els 1 v3

Question 1

Writ

Answer 1

• A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court. |- The writ also contained the foundation of the complaint and a different form of writ was used for each ground of complaint (or ‘form

Question 2

A real action

Answer 2

an action in the common law courts for the recovery of land.

Question 3

Personal Action

Answer 3

an action for which the remedy was damages.

Question 4

King’s Court

Answer 4

• Centralised body co-existent with local courts.|- Jurisdiction limited to disputes that affected King’s personal power|- Eventually taken over by clerics who established themselves at Westminster

Question 5

Common Law - Distinguishing in Different Contexts

Answer 5

1. In the historical sense, to distinguish the law as applied by the King’s judges as opposed to the law as applied by the local customary court;|2. To distinguish the law as applied by the King’s Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery;|3. To distinguish the whole of case law - that is, law as developed through the system of precedent - as opposed to statute law; and|4. To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law as applied by civil law countries where the law is based on Roman law (as applied, for instance, in most of mainland Europe).

Question 6

Personal action - Debt

Answer 6

an action for a fixed sum of money in return for an executed consideration (signed undertaking).

Question 7

Personal Action - Detinue

Answer 7

a claim for the return of a specific chattel wrongfully retained (with the option of damages in lieu).

Question 8

Personal Action - Covenant

Answer 8

an action for damages resulting from breach of a man’s promise under seal (by deed). No consideration was necessary. The concept of the covenant (a promise contained in a deed) remains of significance in the law today

Question 9

Personal Action - Account

Answer 9

Today this is generally a procedural rather than a substantive remedy. It was used to compel a party to account to the claimant for money received on the claimant’s behalf, e.g. a bailiff who received rent on behalf of the claimant

Question 10

Personal Action - Trespass against:|(a) The person|(b) Goods|(c) Land

Answer 10

Trespass only extended to direct physical damage, not damage indirectly caused or against intangible rights such as reputation.

Question 11

Personal Action - Case

Answer 11

this was used to provide a remedy when none was provided by a known action. Most of the modern law of tort has developed from actions on the case: nuisance, malicious falsehood, inducing breach of contract, libel, slander, deceit and negligence.

Question 12

Equity Can be Defined as

Answer 12

as the body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-1875

Question 13

Equity has been described by Maitland

Answer 13

as ‘a gloss on the common law’. This meant that equity cannot stand alone as a separate and complete legal system.

Question 14

Equity of Redemption

Answer 14

The right in equity which a mortgagor or chargor has on full repayment of the secured debt, to recover the assets which are subject to the mortgage or charge.

Question 15

Equitable Remedy - Injunction

Answer 15

This an order of the court compelling or restraining the performance of some act.

Question 16

Equitable Remedy - Specific Performance

Answer 16

This is an order of the court compelling a person to fulfil a promise or agreement

Question 17

Equitable Remedy - Rescission

Answer 17

This is an order of the court restoring the parties to their pre-contractual position.

Question 18

Equitable Remedy - Rectification

Answer 18

This is an order of the court rectifying a written agreement that does not correctly embody the terms agreed, so as to give effect to the agreement between the parties.

Question 19

True or False: Equitable Remedies are discretionary whilst common law damages are available as of right

Answer 19

TRUE

Question 20

True or False: s 25 of the Judicature Act 1873-1875, now to be found in s 49(1) of the Supreme Court Act 1981 provides that the common law prevails over equity

Answer 20

FALSE

Question 21

True or False: Judicature Acts 1873-1875 abolished the old division of the three common law courts and the Court of Chancery

Answer 21

TRUE

Question 22

True or False: The Judicature Acts 1873-1875 created a single High Court which could apply equally the rules and remedies of both common law and equity

Answer 22

True.

Question 23

True or False: Human Rights Act 1988 provides individuals with a means of securing their basic human rights by allowing litigants to bring their cases directly to the European Court of HR.

Answer 23

False. It provides individuals with a means of securing their basic human rights in domestic courts rather than having to bring cases to the European Court of Human Rights (by way of appeal).

Question 24

True or False: The European Communities Act 1972 provides that the UK courts have discretion as to whether EU law can be followed.

Answer 24

False: One of the central principles of EU law is the supremacy of EU law, also known as the primacy of EU law. This directs that EU law takes priority over national law in the event of a conflict between them. Further EU law principles require national courts, including those in the UK, either directly to enforce rights provided by EU law where certain conditions are met (‘direct effect’) or to interpret national law in way that is compatible with EU law in so far as it is possible to do so (‘indirect effect’).

Question 25

Burmah Oil Ltd v Lord Advocate [1964] 2 All ER 348

Answer 25

which awarded compensation against the Crown for losses sustained during the Second World War.

Question 26

Parliamentary Supremecy: War Damage Act 1965

Answer 26

The Act stated that the Crown was not and never had been under such liability; Parliament was able to retrospectively nullify a judicial decision

Question 27

Parliamentary Supremacy: British Railways Board v Pickin [1974] 1 All ER 609

Answer 27

concerned what happened to the land when a railway line was disbanded. Previously it had gone to the owner of the land either side, but the Act stated it should go to the British Railways Board. Pickin, who owned land adjoining a railway line, brought a case alleging the Act to be invalid on the basis that the British Railways Board had misled Parliament, and that Parliament’s own procedural rules had not been followed. The House of Lords held that the courts do not have the power to examine parliamentary proceeding and, being subordinate to Parliament, they cannot declare an Act of Parliament to be invalid.

Question 28

T or F: In the event of conflict between common law and equity, the judges shall consider both systems and apply the rule resulting in the most rationale result.

Answer 28

False. Equity prevails.

Question 29

T or F: By the Use (Trust) the Chancellor intervened in equity on the ground that it would be unconscionable for the recipient of the estate to ignore the terms of the transfer which was on the basis that it would be used for the benefit of the departed landowner and his family. The recipient would thus be compelled to hold the land for the use and benefit of the original landowner and his family.

Answer 29

TRUE

Question 30

T or F: Dicey recognised that Parliament was supreme except for when the King, on advice of the prime minister, found that an Act or a portion of the same was invalid for conflicting with an order in council.

Answer 30

False: […] the very keystone of the law of the constitution [is that] Parliament […] has […] the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.