ELS Flashcards
Law
The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties.
High justice
The Monarch’s personal power
Court of Exchequer
Court dealing with royal finances
Court of Common Pleas
Court dealing with the possession of land
Court of King’s Bench
Court dealing with serious criminal matters
Assizes
Sittings in the Royal Courts
- These continued until the enactment of the Courts Act 1971
Court of Exchequer Chamber
Court to deal with appeals (appellate)
- This was abolished in 1875 when its function was transferred to the Court of Appeal
The Common Law/Case Law
The law which the King’s Judges applied and was based upon the common customs of the country
- This was firmly put in place and recognised as supreme over the local courts by the time of the reign of Edward I (1272)
Writ
A document with a royal seal that contained a royal demand for the defendant to appear before the court, it contained the foundation of the complaint and there was a different form of writ for a different complaint.
- Only Parliament was able to issue a new writ and if a claimant couldn’t find an existing writ to cover their case then they had no claim that the could bring before a court.
Real action
An early form of a writ which was an action in the common law courts for the recovery of land
Writ of right
The earliest form of a ‘real action’ which was a direction from the King commanding the feudal lord to trial a dispute about the title to freehold land which would be resolved in a trial by battle (physical fight)
Grand assize
Henry II established them in the 12th century and they gave the defendant the option of submitting to trial before 12 knights instead of a trial by battle.
Possessory assizes
Determined who had the immediate right to land based on who had the better claim to possession instead of issuing an absolute right to who had the most fundamental right.
Personal action
An action under the common law brought to enforce or recover a debt or a remedy (which was damages such as financial compensation)
- Problem with this was that it only offered the remedy of damages so when a party breached a contract, the common law couldn’t compel a party to fulfil the promise
Debt (personal action)
An action for a fixed sum of money in return for an executed consideration.
Detinue (personal action)
A claim for the return of a specific chattel (an item of immovable property but not real estate e.g. ovens) wrongfully retained (with the option of damages instead).
- This (and debt) was triable by ‘wager of law’
Wager of law
When people testify to the character of the defendant as proof that the claim was not well-founded)
Covenant (personal action)
An action for damages resulting from the breach of a man’s promise under seal (by deed), no consideration was necessary.
Account (personal action)
This 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
Trespass
Unlawful interference (can be committed against a person, goods or land)
Historically, it as triable without proof of loss (actionable per se)
Law originating in the EU
Before Brexit, some EU law was applicable in the UK without any action on the part of Parliament. After Brexit, some law which was originally part of EU law remains applicable in the UK via legislation passed by Parliament.
International Law
The UK has approved numerous international treaties and conventions. Many are not ‘law’ in the strict sense, i.e. breach does not attract a penalty, but they are still a source of legal rights and obligations.
Judgement
A person’s personal judgement
Judgment
The judgment of a court or tribunal
Stare decisis / Binding precedent
Means ‘stand by what has been decided’
- Once a principle of law has been set down, future cases with the same material facts must be decided in the same way.
A point of law
A question about the application of the law to the case, which the court has been asked by the parties to decide.
- When a POL is decided in a superior court, this creates a precedent.
Persuasive Authority
A judgment of a court, from which the instant court may choose to depart.
Ratio decidendi
‘’Reason for the decision”
Ratio
The legal principle on which the courts’ decision is based. (The binding part of a judgment)
Obiter dictum
When a Judge comments on an area of law which is not necessary for the court to reach the decision in the case.
Dissenting judgments
The view of a judge who disagrees with the majority of the court.
Following
Where a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed.
Approving
If the court doing the ‘following’ is a higher court, then the later decision is said to be approving the earlier one.
Applying
Where a court in a later case considers the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case.
Reversing
A judgment is reversed if a case goes to appeal, and the higher appeal court disagrees with the lower court. This has nothing to do with precedent.
Overruling
A precedent is overruled if a superior court in a later case decides the original precedent set in a past case is wrong and sets a new ‘correct’ precedent instead. The original precedent is no longer good law.
- A court departs from its own precedent if it overrules its own.
Distinguishing
A court may avoid following an otherwise binding precedent if it can ‘distinguish’ the earlier case, e.g. by finding a difference in the material facts between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts. Finding a fact on which to distinguish an unhelpful or unpopular precedent is part of a judge’s skillset.
