English Legal System

Question 1

What is the Definition of Law?

Answer 1

Law is defined as:
Principles and regulations established in a community
By some authority - e.g. parliament
Applicable to it’s people
In the form of legislation
or Custom and Policies enforced by judicial decision

Question 2

What three types of Law a relevant to this module?

Answer 2

Common law and Equity
Private Law and Public Law
Criminal Law and Civil Law

Question 3

What is Meant by Common Law and Equity?

Answer 3

Common Law is:
Developed from Local customs
Bought in the system of Precedent
Remedy is damages
May be rigid and In flexible - Equity introduced to resolve this.
Equity introduced:
Discretionary remedies - Injunctions & Specific Performance.
Focus on Fairness - so dies not apply where there are delays or unfair acts by the claimant.

Question 4

What is the difference between Private and public law?

Answer 4

Public Law - Matters relating to the whole country, will include:
criminal law, constitutional law and social welfare law.
Private law - matters between individuals:
contract law, family law and IP rights.

Question 5

And Criminal Law versers Civil law?

Answer 5

Criminal law - Case bought by the state. Burden of proof is on the prosecution.
Civil Law - Case bought by the claimant (Private Law), burden of proof is on the claimant.

Question 6

What are the Main Civil courts?

Answer 6

County Court - First instance claims, majority of civil stuff.
Magistrates court - Family Matters
High court of Justice - split in to Queens Bench, Chancery and Family division
Court of Appeal
Supreme Court.

Question 7

What is the Three track system in Civil courts?

Answer 7

Claims are allocated to one of Three tracks:

1) Small claims - Simple claims < £10k
2) Fast Track - Short duration £10k - £25k
3) Multi Track - Over £25k and/or Complex

Question 8

What are the main Criminal Courts?

Answer 8

Magistrates Court
Crown Court
Divisional Court of the queens Bench Division
Court of Appeal
Supreme Court

Question 9

What other Courts should we be aware of?

Answer 9

Court of Justice of the European union -
European court of human Rights
Judicial Committee of the Privy council - Commonwealth.

Question 10

What Are tribunals?

Answer 10

An alternative to using the court system to settle a dispute.
May be quicker and less costly than the court system.
Not bound by doctrine of judicial precedent.

Question 11

What are the overall sources of Law?

Answer 11

EU law - Takes precedence over all other sources.
Legislation - precedence over Case law.
Equity - prevails over common law.

Question 12

What is Case law?

Answer 12

Case law is split in to Common law and Equity and is based on the Doctrine of Judicial Precedent.
Basically following the decisions made on previous cases, which may be either binding or persuasive.

Question 13

What three factors are considered in deciding if a precedent is binding or persuasive?

Answer 13

The Hierarchy of the Courts
Ratio decidendi and Obiter dicta
The material Facts of the case.

Question 14

How does the Hierarchy of the courts determine if precedent is binding?

Answer 14

General rule:

Precedents of higher courts bind lower courts but not vice versa.

Question 15

What does Ratio Decidendi mean?

Answer 15

The legal reason for a decision.

is capable of forming binding precedent as is the statement of law that is carried on to later decisions.

Question 16

What does Obiter Dicta Mean?

Answer 16

Statements (not ratio) relating to hypothetical situations or wide legal principles.
They are persuasive not binding.

Question 17

How can the facts of a case impact whether a precedent is binding?

Answer 17

The material facts must be the same for the precedent to be binding, if significantly different then the precedent is persuasive.

Question 18

What other reasons are there for a precedent to not be binding?

Answer 18

It has been over ruled by a higher court
It has been over ruled by statute
It was made with out proper care ( per incuriam)
can be distinguished from an earlier case.

Question 19

How is legislation formed?

Answer 19

Either:
Act of Parliament or
Delegated legislation

Question 20

How does legislation become an act of Parliament?

Answer 20

Must go through 5 stages in each house:
1st Reading
2nd Reading
Committee stage
Report stage
3rd Reading
May not come in t effect immediately.

Question 21

What is delegated Legislation?

Answer 21

Parliament passes an enabling Act - sets out policy involved and objective to achieve.
Task is then delegated to another body e.g.
Statutory instruments - made by government ministers.
Local authority
Professional Bodies.

Question 22

What are the rules of Statutory interpretation?

Answer 22

Literal Rule - words are given their ordinary dictionary meaning
Golden Rule - does not result in an absurdity
Mischief Rule - what was the statute enacted to protect against
Purposive Rule - What did parliament mean to achieve?
Eiusdem Generis - General words have the same kind of meaning as the specific words they follow
Expressio unius exclusio alterius - where a list is established anything not on the list is not covered.

Question 23

What is the human rights act 1998?

Answer 23

Incorporates the European convention for the protection of human rights and fundamental freedoms in to UK law.

Question 24

How can courts control Delegated legislation?

Answer 24

Ultra Vires - Acting beyond power.