Legal system of England and Wales Flashcards
Describe the role of the Magna Carta in the evolution of English law.
The Magna Carta, signed in 1215, was a foundational document in English law, establishing the principle that everyone, including the king, is subject to the law.
What impact did the Glorious Revolution have on English law?
The Glorious Revolution in 1688 reinforced the supremacy of Parliament in English law, leading to the constitutional principle that the monarch cannot govern without Parliamentary consent.
When was the common law system put in place?
post-Norman Conquest (1066),
establishment of centralized system of courts and the development of common law.
imposition of law above local systems and customs
Who developed equity?
system of principles and rules developed by the courts of Chancery
important to distinguish between law applied in the King’s courts from the rules of equity
What was the writ system? What was its main issue
To be able to pursue a common law claim in the King’s Courts, the claimant had to purchase a writ from the Chancellor.
The writ system soon became rigid. The forms of these writs became fixed, and only Parliament could allow a new type of writ to be issued. If a claimant could not find an existing writ to cover his case, he had no claim which the court would try.
This system was very stiff and had a stultifying effect on the growth of the substantive law.
For each writ there was a corresponding fixed procedure and the common law became hidebound by complex and restrictive procedures.
Aggrieved litigants felt that problems weren’t being solved justly and fairly, because the stiff common law system of the King’s Court was designed to solve issues punto. Not to solve them “fairly”.
Such issues combined together to encourage the emergence of the law of equity.
What is the purpose of the system of equity
Aim is to supplement rather than usurp the common law.
Provide greater flexibility.
Allow Lord Chancellor to act outside the strict rules of procedure developed by the common law and to decide cases according to a sense of fairness.
Where common law and equity conflict - which previals?
Equity
s.25 of the Judicature Act 1873-1875). This is now found in section 49(1) of the Senior Courts Act 1981.
What did the Judicature Acts 1873-1875 do?
key point: fusion of the courts
abolished the old division between the three common law courts (king’s court for criminal; exchequer ie finance; Common Please ie land) and the Court of Chancery (equity),
-> instead created a single High Court and Court of Appeal which could apply the rules and remedies of both common law and equity.
When are equitable remedies awarded in lieu of common law damages?
where damages are not adequate
Are equitable remedies available on a discretionary basis or as a matter of right?
discretionary
Are common law damages available on a discretionary basis or as a matter of right?
available as a right
what is the doctrine of stare decisis?
binding precedent
What are the 3 main elements of a judgement?
a. summary of the facts
b. statements of law which will include ration decidendi and (often) obiter dicta which is persusive
What is the difference between ration decidendi and obiter dicta
ratio -> reason for the decision; binding on other courts; legal principle/ rule on which the decision is based appleid to the material facts of the case
obiter dictum -> a comment on an area of law; not binding but may be highly persuasive and influential in subsequent cases
The CA will generally try to maintain its own precedent however, Lord Greened in Young v Bristol Aeroplane Co. Ltd [1944] outlined the 3 main exceptions to this - what are they?
- If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
- If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme Court or House of Lords, it need not be followed.
- If the CA’s previous decision was made per incuriam (error where CA was not aware of the relevant authority which would have been binding on the court)
