Legal System of England and Wales (SQE1 only) Flashcards
Where are civil claims started?
- Started in the County or High Court
- CoA and SC only hear appeals
What are tribunals concerned with the interactions between?
State and individuals e.g. immigration, benefits
How many County Courts are there?
One - 173 ‘hearing centres’ spread across E+W
What are the separate divisions of a County Court?
There are none
What are District Registeries?
Various regional centres of the High Court
If a claim is commenced in the High Court, where must it commence?
- In London - Royal Courts of Justice (RCJ)
- Elsewhere - either RCJ or appropriate District Registry
What are the 3 divisions of the High Court?
- Chancery
- King’s Bench Division
- Family Division
Allocation based on convenience and matters of expertise only
What types of claim come under the ‘General KBD list’?
PI, professional negligence, breach of contract, non-payment of debt, breach of statutory duty etc.
What are the ‘Specialist Courts’ within the King’s Bench Division?
- Commercial Court (business disputes, financial matters, fraud, insurance)
- Circuit Commercial Courts (contracts, sale of goods)
- Tech + Construction Court (engineering, computers, environmental, public procurement)
- Admiralty Court
- Administrative Court (and planning court; PP, highway, rights of way)
- Planning Court
What lists come under the Chancery Division?
- Business List
- Insolvency and Companies List (shareholder disputes, director’s disqualification, prejudice petitions)
- Revenue List (taxation where HMRC party)
- Competition List
- Business List
- Property, Trusts and Probate List (landlord/tenant, administration of estates)
- Intellectual Property List
What are the ‘Business and Property Courts’?
- All Lists from Chancery Division and all from King’s Bench (bar Administrative and Planning)
- Done for PR (our judges are specialists)
What types of claims may overlap between Chancery and KBD?
- Contract
- Tort
- Commercial
- Bankruptcy
- Partnerships
- Company matters
What types of claims are exclusive to their division?
- Chancery = land, mortgage, trusts, administration of estates, probate, intellectual property
- KBD = admirality (shipping), judicial review, defamation, PI
What disputes will be heard by the ‘Financial List’?
Part of both courts
Hears financial disputes of £50m or more in value requiring particular judicial knowledge of financial markets
What are the 2 divisions of the Court of Appeal? Where is the court based?
- Civil and Criminal
- Court is based in RCJ in London but has occasional sittings elsewhere
What is the only time permission to appeal to the SC will be granted?
If the issue raised is of ‘general public importance’
Which judges are addressed as ‘My Lord’ or ‘My Lady’?
- Justices of Supreme Court
- Judges of CoA
- High Court Judges
Because it’s the highest form of address, it is used in the high courts and above
Which judges are addressed as ‘Judge’?
- High Court Masters
- District Judges
- Deputy District Judges
Which judges are addressed as ‘Your honour’?
- Circuit judges
- Recorders
You do laps in a racecar on-a(honour) circuit (judge)
To make a noise from it, you blow on-a(honour) recorder
What is the Lord Chief Justice the most senior member of? What do they do in PARL/GOV and what do they lead in?
- Most senior member of judiciary
- Represents views of judiciary of E+W to PARL and GOV and leads in deployment of judges across E+W
Who is Master of the Rolls?
President of Civil Division of Court of Appeal and judge of Court of Appeal - second in judicial importance to Lord Chief Justice
President of the Family Division, President of the QBD, and Chancellor of the High Court will all be what?
Member of the CoA
Where do solicitors have rights of audience?
I.e. can carry out advocacy
Magistrates’ Court, County Court, Tribunals and Appeal Tribunals
I.e. the lowest stage of both court systems + (appeal) tribunals because of how regular they are
Are solicitors authorised to carry out advocacy in the High Court and beyond for civil disputes?
No - this is carried out by barristers
What is required if a solicitor wishes to carry out advocacy in the High Court and beyond?
They need to undertake training and pass assessments to obtain Higher Rights of Audience
If so can even go to SC!
Will a solicitor have a right of audience on appeal?
Yes
What is the criminal courts structure?
Where will all criminal cases start?
The Magistrates’ (or Youth Court if child is 18 and not jointly charged with adult)
Where does the Crown Court hear appeals from?
Magistrates’ court and Youth courts
Where a D has their first hearing before a Youth Court, what are the two places it may go from there?
