Insurance Law Flashcards
What is the main way to law is classified?
Describe these distinctions.
A basic distinction is made between Public and Private(civil) law.
1) Public law, is concerned with the legal structure of the state and relationships between the State and individual members of the community. It also governs the relationship between one state and another.
2) Private Law, governs the relationship between legal persons such as individuals, businesses and other organisations.
What is included in the definition of public law?
1)Constitutional Law, which is concerned with the structure of the main institutions of government and their relationship with each other.
2) Administrative Law, Concerns the legal relationship between private citizens and the various agencies of local and central government, and the impact of their activities on ordinary individuals.
3) Criminal Law, Concerned with the control of behaviour which harms or threatens the peace and stability of the community.
What are the Characteristics of English Law?
1) Age of Continuity - English law has a long history.
2)Little codification - Only certain part of English law is codified.
3) Judge-made law - The system of binding precedent allows the decision of judges to become part of the law itself and allows the law on a particular subject to adapt and develop through a series of binding decisions.
4) Independence of the Judiciary - Judges, while appoint by the Lord Chancellor, are free from government control.
5) Adversarial system - Where a judge remains neutral, and listens to each sides evidence, before giving judgement.
6) No Written constitution - Rather then having a set of rights, British citizens are allowed to do anything as long it is not specifically prohibited by law.
7)Rule of Law -
What is principles that describe the rule of law?
1) The powers exercised by politicians and officials must have a proper foundation and be based on an authority given to them by law.
2) The law generally should be reasonably certain and predictable
3) People should be treated equally by the law, which should not allow unfair discrimination.
4) No one should be punished or deprived of their property, status or rights unless they are given a fair hearing by an impartial court or tribunal.
5) Every person should have a right of access to the court, which will defend the liberties and freedoms of the individuals.
What does the term common law refer to?
refers to a unified system of law that is to those parts of our law that are contained in the decisions of the courts, such as case law rather than statute law.
What does Equity help with?
What are the principles?
Can be describes as a gloss or supplement to the common law, and it is best understood as a collection of rules offering an alternative solution to some legal problems.
Principles are: The laws of trust
Specific performance
injunctions
What are the sources of English Law?
Law must continue to develop to reflect changes in the way we live:
1) Social changes - of how people are expected to change.
2) Technological changes -
The main sources of new laws -
1) Legislation 2) Judicial precedent (or case law)
The additional ways are -
1) Local customs 2) Legal books and treatises.
There is also the European Community Law
What is legislation?
The law which has been created in a formal wat and set down in writing.
The only body which has power to make general legal rules is Parliament.
What is the Procedure for the enactment of public bills?
stage 1 ) First reading - A formality where the The clerk of the house read out only the title of the bill to inform the Members of its existence.
stage 2) Second reading - Where the merits of the bills are debated and a vote is taken as to whether it should be proceed.
stage 3) Committee stage - Where the details of the bill are discussed by a standing Committtee. At this stage, amendments to the bill are proposed and are voted upon.
stage 4) Report stage - Where the Bill is amended by the Committee is reported to the house as a whole, which are debated again.
Stage 5) Third reading - Offers the final opportunity for debate. But in practice, at this stage, only minor changes are made.
What is the difference between a Public and Private bill?
1) A Public Act is one which contains law affecting the whole community.
2) A Private Act is passed on the benefit of a particular individual, organisation or group.
What are the ways that the law can be tidied up?
There are two ways:
1) Consolidating act, which repeals all previous legislation on a subject and re-enacts it in one logically arrange statue.
2) Codifying acts, These acts not only consolidate, but also include principles embodied in case law.
What is Retroactive (or retrospective) legislation?
Legislation which affects acts done or rights acquired before it came into effect.
What is delegated legislation.
What are the forms of it?
Enabling Acts are acts of Parliament which lay down general rules often confer on persons or bodies the power to make detailed rules and regulation for the purpose of implementing the Act.
The rules made under the authority of these acts are known as delegated legislation.
1) Statutory instruments -
2) Orders in council -
3) Bye-laws -
What are the three common law rules, which the courts use to assist with interpretation ?
1) Literal rules - This is the primary rule, which take precedence over the others. According to the rule, words and phases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.
2)Golden rule - Where the meaning of the words in a statute, if strictly applied, would lead to an absurd result, and there is an alternative interpretation which avoids the absurdity, the courts are entitled to choose that latter meaning.
3) - Mischief rule - Here the judge will consider the meaning of the words in the act in the light of the abuse or “mischief” which the Act was intended to correct, and choose the interpretation which makes the Act effective in suppressing the mischief.
What are the presumptions that apply to the construction of a statue (unless there are clear words to the contrary)
1) is not intended to create a “strict” criminal offence
2) Is not intended to oust the jurisdiction of the court.
3) Is not intended to have retrospective effect.
4) Applies only to the UK.
5) Is not intended to infringe the requirements of international law.
6)Does not bind Government (Crown)
7) is not intended to interfere with vested (established) rights or allow confiscation of property without compensation.
What is the effect of the European communities Act on statutory interpretation?
UK laws passed or made before the end of the transition period must be interpreted, as far as possible and so far as relevant, in accordance with EU Law.
From the end of the transition period, the UK can implement new polices in many areas that previously fell within EU competence. Now only in Northern Ireland does EU law have supremacy over the UK legal system
Describe the civil court system.
Minor civil cases are dealt with by the County Courts.
Major Cases (Usually those involving claims for substantial sums of money) are heard at first instance by one or other three divisions of the High court.
Appeals from both the county court and all divisions of the High are dealt with by the Court of Appeal.
The final court of appeal within the UK is the supreme Court.
Certain appeals can also leapfrog the court of appeal, and go to the supreme court
Describe the Criminal court system.
Minor criminal offences are dealt with by Magistrates’ Courts, from which there may be an appeal to the Crown Court or High court.
More serious offences are dealt with at first instance in the Crown court after “transfer for trail proceedings” in the Magistrates Court.
What is a Precedent?
A precedent is a decision in a previous legal case where the facts where the facts were similar to the case before the court.
Judges must pay regard to previous decisions, and that it was not for the court to reject them.
What is the principle of Ratio Decidendi?
This principle is regarding precedent, and states that Judges are not bound to follow an eailer case, but the principle established in the case.
It is based on:
1) The material facts of the case.
2) The decisions of the Judge or Judges
3) The reason for the decision.
What is the general principle that decides if a principle is binding or not?
What is the hierarchy that decides whether a precedent is binding or not?
A judge is only bound by decisions made in a court higher than their own or, in some cases, a court of equal standing.
The decisions of the Supreme court are binding on all lower courts - and the supreme court is not bound by its own decisions .
The court of Appeal is binding on the lower courts. It is also generally bound by its own decisions, unless two such decisions conflict.
in the High court the decision of a judge at first instance is not binding on another High court judge sitting alone. It is instead only a strongly persuasive influence.
The county court are bound by all decisions of the higher courts.
What is reversing?
If a person A, loses a case against another, B but then appeals successfully the decision in the first hearing is said to be reversed.
What is overruling?
Overruling occurs where a higher court decides a matter which is governed by a precedent set in an earlier case on a different principle.
What is Disapproving?
A decision is said to be disapproved when a court offers the opinion that an earlier case is wrongly decided but it not in a position to overrule it.