General ELS

Question 1

When was the fusion of Common Law and Equity seen as complete?

Answer 1

Between 1873 and 1875 with the Judicature Acts.

Question 2

When was the Crown Court developed?

Answer 2

1971

Question 3

What are the primary and secondary types of legislation in the EU?

Answer 3

Primary: Two foundation treaties - the TFEU ‘07 and TEU ‘92
Secondary: Regulations, Directives and Decisions

Question 4

What were writs?

Answer 4

Claims - there were different types of writ which you could purchase and serve to someone. Only remedy recognised was damages.

Question 5

Why did equity develop?

Answer 5

Writs were becoming bureaucratic but also limited - not meeting all needs.

Question 6

What did Smith v Hughes 1959 consider?

Answer 6

Street prostitutes (i.e. solicitation from a balcony - does it constitute street prostitution?)

Question 7

What does delegated legislation require?

Answer 7

The express authority of an Act of Parliament - a Parent Act.

Question 8

Per Holland and Webb, what functions does the Law perform? (8)

Answer 8

Coercive
Facilitative
Protective
Maintenance of Peace
Regulation of economic activity
Regulation of human relationships
Regulation of international relations
Preservation of moral order

Question 9

What are the four sources of Law?

Answer 9

Parliament
Courts
EU
ECHR

Question 10

What is the status of challenging the validity of an Act?

Answer 10

Court cannot challenge due to supremacy of Parliament; but in some cases there can be some limitations applied by virtue of certain ‘constitutional principles’

Question 11

What terminology could be applied to delegated legislation?

Answer 11

Delegated legislation could be secondary or tertiary - but this is merely a variance in application - both carrying the full weight of Parliamentary legislation.
Delegated legislation could also be soft law - which is limited by contextual application.

Question 12

What are Orders in Council?

Answer 12

Crown issued with advice from the Privy Council. Used where SIs (statutory instruments) are inappropriate.
Example: the transferral of ministerial powers to devolved governments

Question 13

What did the Legislative Reform Order (2006) allow?

Answer 13

Limited amendment of primary legislation through statutory instruments. Aim is to reduce regulatory burden without hassle of amendments

Question 14

What are remedial orders?

Answer 14

Orders permitting the amendment or repeal of statutory provisions which clash with the convention on human rights.

Question 15

How many judges usually sit on a SC hearing?

Answer 15

5, though 7-9 if important. (12 in total, with a President).

Question 16

What types of cases does the SC hear?

Answer 16

Only those of general public importance

Question 17

Who is the Head of the Judiciary?

Answer 17

Following the CRA 2005, the Lord Chancellor lost his role as head of the judiciary. There now exists a Lord Chief Justice, currently Lord Thomas of Cwmgiedd

Question 18

Who is the most senior member of the CA?

Answer 18

Master of the Rolls - Currently Lord Dyson MR

Question 19

What are the three divisions within the HC?

Answer 19

Queen’s Bench Division - Common law (contract/tort), some criminal
Family Division - matrimony, divorce, adoption
Chancery Division - property, corporate, tax

Question 20

What are the respective heads of the QBD, Family Div and Ch Div?

Answer 20

QBD - President - Brian Leveson
Family - President - James Munby
Ch - Chancellor of the HC

Question 21

What do each of the HC main courts have attached to them, and what are their functions?

Answer 21

A ‘divisional court’, which act as appellate courts. Presided over by 2-3 judges.

Question 22

What is the name of the divisional court which sits below the QBD, why does it have a different name?

Answer 22

It is known as the Administrative Court, as it has a supervisory function over the entire court. It received this name in 2000.

Question 23

What are the different types of County Court judge?

Answer 23

Circuit judge (more senior), District judge. A District judge will appeal to a Circuit judge.

Question 24

When were Tribunals restructured?

Answer 24

2007 - individual tribunals were brought under a standardised ‘First Tier Tribunal’ with rights of appeal to upper tribunals.

Question 25

What are three special courts which are not regularly part of the court system?

Answer 25

> Court of Justice of the EU - Final point of interpretation on EU Law - composed of Court of Justice, General Court and EU Civil Service Tribunal
European Court of Human Justice
Judicial Committee of the Privy Council - Final Court of Appeal for dependent territories. 30-50 cases per year, judges from the SC. Senior judges from the Commonwealth have the right to sit.

Question 26

How does substantive law differ from procedural law?

Answer 26

Substantive specifies the rules of the law

Procedural is the process by which a case is brought to court

Question 27

What is different between civil and common law in terms of the approach in court?

Answer 27

Civil Law - Inquisitorial

Common Law - Adversarial

Question 28

What are the three approaches to overruling a precedent?

Answer 28

• When a court is faced with a decision on what the law means, it might depart from or overrule a previous decision. When it does, it will adopt one of three different approaches:
◦ Declare that the law is [x]; it has always been [x], but we did not know it until now. This has retrospective and prospective implications.
◦ Say that the law is [x]‌ but, because everyone has organised their affairs until now on the basis that the law was [y], the new view of the law only affects events occurring after the decision.
◦ Approach 3 (mixtures): it is possible to come up with other variations on this theme. For instance, the decision might be held to be prospective as regards everyone not involved in the case but retrospective in its effect as between the parties to the case in which the ruling is given.

Question 29

What was the per incuriam campaign by Lord Denning? (CA)

Answer 29

• The per incuriam campaign -> Lord Denning advocated that if a HoL decision has been made per incuriam it need not be followed. This is where a court has failed to take into account all the relevant and vital statutes or case authorities and that this had a major effect on the decision

Question 30

What was the lapsed rule campaign by Lord Denning? (CA)

Answer 30

◦ Lapsed Rule Campaign - I.e. if a precedent was set but then the situation around the precedent changes. Lord Denning attempted to apply the Latin Maxim cessante ratione legis, cessat ipsa lex (with the reason for the rule ceasing, the law itself no longer exists). Lord Denning was unsuccessful; though the judges were split on the matter.

Question 31

What are the three exceptions to abiding by stare decisis in CA?

Answer 31

◦ First Exception - Court of Appeal can choose between its own conflicting decisions. This can occur when simultaneous court hearings clash; or if earlier cases were not reported; or if there is conflict on whether cases can be distinguished or not. This last one was the case in Starmark Enterprises Ltd v CPL Distribution Ltd.
◦ Second Exception - If it’s own previous decision has been overruled expressly or impliedly by the Supreme Court/House of Lords, it need not be followed
◦ Third Exception - The Court is not bound by its own decisions found to have been made per incuriam. This was evidenced in the outcome of Morelle v Wakeling.

Question 32

What could be said of stare decisis in criminal law?

Answer 32

• More relaxed on stare decisis, esp. when liberty is at stake.

Question 33

Does a litigant have a right to a remedy?

Answer 33

The only remedy available as of right to the successful litigant is the common law remedy of damages. All equitable remedies are at the discretion of the court.

Question 34

What are two important new rights in equity?

Answer 34

The trust (originally the ‘use’, from which the trust later developed) to protect rightful owners, and the equity of redemption to protect mortgagors.

Question 35

Describe an injunction

Answer 35

a judicial order restraining a person from beginning or continuing an action threatening or invading the legal right of another, or compelling a person to carry out a certain act, e.g. to make restitution to an injured party.