- Crown Court (as appeal)
- High Court (QBD) as appeal by way of case stated or JR
What is the difference between tribunal of fact and tribunal of law?
- Of fact = person(s) who make decision as to disputed facts
- Of law = person(s) who make decision as to disputed point of law
How is the High Court relevant in the criminal justice system?
Can state a case or judicially review decisions e.g. consider matters not related like irrational failure to grant bail
Where does appeal to CoA lie as of right?
I.e. when is leave not required from the court
In cases of contempt
Where is leave required from to appeal decisions of CoA to SC?
Either CoA or SC
What are the 2 different options for judges in a magistrates’ court?
2-3 lay magistrates and a legal adviser or a (deputy) District Judge
What are magistrates and who is a legal adviser?
- Magistrate = member of public appointed to magistracy
- Legal adviser = legally qualified person who advises lay magistrates on the law
What is the mode of address for a District Judge or lay magistrate?
Sir/Madam
Because they are regular people!
What are the maximum sentencing powers of the magistrates’ for imprisonment and fines?
- Imprisonment = 6 months for summary only offences (unless max penalty is lower), 12 months for either way offences
- Fines = unlimited (less if max penalty is lower)
What are the 3 different options for judges in a Crown court?
Circuit Judge, Recorder, or High Court Judge
Recorder = barrister, solicitor, or judge of a lower or equal court authorised on part-time basis
What is the mode of address for judges sitting in the Crown Court?
- Your Honour = recorder, vast majority of Circuit Judges
- My Lord/Lady = High Court judge
How many people sit in a jury? What role do they play in sentencing?
- 12 people
- Have no role in sentencing - only decide whether D is guilty or not
In what circumstances can a Crown Court take a plea and/or sentence for a summary only offence?
Where it is joined to an indictable or either-way offence
What are the maximum sentencing powers of the Crown for imprisonment and fines?
- Imprisonment = life (or less when statutory max lower)
- Fines = unlimited (less if max lower)
Where a D pleads/is found guilty of an either-way offence in the magistrates’, can they only receive a sentence from the magistrates’?
No - can be committed to Crown Court and receive any sentence that the court would pass for that offence
When the Crown Court is acting as an appeal court, from where will it hear an appeal and who will the judges be?
- Will hear appeals from magistrates’ and youth courts
- Judges will have two lay magistrates with a judge advising
Can the D receive a more severe sentence on appeal to the Crown Court?
Yes!
What judges will there in the Court of Appeal?
- CoA judges
- High Court judges
- Crown Court judges authorised to sit in CoA
Crown Court judge unale to sit where trial conducted in Crown Court by a High Court judge)
How are judges in the CoA addressed?
My Lord/Lady
Is there a jury in the CoA?
No
When will a CoA hear first hearings?
They won’t - is not a trial court
Can the CoA ever recieve new evidence?
In exceptional circumstances
Can the CoA sentence more severely than Crown?
No - can dismiss, uphold, or replace with anything that is on par or less than Crown Court initially imposed
Where the AG applies to CoA, what effect does this have on D’s acquittal?
No effect - but AG wishes for CoA to clarify the law
Which judges sit on the SC and what are they addressed as?
- Supreme Court Justices
- Addressed as My Lord/My Lady
Will there always be a tribunal of law and tribunal of fact in every court?
Yes - but will sometimes be different people
What are all the appeal courts in the criminal justice system?
- Crown Court
- High Court
- CoA (Crim Div)
- SC
What is the rule of precedent?
Once a principle of law has been laid down, future cases with the same material facts must be decided in the same way
On what courts are High Court decisions binding?
On all inferior courts
Is the High Court bound by its own decisions?
No - but they are highly persuasive
Is the Supreme Court bound by its own previous decisions?
Yes, but it can depart from them when it appears right to do so
Horton (2007) - departed from a previous decision to extend the time limit to 3 years in PI claims; would not impact upon contracts, criminal law unaffected and no detriment to public administration
What decisions is the CoA bound by? What courts are bound by CoA decisions?
- SC and HOL bind CoA
- CoA decisions bind all inferior courts
What are the 3 exceptions to the CoA being bound by its own decisions?
