Legal system of England + Wales & Sources of law

Question 1

The mischief rule

Answer 1

The oldest of the ‘rules’, which pre-dates the modern increase in legislation, is the mischief rule.
Courts must consider four questions when applying the mischief rule:

(a) What was the common law before the making of the Act?
(b) What was the mischief and defect for which the common law did not provide?
(c) What remedy for the mischief had Parliament intended to provide?
(d) What was the true reason for Parliament adopting that remedy?

this method of statutory interpretation has now been completely subsumed into the purposive approach.

Question 1

The literal rule

Answer 1

It means that the words used in a statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic aids as a dictionary. The courts will not need to consider further what Parliament might have meant

Question 2

The golden rule

Answer 2

to take the whole of the statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification,

and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear

Question 3

Purposive approach

Answer 3

Allows the court, where appropriate, to interpret legislation in a (purposive) way to seek compatibility with the European Convention on Human Rights.

Question 4

What are the intrinsic aids?

Answer 4

• Short title of the Act (descriptive)
• Long title of the Act (only where body is ambiguous
• the preamble to the Act (if and only if body is ambigious)
• Side notes (limited)
• Punctuation
• Examples - Persuasive
• Schedules - Highly persuasive

Question 5

What are the extrinsic aids?

Answer 5

• The Interpretation Act 1978
• Dictionaries
• Parliamentary records such as Hansard

Question 6

Linguistic presumptions -
Expressio unius est exclusio alterius

Answer 6

(“the expression of one thing is to the exclusion of another’)

Question 7

Linguistic presumptions -
Ejusdem generis

Answer 7

(‘of the same kind’)

Question 8

Linguistic presumptions - Noscitur a sociis

Answer 8

(a word is known by its associates)

Question 9

Precedent is binding on subsequent cases when:

Answer 9

1. the facts in the precedent case and the current case are sufficiently analogous to apply to the same legal reasoning
2. the relevant legal reasoning was part of the ratio of the precedent and not obiter
3. the precedent case was heard in a superior (or equally ranking court)

Question 10

Precedent is not binding but merely persuasive if

Answer 10

any of the requirements are missing, or if the precedent originates from a court outside of English and Wales

Question 11

Precedent in the hierachy of courts:
Supreme Court

Answer 11

Binds all lower courts.
Does not bind itself

Question 12

Precedent in the hierachy of courts:
Court of Appeal

Answer 12

Binds all lower courts.
Normally binds itself, subject to the Young v Bristol Aeroplane exceptions

Question 13

Precedent in the hierachy of courts:
High Court

Answer 13

Binds all lower courts
For cases heard at first instance, it does not bind it self
For cases heard at appeals, normally binds itself subject to the Young v Bristol Aeroplane exceptions

Question 14

Precedent in the hierachy of courts:
Crown Court, County Court and Magistrates

Answer 14

Bind no other courts

Crown court is not bound but strongly persuaded by its prior decisions

Question 15

Young v Bristol Aeroplane exceptions:

Answer 15

1) Where its previous decisions conflict
2) where its previous decision has been implicitly or explicitly overruled by the Supreme Court, or
3) where a previous decision was made ‘per incuriam’ - i.e. carelessly without a regard to the relevant law

Question 16

obiter dicta

Answer 16

statements made relelvant to the case, but do not form part of the essential legal reasoning behind the decision reached

Question 17

ratio decidendi

Answer 17

decisive legal reasoning

Question 18

King’s Bench Division

Answer 18

The King’s Bench Division is predominantly a civil court but also has some criminal jurisdiction

Judges who hear civil cases in the King’s Bench Division mainly deal with ‘common law’ business – notably actions relating to contract disputes and claims in tort.

Contract cases include failure to pay for goods and services and other breaches of contract, while KBD tort cases include:
* Wrongs against the person, e.g. defamation of character and libel;
* Wrongs against property, e.g. trespass;
* Wrongs which may be against people or property – e.g. negligence or nuisance;

-KBD judges also preside over more specialist matters, such as applications for judicial review
-High Court Judges also hear criminal cases in the Crown Court, including in its various regional centres (alongside Circuit judges and Recorders)

Question 19

Administrative Court

Answer 19

The Administrative Court is part of the King’s Bench Division. It is responsible for the administrative law jurisdiction of England and Wales.

Its varied work is directed at the lawfulness of actions of central and local government, regulatory and disciplinary bodies, inferior courts and tribunals, and other public bodies and officials exercising public functions. It has both a civil and criminal jurisdiction (notably appeals ‘by way of case stated’ from the magistrates’ courts).

Not all judicial review proceedings are dealt with by the Administrative Court. The Upper Tribunal (Immigration and Asylum Chamber), ‘UTIAC’, has JR powers in relation to most immigration decisions and since November 2013 deals with the vast majority of such cases.

