Exam Flashcards
What is the maximum value of County Court cases?
Financial and Personal Injury Disputes separately
Financial Disputes of up to £100,000.00
Personal Injury of up to £50,000.00
An overview of civil procedure:
- Claimant takes pre-action steps
- Claimant issues proceedings on County or High COurt and defendant files a defence
- Court gives directions on how to proceed: disclosure of documents, exchange of witness statements and expert reports
- Trial
- Appeal or Enforcement of Judgement
Name the 3 different types of Criminal Appeal
- The defendant may appeal a conviction
- The defendant may accept the conviction but appeal the sentencing
- The prosecution may appeal an acquittal
An appeal to the Court of Appeal (Criminal Division) from the Crown Court, can be made on a point of fact and law. True or False?
True.
But the next appeal from the Court of Appeal (Criminal Division) to the Supreme Court, can only be on points of law.
Statutes
What does a capital A mean next to a subsection number and what should you do?
Amendment. Look up the amendment for more detail and if it is in force.
Define ‘affirmed’
Court agrees with decision of a lower court on the same case
Define ‘applied’
Court regards itself bound by a decision in an earlier, different case, and the same reasoning has been used in this case.
Define ‘Approved’
A higher court states that a different case was correctly decided by a lower court
Define ‘considered’
The court discussed a different case, often once decided by a court of equal status
Define ‘overruled’
Court overturns a decision in a different case of a court lower, or sometimes of equal status
Define ‘distinguished’
Where a court has no power or no wish to overrule sn earlier different case and does not wish to apply it but has found a compelling difference that means it does not have to follow it as a precedent.
Define ‘Reversing’
Where a higher court on appeal overturns the decision of a lower court on the same case
Define ‘semble’
Means it ‘appears’ where a court gives its opinion on a point which is not directly before it
Define ‘held’
The decision of the court
What are EU Regulations
They are directly applicable on all member states on date of commencement (cited running number / year)
What are EU Directives
They require member states to pass implementing legislation within a time frame (cited year / running number)
What are Rules of Construction and name the 4?
These are reasons why a court or a lawyer places a particular construction on a statute:
- Literal Rule
- Golden Rule
- Mischief Rule
- Purposive Approach
What is the Literal Rule?
Rules of Construction
- The first rule the court will look at
- Using ordinary, natural meanings of words
- Just a feature of common law countries
- There is no ambiguity then the court will have no option but to apply the statute literally
What is the Golden Rule?
Rules of Construction
- Designed to mitigate some problems that could arise using the literal rule
- The Courts depart from the literal meaning if it manifests absurdity or invidious result, causing ambiguity
- There is no ambiguity then the court will have no option but to apply the statute literally
What is the Mischief Rule?
Rules of Construction
- Strives to allow interpretation of a statute inline with the intent of Parliament
- Court will try to ascertain why certain wording was used (by using Hansard etc.) and seek to resolve any ambiguity and reflect legislative intention.
- Looks backward
What is the Purposive Approach?
Rules of Construction
- Looks forward
- Mainly applies to laws derived from EU Legislation
- Under the European Communities Act 1972, the court must adopt a Purposive Approach in construing EU legislation and in particular; UK provisions implementing EU Law
- Court must interpret legislation bearing in mind its purpose
- Aims based or policy driven approach
- Where there is no ambiguity to exploit, they can attempt to adapt the statutory provision to align it to judicial thinking.
What are Rules of Language and name the 3
These are technical tools to help use the language in a statue and avoid any ambiguity:
- Eiusderm Generis
- Noscitur a Sociis
- Expressio Unius est Exclusio Alterius
What is the difference between Rules of Construction and Rules of Language?
RoC are about why courts interpret as the do; RoL are about how they achieve these ends
List the 8 presumptions
Rules of Language
- Against alteration of the Common Law
- In a penal statute, any ambiguity is construed in favour of the subject
- No Criminal Liability without Guilty Intent
- Against the retrospective operation of statutes
- Against ousting the jurisdiction of the courts
- Against deprivation of liberty of the individual
- Against the deprivation of property or interference with private rights
- Against Binding the Crown
Define ‘Eiusderm Generis’
Rules of Language
- Of the Same Kind or Nature
If a general word follows two or more specific words, that general word will only apply to items of the same type as the specific words. - Literal translation ‘of the same type’
Define ‘Noscitur a Sociis’
Rules of Language
- Known by the Company it keeps
A word derives its meaning from surrounding words.
