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.

Question 376

The most notable charerteristic of the legal profession in the UK is the fact that practicising lawyers divide into two groups:

Answer 376

Solicitors and barristers (known as advocates in Scotland)

Question 377

In one sense the legal profession is rather like the medical profession in the UK, in which physicians are either …

Answer 377

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

Question 378

When people need legal advice they verbally contact a…

Answer 378

Solicitor.

Question 379

Solicitors offer professional advice on all kinds of legal matters, from buying a home or matters of family law to major commercial deals as the selling of a …

Answer 379

Major corporation.

Question 380

Solicitors can also represent their clients in court. They do this mainly in the lower courts but some solicitors apply for and obtain…

Answer 380

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

Question 381

Most solicitors work in private practice. Their businesses vary in size from multinational firms with hundreds of staff to high street offices where one solicitor works as sole practitioner. Other solicitors work in central or local government, the civil service or in…

Answer 381

Commerce or industry.

Question 382

The law society represents solicitors in England and Wales (there are equivalent law societies in Scotland and Northern Ireland) and the profession is regulated by…

Answer 382

The solicitors regulation authority.

Question 383

Barristers act on the instruction from solicitors and have little direct contact with …

Answer 383

Members of the public.

Question 384

Barristers perform two main roles. First, when specialist expertise is needed they give opinions on complex matters of law. Second, when clients need representation in the higher courts (I,e the crown courts, high courts, courts of appeal and Supreme Court) barristers provide…

Answer 384

Advocacy service.

Question 385

The barristers governing body is the…

Answer 385

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.

Question 386

What is counsels opinion?

Answer 386

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