- Where CoA faced by 2 conflicting decisions of its own, present court chooses which to follow
- Where a decision of its own conflicts with a SC/HOL decision even though it was not expressly overruled (i.e. CoA decision is inconsistent with subsequent decision of SC/HOL)
- If a previous decision of CoA is considered to have ben given per incuriam
What does it mean for a decision to be given per incuriam?
In ignorance of relevant stautory authority or binding provision of court; awareness of which would have led to a different result - oversight must have been sufficiently serious
Where will the per incuriam exception not apply?
Where earlier case law…
- Was not fully argued
- Appears to take a wrong view of authorities
- Misinterpreted a statute
Where an earlier CoA wrongly distinguishes or misinterprets a SC/HOL decision, can a later CoA overrule this?
- No! It is bound by decision of previous CoA; disagreement with reasoning of earlier court is insufficient ground for not following precedent
- The correct approach is for the ‘error’ to be considered by the Supreme Court/ House of Lords.
Distinguish ignorance (per incuriam) with wrongly distinguishes/misinterprets (not per incuriam; knew about the authority just applied it wrong = CoA still bound by decision of previous CoA)
What is the difference between Crim and Civ CoA divisions in terms of being bound by previous decisions?
Crim Div should be more flexible in the interests of justice where the liberty of a subject is being determined (justice more important than certainty)
Do the exceptions applying to the CoA also apply to the High Court?
Yes - criminal flexibility is also the same
On which courts are decisions of the High Court binding?
County and Magistrates’
Is the Crown Court bound by the Divisional Court of the KBD?
Yes
Will a Crown Court bind another Crown Court or Magistrates’?
No!
Do County or Magistrates’ courts bind themselves?
No
Are Privy Council decisions binding?
The Privy Council is the final appeal court not for the courts of England and Wales but for a number of commonwealth and overseas territories.
No - but persuasive
Who sits on the Privy Council?
Same judges as Supreme Court
When should English and Welsh courts follow decision of Privy Council?
Where the Privy Council expressly directs that domestic courts should treat its decision as representing the law of E+W
What is the difference between a solicitor and barrister?
- Solicitor = work within a firm or ‘in house’ with a company and work directly with a ‘lay client’
- Barrister = sole practicioner generally forming together in ‘Chambers’ - little direct contact with ‘lay client’
Who regulates solicitors and barristers?
- Solicitors - SRA
- Barristers - Bar Standards Board
For a contentious case, how are the responsibilities of a solicitor and barrister split?
- Solicitor - instructed by client, analyses case and provides evidence, manages case as it progresses to trial, liaises with client and other party
- Barrister - instructed by solicitor on behalf of client, drafts SOC and advises on complex legal issues, potentially involved in strategy, undertakes trial prep and steers strategy, liases with court, presents arguments to court
Can a barrister discriminate based on the nature of a case or the client?
I.e. must they accept work given to them
No - must accept any work in a field in which they profess to practice and at the court at which they normally appear, so long as fee is at usual rates
What is the difference between primary and secondary legislation?
- Primary = AOP; put before PARL as bills, debated and passed usually by both Houses
- Secondary (subordinate) = law created by ministers under powers given to them by AOP; used to fill in details of primary legislation
Secondary enables law to be enforced and operate in daily life
What is the principal form of delegated legisaltion? What do they do?
Statutory instruments - allow provisions of Act to be brought into force or altered without PARL having to pass new act
Can SIs be quashed?
Yes - can challenge lawfulness in Administrative Court - if successful the court can quash it
What is the difference between public (general) Acts and private (personal) Acts?
- Public = acts which relate to a matter of general concern
- Private = one which relates to particular places or particular people
How does the process differ for a public and private act?
- Public = debated in both houses, outside bodies can lobby
- Private = stem from proposal from large organisation like local authority or private company wishing to acquire certain powers (e.g. build a bridge)
What will the promoter of a private act convince PARL of?
Convincing PARL of utility and desirability of the proposal
What is the difference between government bills and private members’ bills?
- Government bills = represents GOV policy and drafted by official PARL draughtsman
- Private members’ bill = promoted by particular MP (often after lobbying by members of public)
Ministerial proposals are issued in the form of what papers?
- Green paper - for discussion
- White paper - official GOV policy
Will bills always start in the commons?
