Legal System of England and Wales Flashcards
Adversarial system
Opposing parties offer legal arguments supporting their case and the judge serves as an umpire ensuring procedural rules are followed
(Contrasts with civil law systems where the judge serves as an inquisitor drawing out the facts from witnesses d legal counsel acts as the umpire to ensure the judge follows procedural rules)
Common law system
Legal system in which decisions about disputes are made by referring to both statue and regulations and court judgements in previous cases involving similar facts
Statute and case law
Binding precedent
Orality
Equity
Public law
Deals with all matters between the state and the individual e.g. constitutional law and criminal law (although also a category in its own right)
Private law
Matters between two individuals without any involvement from the state e.g. personal injury
Criminal law
Deals with matters between two or more individuals with the involvement of the state who brings a prosecution on behalf of the crown where a criminal wrong or offence has been committed
Civil law
Matters involving two or more individuals involving a civil wrong e.g. breach of contract. The state is not involved.
Substantive law
Procedural law
Case law/ common law
Judge made law
A set of judge made rules that have either binding or persuasive effect on future cases
Inferior to legislation > parliamentary sovereignty
Statute
Parliamentary sovereignty/ supremacy
Primary legislation
Secondary legislation
Structure of an Act of Parliament: long title
Description of the Act and the purpose of the Act
Royal assent
Bill
Proposed legislation
Structure of an Act of Parliament: preamble
A formal way of stating how the Act is to come into force
A fixed block of text included in every Act of Parliament that confers the authority of the Crown to the Act
“BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows”
Structure of an Act of Parliament: Citation
An Act’s citation is a reference to the year and chapter of the Act, such as “2017 Ch 22”
Structure of an Act of Parliament: enabling provision
An Act of Parliament that delays the enforcement of the Act until a relevant minister produces regulations giving effect to a provision. It would look something like: “The following provisions come into force on such day as . . .”
Types of secondary legislation?
Other names for statutory instruments?
- Subordinate legislation
- Delegated legislation
Statutory instruments
Royal prerogative
A historic power officially vested in the monarch and is the name of the remaining portion of the crown’s original authority. Every act that the executive government can lawfully do without the authority of an act of parliament is done in virtue of the prerogative. Examples: ratifying international treaties, ability to declare war
Equitable remedies
Historical in nature
They bring equity or fairness into court decisions
Works of authority
Written by academics or interested people on the UK constitution and other areas of law
They exam laws and supporting principles and supporting principles and sometimes suggest ways to interpret law
Courts don’t have to follow them - no binding effect BUT can be persuasive if written by a well respected author
Conventions
An unwritten understanding about how something should be done (not codified)
A way of doing things because that’s the way they’ve always been done
Expectations of how MPs, the Crown and others will act
Generally observed to avoid negative opinion but the only penalty is disapproval and criticism
Given great weight in UK and court through the acknowledgement of their existence BUT are not legally enforceable
Example: monarch should invite the party with the biggest number of seats to form a government
Legislation
Created by a democratically elected parliament
The main source of lawmaking in the UK
Judge’s functions?
- Application of the law as implemented by executive and legislature
- Interpret the law
Executive/Government
Comprises all official and public authorities including local authorities that govern the UK
Literal rule
Apply natural and ordinary meaning
Clear words must be applied in the way they are written (even if the outcome is harsh or undesirable)
Golden rule
Words must be given their plain, ordinary meaning unless to do so would produce an absurd result
Departs from ordinary meaning of a word to avoid absurd result
Rarely used so as not to comprise the principle of parliamentary supremacy
Mischief rule
Looks at the problem the statute was designed to remedy and interprets the words in a statute to remedy that problem
Purposive approach
Interprets the legislation in line with the purpose of the act
Uses extraneous material from the pre-enactment phase of legislation to try to discern the meaning of the words used in the statute.
Rules of language in interpreting laws
- Expressio unius est exlusia alterius
- Noscitur A Sociis
- Pari materia
- Ejusdem generis
Expressio unius est exlusia alterius
“The expression of one is the exclusion of others”
Listing specific things impliedly excludes others
Not adding on anything that is not mentioned in the legislation
Noscitur A Sociis
Words should be interpreted from the company they keep
Words in a list have related meanings and are to be interpreted in the context with the rest of the matters within the list
Pari materia
“Upon the same matter or subject”
This applies to statues that were enacted at different times but pertain to the same subject
Must be interpreted in light of each other since they have a common purpose for comparable events or items
Used to avoid contradiction or conflict between or among statutes dealing with the same subject matter
It helps to interpret the words of the latter statuette in light of the earlier statute in the same context
Ejusdem generis
“Of the same type”
Used to interpret general words
If general words follow two or more specific words, the general word applies only to the terms that are like the specific words used
Intrinsic aids to interpretation?