Define ‘Expressio Unius est Exclusio Alterius’
Rules of Language
- Expressing one thing excludes another’
Any mention of one or more specific things may be taken to exclude others of the same type if no generic word follows.
Which Rule of Language is ‘Expressing one thing, excludes another’
Expressio Unius est Exclusio Alterius
Which Rule of Language is ‘Known by the Company it keeps’
Noscitur a Sociis
Which Rule of Language is ‘Of the Same Kind or Nature’
Eiusderm Generis
What Act influences how a statute should be interpreted?
Human Rights Act
Which courts does the ECJ bind, as is it bound by its own decisions?
Binds all UK courts
Is not bound by its own previous decisions
Which courts does the Supreme Court bind, as is it bound by its own decisions?
Binds all Courts below it
Not bound by its own previous decisions
Which courts does the Court of Appeal bind, as is it bound by its own decisions?
Binds all Courts below it
Is generally bound by all courts above it
Is generally binding on itself as to encourage consistency in legal decision making.
Which courts does the High Court bind, as is it bound by its own decisions?
The High Court does generally not bind any lower courts, unless it is a narrow appellate jurisdiction, then its decisions are, in theory, binding on a Crown or Magistrates Court
Do any courts below the High Court hold the power to bind another court?
No.
Crown, County, Magistrates Courts and Tribunals don’t have any binding authority.
Exam Q: (Civil) Carruthers is claiming £13,000.00 in compensation under the Act, in which court would he normally take his claim? A) Magistrates B) County C) High Court QBD D) High Court Chancery Division
B) County Court
Exam Q: (Civil) Assume the case was heard in the County Court. Which Rule as to costs applies? a) Loser pays costs b) Winner pays costs c) Each party bears their own costs d) No order as to costs will be made
a) Loser pays costs
Exam Q: (Civil) If Mr Justice McRae was hearing the appeal from the County Court, in which court does he sit? a) Supreme Court b) Court of Appeal c) High Court QBD d) High Court Chancery Div.
c) High Court QBD as this case in particular was a contract or tort case
Exam Q: (Civil) Is whether 'dockyards' constitute a workplace for the purpose of the Act a question of: a) fact b) law c) fact and law d) time
b) law
Exam Q: (Civil)
What does it mean to differentiate the material facts of a case?
Distinguish
Exam Q: (Civil)
When can Hansard be used?
Hansard can only be used if the statue is ambiguous AND the material consists of clear statements by a minister or promoter of the bill
Exam Q: (Civil)
What is Codifying?
Bringing together some earlier legislation and modifying it to make the existing common law
Exam Q: (Civil)
What is the difference between Codifying and Consolidating?
Consolidating = merges existing legislation on the same topic for efficiency Codifying = involves consolidating but also updating the law in the process
Exam Q: (Civil)
in the absence of an expressed jurisdiction, the statute would apply where?
England, Wales, Scotland and Northern Ireland
Exam Q: (Civil)
Are the judgements of the CJEU and the ECHR binding or persurasive?
CJEU: binding
ECHR: persuasive
What is the typical Civil Appeals Process?
County -> High Court (QBD = contract and tort, or Chancery Div) -> Court of Appeal -> Supreme Court
What is the typical Criminal Appeals process for a summary trial?
Magistrates Court
to Crown Court (appeal by defendant only on law or fact- if pleaded not guilty, or accepts conviction but wants to appeal setence)
or
to High Court QBD (appeal from either side but must be based on a point of law)
then
to Supreme Court (either side can appeal, must be point of law of general public importance) AND either High Court or Supreme Court must grant leave of appeal
What is the typical Criminal Appeals process for a indictment trial?
Crown Court
to Court of Appeal (Criminal Division) - appeal by defendant only on a case of fact or law, made only with law. (After acquittal the AG may clarify a point of law, but this does not affect acquittal. If judgement is too lenient then the AG may also appeal this. Otherwise, only the defence can appeal)
then
to Supreme Court (either side may appeal on a point of Law only - of general public importance AND Court of appeal or HoL must grant leave to appeal)