No - can start in the Lords
What bills must be started in the Commons and cannot be defeated in the Lords?
Bills dealing with public finances
What is the 5-step legislative process in each house?
- First reading
- Second reading
- Committee stage
- Report stage
- Third reading
What is the difference between a first, second and third reading?
- First = formality; read out and date set for second reading
- Second = main principles of Bill debated
- Third = final debate and vote on bill; goes to other house if passed
What is the difference between the committe and report stage?
- Committee - detail of bill scrutinised by legislative committee; can be amended
- Report - proposed amendments are debated and there is a vote on committee’s report
Is the monarch legally obliged to assent to any Act passed by PARL?
No - but there is a convention to that effect
Is essentially a formality
When will an Act of PARL take effect from?
The day it receives Royal Assent/midnight the same day unless there is a contrary provision in statute
What is more common than a bill coming into force the same day it was enacted?
A commencement section detailing when Act is to come into froce
What will the Sec of State with responsibility in the area within which statute concerned do typically?
Re bringing legislation into force
Issue a SI bringing Act into force
What is the structure of an Act of PARL?
- Short title (will be cited by this)
- Long title (preamble)
- Date enacted
- Schedule
Suella Likes Deporting (Asylum) Seekers
Will all sections of an Act come into force the same day?
No - different sections might come into force on different dates
What is meant by ‘extent’ of legislation?
The geographical area to which it applies
What are the 5 rules of statutory interpretation?
- Literal rule
- Golden rule
- Mischief rule
- Purposive rule
- Contemporary approach
The ‘traditional rules’ of statutory relevant not really relevant - court merely takes overall view, weighs all relevant interpretative factors, and arrives at a balanced conclusion taking all factors into account
What is the literal rule? Is PARL’s intentions considered?
Words in statute given ordinary, plain and natural meaning; courts need not consider what PARL might have meant
LITERAL MEANING AS THE WORDS SAY
Will the literal rule always be used regardless of its effect?
Results in absurdity = use golden rule instead
What is the golden rule?
If ordinary meaning of words produces great inconsistency, absurdity or inconvenience, the court will be convinced that ordinary words were not the intention
e.g. ‘in the vicinity of’ should be read as ‘in or in the vicinity of’ to make sure actual place is taken into account
Opposite to literal rule
The price of GOLD(en) is ABSURD - just like the legislation would be if the ordinary meaning were to be given effect
What is the mischief rule?
Examines the original purpose of the particular provision under consideration - 4 key questions:
1. What was the common law before making the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy for the mischief had Parliament intended to provide?
4. What was the true reason for Parliament adopting that remedy?
IS DEFUNCT TODAY - method of interpretation subsumed into purposive rule
What is the purposive rule?
Purposive method of construction; degree of liberality permitted and influenced by context
Most recent rule
How has the PURPOSE been influenced by the context
What might be approached somewhat differently under purposive rule?
Social welfare legislation, tax statutes
What is the contemporary approach?
Instictive approach of judges; combination of literal and purposive rule - look at both strict and superficial meaning of words
Classical contemporary = literal
Modern contemporary = purposive
Idk
What will prevail between purposive and literal rule?
Purposive where it provides a clear answer
What are the 3 linguistic presumptions to assist in interpretation?
- Expressio unius est exclusio alterius
- Ejusdem generis
- Noscitur a sociis
Exclusio = closed list
Generis = general/same kind
Sociis = company (social)
Under expressio unius est exclusio alterius, what is the case if there is express mention of one thing?
Re lists
It excludes extension to others i.e. is a closed list and PARL means only those things
Under ejusdem generis, what happens where general words follow list of specifc words?
General words interpreted so as to restrict them to same kind of objects as specific words (i.e. characteristics in common of the specific words; general words must include these)
E.g. ‘house, office, room’ = all indoors and ‘other places’ cannot include outdoors area
Under noscitur a sociis, what is meant by ‘a word is known by the company it keeps’?
Words of a statute will be understood in the context of the statute itself
e.g. ‘interest, annuities and other annual payments’; ‘interest’ has to be annual, as ‘other’ implies the first two are annual
What is a conjoined case?
Cases where a court is hearing two separate appeals at the same time because they involve a similar point of law
What is a puisne judge?
The lowest rank of the superior court judges
