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flk1 key issues > Legal System > Flashcards

Legal System Flashcards

1
Q

How does a common law system differ from civil law systems used in much of Europe?

A

A common law system refers to both statues/regulations and court judgements; in a civil law system, the primary focus is on codified statues.

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2
Q

What does it mean that the common law system is adversarial?

A

The opposing parties offer legal arguments supporting their case, and the judge serves as an umpire between them, ensuring that each follows the procedural rules.

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3
Q

Is it possible to apply for a common law remedy and an equitable remedy in the same court?

A

Yes.

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4
Q

What is the nature of equitable remedies?

A

They are discretionary.

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5
Q

What is the primary source of legislation in the UK?

A

Statues = Acts of Parliament

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6
Q

What is the structure of an Act of Parliament?

A
  1. Short title
  2. Citation
  3. Long title
  4. Date of Royal Assent
  5. Preamble
  6. Part
  7. Sections
  8. Marginal notes
  9. Subsections
  10. Extent provisions
  11. Enabling provisions
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7
Q

What are the sources of law? (6)

A
  1. Primary legislation
  2. Secondary legislation (statutory instruments)
  3. International treaties
  4. Case law
  5. Works of authorities
  6. Conventions
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8
Q

What is the Literal Rule?

A

If the words of a statue have clear meaning, a court will apply the statue as written.

If there is some ambiguity, the court will give words their ordinary meaning, even if it yields an absurd result.

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9
Q

What is the Golden Rule?

A

If using the ordinary meaning of a word would give an absurd result, a court may use a different meaning of a word.

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10
Q

What is the Mischief Rule?

A

It looks at what the problem the statue was designed to remedy and adapts the words of the statue to achieve this result.

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11
Q

What is the Purposive Rule?

A

It looks at why the statue exists and what it hopes to achieve. The judges look at the extrinsic aids (the content of debates on the Bill in Hansard and Commons briefing papers).

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12
Q

Expressio Unius est Exclusio Alterius

A

The expression of one thing is the excusion of another.

If one or more things of a class are expressly mentioned in a statue, the things omitted are excluded.

[not adding anything that is not in the statue]

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13
Q

Noscitur a Sociis

A

A word is interpreted by the company it keeps.

When interpreting the statue, courts consider the context in which a word is used.

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14
Q

In Pari Materia

A

Upon the same matter or subject.

It can be applied where other statues may assist with interpreting an ambiguity in the statue concerned.

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15
Q

Ejusdem Generis

A

Of the same type.

If a general word follows two (or more) specific words, the general word will only apply to items that are like the specific words used.

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16
Q

Two types of “aids” to interpretation

A
  1. Intrinsic (within the statue; short and long titles, marginal notes, schedules, etc).
  2. Extrinsic (outside the statue; dictionaries, explanatory notes, Hansard).
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17
Q

If there is a conflict between the case law and a statue, what will prevail?

A

A statue.

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18
Q

What is the difference between the primary and secondary legislation?

A

Legislation passed by the Parliament is considered to be primary legislation whereas legislation made under the authorisation of Parliament it considered to be secondary legislation.

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19
Q

What are the two main courts in the civil system?

A

The County Court and the High Court.

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20
Q

What type of claims does the County Court handle (i.e., what is the general monetary treshold)?

A

Below £100,000 or £50,000 for personal injury cases.

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21
Q

Which judges preside in the County Court?

A
  1. District judges;
  2. Circuit judges.
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22
Q

What are the three types of claims in the civil system?

A
  1. Small claims track: less than £10,000 (£1,000 for personal injury claim).
  2. Fast track: less than £25,000 (£10,000 for personal injury claim).
  3. Multi-track: over £25,000 or below £25,000 if too complex.
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23
Q

What are the three divisions in the High Court?

A
  1. King’s Bench Division;
  2. Chancery Division;
  3. Family Division.
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24
Q

Can the High Court act as a civil court of first instance?

A

Yes: for complex Multi-track cases and cases exceeding £100,000 (or £50,000 for personal injury cases and clinical negligence).

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25
Q

What is the role of the Administrative Court within the King’s Bench Division?

A

Applications for judicial review.

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26
Q

Areas of law for the Chancery division.

A
  1. Land contracts;
  2. Trusts;
  3. Wills.
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27
Q

With what deals the Family division of the High Court?

A

Family proceedings such as adoption, complex divorce, nullity of marriage, and dissolution of civil partnership.

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28
Q

What is the ADR?

A

Alternative Dispute Resolution.

Mediation, Arbitration, Negotiated settlement.

29
Q

What are the key features of mediation?

A
  1. The most common version of ADR.
  2. Involves a third party: mediator.
  3. The parties make the decision how to resolve their dispute – the mediator does not issue the rulling.
  4. Conciliatory approach.
30
Q

What are the key features of arbitration?

A
  1. Involves use of a third party: arbitrator.
  2. The arbitrator decides the dispute.
  3. The arbitrator discusses the case individually with each party and then makes a decision (final order) which is enforceable in the courts.
  4. Adversarial nature.
31
Q

What are the key features of negotiated settlement?

A
  1. It does not involve the use of a third party.
  2. The parties negotiate with each other and agree how to settle the dispute.
  3. Should be the first consideration (cost and time effective as it avoids using the court system or a third party).
32
Q

Where do all criminal cases begin?

A

In Magistrates’ Court.

33
Q

What are the types of criminal offences?

