ELS: Sources of Law (1) Flashcards
What are the (3) pre 1832 periods of the law?
- Pre-1066 (Norman conquest) – the locally-based systems and customs of the Anglo- Saxon society.
- 1066-1485 (Tudor accession) – the formation of common law and its imposition over and above local systems and customs.
- 1485-1832 – the development of equity.
What are the (4) post 1832 parts of modern day law?
- The fusion of common law and equity
- The massive development in statute law
- The growth of governmental and administrative bodies
- The influence of the European Union
What’s the King’s Council? What were the three courts that developed from this?
The King’s Court (high justice) around Magna Carta time (1215).
1. Court of Exchequer, dealing with royal finances.
2. Court of Common Pleas, dealing with the owner possession of land.
3. Later, Court of King’s Bench, dealing with serious criminal matters.
– Remained until the Judicature Act 1873.
There were also Assize Courts (dispersed royal courts - could only deal with criminal matters at first, then civil 0 stayed until Courts Act 1971). Also Court of Exchequer Chamber: appellate function until 1875.
What’s ‘the writ system’?
Until 1875 claimant had to purchase a writ ‘a document with a royal seal that constituted a royal demand for the defendant to appear before the Court’ to pursue a claim. System became too rigid as procedure required pre-existing form of action for case to be heard.
- Early example ‘writ of right’ - recovery of land - 12th century.
Earliest actions at common law?
C-A-D-D
Covenant: action for damages for breach of man’s promise under seal
Account: used to compel party to account to claimant for money received on C’s behalf
Debt: action for fixed sum of money
Detinue: claim for return of specific chattel
What can trespass be committed against? (3)
The person
Goods
Land
What was the problem with the writ procedure?
It was never a system that was developed based on any concept of ‘rights’ and ‘wrongs’ - the common law did not concern itself with the determination of an individual’s rights and duties.
What are the current sources of law in England and Wales?
Case Law
Legislation
Law originating from EU (no longer)
International Law
Do judges make law?
Academic debate: merely declare what it has always been.
What does ‘stare decisis’ mean?
Precedent - ‘stand by what has been decided’
For a court to be compelled to follow what has been stated in an earlier case, what is necessary to be persuaded?
- The earlier case was decided in a court which binds it, and
- The relevant part of the earlier case is binding, rather than merely ‘persuasive’
What does ‘ratio decidendi’ mean? What is it?
‘Ratio decidendi’ means “reason for the decision”. The ‘ratio’ of a judgment is the part which is binding on other courts - the legal principle or rule on which the court’s decision is based.
- can be wide or narrow
What’s an obiter dictum?
Comments on an area of law which is not necessary for the court to reach the decision in a case. Not regarded as binding, although they may be highly persuasive.
Consist of:
-> Statements of law not necessary to the decision
-> Statements of the law as the judge would like it to be but for the doctrine of precedent.
-> Dissenting judgments, i.e. the view of a judge who disagrees with the majority of the
court.
Terminology: following, approving, applying context?
Following: court considers facts of case similar to facts in earlier case
Approving: higher court follows decision of earlier case
Applying: similarities with earlier case law
Terminology: reversed, overruled/overturned?
Reversed: case goes to appeal and the higher appeal court disagrees with the lower court.
Overrule: superior court in a later case decides the original precedent set in a past case is wrong and sets a new ‘correct’ precedent instead.
–> some elements of former decision may be left intact.
-> Supreme Court may ‘depart’ from its own precedent also.
What are the rules of precedent for the Court structure?
- Supreme Court All inferior courts, but not always binding on itself. - Court of Appeal All inferior courts, and itself. - The High Court All inferior courts, and itself (except for decisions taken by a single Judge). - The Upper Tribunal The First Tier Tribunal, inferior courts, and itself. - The First Tier Tribunal Not binding but may be persuasive - Family Court Not binding - County Court Not binding - Crown Court Not binding - Magistrates' Court Not binding
What is equity?
Body of principles and rules administered by the Court of Chancery (13th century) before the Judicature Acts 1873-1875. However, the rules and principles of equity are still applicable today.
What’s the origins of the law of trusts?
Landowners went abroad to fight in crusades: needed someone to look after lands.
Transfer legal title on basis used for landowner and family - instances arose where they did not do this.
Common courts refused to recognise rights on grounds of no legal title.
Chancellor intervened in equity!
- In redemption: equity stepped in to stop land being redeemable re. overdue debts.
What was the conflict between equity and the common law?
In 17th century: Lord Ellesmere vs. Court of Chancery. The violence of the conflict is shown, for example, by the fact that the common law judges declared that anyone opposing such enforcement measures, even to the point of killing a Chancery officer trying to carry them out, was acting in lawful self-defence.
Height of the conflict: Lord Ellesmere antagonised common law judges by entertaining cases in the Court of Chancery where judgment had already been given in the common law courts. The Chief Justice of the King’s Bench, Lord Coke, retaliated by releasing prisoners committed by Lord Ellesmere for breach of injunctions, and then encouraged them to prosecute their opponents for the crime of impeaching the judgments.
Relevance of Earl of Oxford’s Case?
Monarch, James I decided that in cases of conflict, equity should prevail over common law.
This rule was enshrined in s. 25 of the Judicature Act 1873-1875, now to be found in s. 49(1) of the Supreme Court Act 1981.
What were the two systems?
Common law courts and Court of Chancery.
Until 1875 only Court of Chancery applied equity.
Two systems: common law and equity - equity claims could not be defeated by procedural technicality as Court of Chancery did not use writs/formal documents.
- If both damages and injunction, both a common law action and an equity action would need to be brought.
Resolution to the two system problem?
Common Law Procedure Act 1854 gave common law courts some power to grant equitable remedies. The Chancery Amendment Act 1858 gave the Court of Chancery power to award damages in lieu of an equitable remedy. Process remained cumbersome.
What were the Judicature Acts 1873-75? Why were they key?
These Acts abolished the old division of the three common law courts and the Court of Chancery, and instead created a single High Court and Court of Appeal which could apply equally the rules and remedies of both common law and equity. In cases of conflict, equity still prevails.
What are some equitable maxims (principles)?
- > Equity will not suffer a wrong to be without a remedy.
- > Equity follows the law.
- > One who seeks equity must do equity.
- > One who comes into equity must come with clean hands.
- > Delay defeats equities.
What is the main equitable remedy? What are the other equitable remedies?
Main is damages.
- > Specific performance.
- > Injunctive relief.
- > Declaratory relief.
- > Rescission.
- > Rectification.
What’s the equitable doctrine of ‘laches’?
Delay in pursuing an equitable claim or remedy may prevent the claimant obtaining relief. This is based on the maxim that delay defeats equities.
When is specific performance available?
- Order by court to compel party to perform something under contract; only available were: 1) contract, 2) damages not adequate - not available for breach of contract re. personal services re. employment