Examples?
The statute must be read as a whole and every words must be considered before looking outside of the statue at extrinsic aids to interpretation
Examples:
- Short title
- Long title
- Marginal notes
- Schedules
Extrinsic aids to interpretation?
Examples?
If the statute itself is not entirely helpful then can move to using extrinsic aids that feature outside of the statue that may be used nonetheless to assist with interpreting any ambiguities
Examples:
- Dictionaires
- Explanatory notes
- Hansard
Mediation
This method uses a neutral third person to guide the parties to find their own resolution of the dispute
Arbitration
This method uses a neutral third person to decide the dispute and tends to be more adversarial in nature than other methods of ADR
Negotiated settlements
This method does not use a neutral third person and involves the parties settling the case amongst themselves
What are the alternative dispute resolutions?
1.
2.
3.
What grounds might the Court of Appeal consider when deciding whether to grant permission to appeal?
- The claim looks to have a real prospect of success
OR
- There is another pressing reason to hear the case
What standard might the Supreme Court apply when deciding whether to grant an appeal?
- The decision involves a point of law of public importance
AND
- The Court of Appeal gave leave to appeal
Where are fast track cases typically tried?
County court
Where are multi-track cases tried?
County court
Horizontal binding effect
Vertical binding effect
When are court decisions binding?
When there are relevant decisions
Facts and laws are similar to those in the current court case
When are court decisions binding?
When there are relevant decisions
Facts and laws are similar to those in the current court case
Requirements for binding precedent
- Judgment must be concerned with a statement of law (not fact)
- Facts must be similar to previous case (otherwise can be distinguished)
Describe the judicial act of distinguishing a case
When a court indicates that the material facts of a previous case are different to those of the current case
Such differences allow a court to avoid applying the law of a previous case
Ratio Decidendi
Reason for the courts decision
Obiter dicta
Other things said by a court which is not necessary for a decision
Won’t act as a binding statement of law BUT may act as a very persuasive authority in a future case where a similar legal issue has arisen
What happens when there is more than one judge and the decision is split?
Majority opinion is given precedent effect. It will be the binding opinion
Statements in the minority opinion can be treated as obiter dictum and used as persuasive authority
What are the requirements for binding precedent?
- Statement of law on the same or similar facts
- Statement must be part of the ratio decidendi: the reasoning behind the ultimate decision of the case
- The statement must have been made by a court superior to the court the the current case is in
If any element is missing then the statement is merely persuasive
Supreme Court does NOT bind itself
A convicted party who wishes to appeal must do so within 28 days but it is possible to submit an out of time appeal
High Court decisions are binding on future High Court cases where the decision was made when the High Court was acting as an appellate court only and not when it acts as a court of first instance
The maximum sentence that may be imposed in Magistrates’ Court for a SINGLE offence is six months’
Purposive rule of interpretation
The court considers the purpose of the legislation before interpreting its words
The High Court is not the court of first instance for a personal injury case.
The decision of the court in litigation is binding so it would not be possible to use ADR if litigation fails
The Commercial Court hears private disputes over contracts involving large sums of money.
The administrative court is a subdivision of the Queen’s Bench Division that hears applications for judicial review
The Court of Appeal is bound by its own decisions in civil cases but there are exceptions to this rule. In criminal cases the Court of Appeal has a generous discretion to depart from one of its own decisions where it is convinced that the case was wrongly decided
Ultra vires
means an action beyond the scope of the actor’s powers
The executive has the authority to exercise the royal prerogative without authorisation from the judiciary or Parliament. The Prime Minister has the power to make and ratify treaties alone BUT by convention the treaty will be put to Parliament
The merger of common law and chancery courts means that a common law remedy and an equitable remedy may be granted in one action by the same court
The Judicial Committee of the Privy Council is the final appellate court for some Commonwealth nations and British Overseas Territories
Hierarchy of judges
Circuit judge
(Recorders)
District judge
Deputy district judge
Either Crown or defendant can apply to High Court to hear appeal on ground that magistrate has incorrectly applied procedure such as denying admissible evidence