A
  1. ‘Summary offences’: tried without a jury in the Magistrates’Court.
  2. ‘Either way offences’: [1] tried in the Magistrates’ Court if the defendant agrees to be tried without a jury or [2] tried in the Crown Court.
  3. ‘Indictable offencess’: tried in the Crown Court.
34
Q

What is the composition of the Magistrates’ Courts?

A
  1. Magistrates (not legally qualified)
  2. District judges.
35
Q

What is the maximum sentence that a Magistrates’ Court can impose?

A

6 months for a single offence (1 year if multiple) or a fine of any amount. [To check; the study guide says any amount, the lecture £5,000.]

36
Q

Who presides over Crown Courts?

A

High Court judges and circut judges.
Simples cases may be presided over by recorders.

37
Q

Who are the recorders (Crown Court)?

A

Barristers or solicitors in private practice who serve as part-time judges.

38
Q

Who can be a part of a jury?

A

People between the ages of 18 and 75 from the electoral register.

39
Q

In which cases can the jury be vetted?

A

In exceptional circumstances, usually in cases involving terrorism.

40
Q

In which courts do the solicitors automatically have the right to appear?

A

Before the lower courts, such as Magistrates’ Court, the Couty Court and Family Court.

41
Q

How can a solicitor gain the right to appear in the superior courts?

A

By completing additional advocacy training and applying for higher rights of audience with the SRA.

42
Q

What are the two factors that decide where an appeal will be heard?

A
  1. The seniority of the judge presiding over the original case;
  2. The court in which the judge sat when reaching the decision that is being appealed.
43
Q

Where will the appeal be heard for the case heard by a district judge in the County Court?

A

By a circuit judge in the County Court.

44
Q

When can the case be sent from the Hight Court to the Supereme Court?

A

If there is a public significance, i.e., an issue of statutory interpretation.

45
Q

Where will the appeal be heard for the case heard by a circuit judge in the County Court?

A

By a High Court Judge in High Court.

46
Q

Where will the appeal be heard for the case heard by a master in the High Court?

A

By a High Court Judge in High Court.

47
Q

Where will the appeal be heard for the case heard by a High Court judge in the High Court?

A

By Lord Justice of Appeal in the Court of Appeal

48
Q

Where will the appeal be heard for the case heard by a Lord Justice of Appeal in the Court of Appeal?

A

By a Justice of Supreme Court in Supreme Court.

49
Q

For civil cases, from where must the permission to appeal be sought?

A
  1. From the court that made the judgement.
  2. If the court refuses to grant permission to appeal, an application can be made to the court to which the case will be appealed.
50
Q

When will an appeal in the civil case be granted?

A
  1. The claim looks to have a real prospect of success, or
  2. There is another pressing reason to hear the case.
51
Q

Criminal appeals: what can be appealed to the Crown Court?

A

Sentence and verdict. Unless the defendant pled guilty, then only sentence.

52
Q

What does an appeal to the Crown Court involve?

A

A full re-hearing of the case (original evidence and witnesses can be re-examined, and new evidence and witnesses introduced).

53
Q

Criminal appeals: an appeal to the High Court

A

Either party can apply to the High Court to hear appeal on the ground that Magistrate has incorrectly applied the procedure (e.g. denying admissible evidence).

A panel of three judges will review the judgement, which may be affirmed, amended, or returned to the Magistrates’s Court for revaluation.

54
Q

Criminal appeals: an appeal to the Administrative Court (division of the High Court).

A

Either party can appeal if the court acted ultra vires (beyond the scope of its powers).

55
Q

Criminal appeals: an appeal to the Court of Appeal (who can appeal and what?)

A

Only the convicted party can appeal – either the conviction or the sentence.

56
Q

Criminal appeals: what is the deadline for appealing to the Court of Appeal?

A

Within 28 days of sentencing.

But it is possible to submit out of time appeal.

Where there is fresh evidence, an appeal can be submitted to the Criminal Cases Review Commission (CCRC) to have the case reheard.

57
Q

Criminal appeals: When an appeal to the Supreme Court is possible?

A

Where:
1. The permission by the Supreme Court has been given, and
2. The point of law at issue is of public importance.

58
Q

What is the principle of stare decisis?

A

“Let decisions stand”.

59
Q

What is the vertical binding effect of precedent?

A

Rulings of higher courts bind the lower courts.

60
Q

What is the general rule for the horizontal binding effect of a precedent?

A

If a judge is sitting in a court of coordinate jurisdiction (a court of the same level that made a decision in the previous case), they should follow the decision unless there are cogent (convincing) reasons for not doing so.

61
Q

What happens if there are two conflicting decisions of coordinate jurisdiction?

A

The latter decision should be followed.

62
Q

Is the decision of the Supreme Court binding on the Supreme Court?

A

No.

63
Q

Is the decision of the Court of Appeal binding on the Court of Appeal?

A

Generally yes in the civil division.

In the criminal division the court has a discretion to depart (if it is convinced that the decision was wrong and the decision would cause hardship).

64
Q

Is the decision of the High Court binding on the High Court?

A

Yes, if the decision was rendered in a case in which the High Court was acting as an appellate court.

65
Q

When is the prior court decision binding (i.e., what is the general principle of a precedent)?

A

It involves similar facts and similar laws.

66
Q

What part of a judicial decision is binding?

A

Ratio decidendi. The facts, laws and interpretation of laws on which the court based its ruling.

67
Q

What is orbiter dictum? (Is it binding?)

A

Other statements in the judgement.
Obiter dictum is not a binding precedent but it may be used as persuasive authority.

68
Q

How is an opinion of the judge in the minority treated?

A

As obiter dictum. It can be treated as persuasive authority.

flk1 key issues (8 decks)

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