Some of the cases in the Administrative Court will be heard by a Divisional Court which is a court consisting of two or more judges. These will usually be in criminal cases including a number of the more difficult extradition cases. Most of the 71 High Court judges assigned to the King’s Bench Division regularly sit in the Administrative Court, as do some judges in the Chancery and Family Division.

Question 20

The Chancery Division

Answer 20

Based in the Rolls Building in London and in eight principal regional trial centres, the Chancery Division is now the largest unit for handling business and property cases in the country.

The head of the Chancery Division is the Chancellor of the High Court. There are currently 18 High Court judges attached to the Division. In addition, in London, there are six judges who are referred to as Masters (one of whom is the Chief Master), and six Insolvency and Companies Court Judges (one of whom is the Chief Insolvency and Companies Court Judge). There are also a number of Specialist Circuit Judges and District Judges who sit outside London and (in the case of the Circuit Judges) occasionally in London.

The Chancery Division incorporates the Insolvency and Companies Court, the Patents Court and the Intellectual Property Enterprise Court (IPEC).

The remainder of the work of the Division is referred to as ‘general Chancery’ work. This is the area of practice where the law of equity is most significant.

Question 21

The ‘Business and Property Courts’

Answer 21

The Business and Property Courts cover the work of the specialist courts within the Rolls Building in London and at the civil and family courts in other cities. They bring together the work of the Chancery Division and specialist courts of the King’s Bench Divisions of the High Court.

The business and property courts include:

• The Commercial Court (e.g. shipping, sale of goods, insurance and reinsurance)
• The Business List
• The Admiralty Court
• The Circuit Commercial Court (previously the Mercantile Court)
• The Technology and Construction Court
• The Financial List (e.g. banking and financial markets)
• The Insolvency List

Question 22

The Family Division

Answer 22

Judges who sit in the High Court can hear all cases relating to children and have an exclusive jurisdiction in wardship – a type of court order which gives custody of a minor (under 18) child to the court, with day-to-day care carried out by an individual(s) or local authority.

Judges in the High Court also hear appeals from the Family Court, which is the main court of first instance for both public and private family matters (at an equivalent level to the county courts). Briefly, public family law concerns the safety and protection of children and related issues, and private family law concerns divorce and ancillary financial arrangements.

Question 23

Solicitors, and rights of audience

Answer 23

Solicitors can carry out advocacy in the Magistrates’ Court; County Court; the Tribunals; and Appeal Tribunals.

Solicitors are not generally authorised to carry out advocacy in the ‘Higher Courts’, which, for the purposes of civil disputes, means the High Court, Court of Appeal and Supreme Court. This work would ordinarily be carried out by barristers.

If solicitors wish to carry out advocacy in the High Courts, they need to undertake training and pass assessments to obtain Higher Rights of Audience.

Question 24

The Court of Appeal

Answer 24

The Court of Appeal is based at the Royal Courts of Justice in London but has occasional sittings elsewhere
It consists of a Civil Division and a Criminal Division, which between them hear appeals on a wide range of cases covering civil, family and criminal justice. In some cases, a further appeal lies, with permission, to the Supreme Court, but in practice the Court of Appeal is the final court of appeal for the great majority of cases.

All Court of Appeal judges are senior judges with lengthy judicial experience. Appointment is by the monarch on the recommendation of a selection panel convened by the Judicial Appointments Commission

The judges of the Court of Appeal are the Heads of Division (the Lord Chief Justice of England and Wales, the Master of the Rolls, the President of the King’s Bench Division, the President of the Family Division and the Chancellor of the High Court) and the Lords Justices of Appeal.

The Lord Justices of Appeal are referred to verbally as “Lord/Lady Justice [Surname]” or, in writing, as “[Surname] LJ”.

Question 25

Court of Appeal - Civil and Criminal Divisions

Answer 25

The Civil Division hears appeals from the High Court, County Courts (if judgement was given by a Circuit Judge) and certain tribunals such as the Employment Appeal Tribunal and the Immigration Appeal Tribunal.

It is headed by the Master of the Rolls. Cases are generally heard by three judges, consisting of any combination of the Heads of Division and Lords Justices of Appeal.

The Criminal Division hears appeals from the Crown Court. It is headed by the Lord Chief Justice, who is the Head of the Judiciary and President of the Courts of England and Wales. The Lord Chief Justice assumed the role of Head of the Judiciary following the Constitutional Reform Act 2005, which changed the role of the Lord Chancellor from a mixed judicial and political one to a fully political one.

Cases in the Criminal Division are generally heard by three judges, consisting of the Lord Chief Justice or the President of the King’s Bench Division or one of the Lords Justices of Appeal, together with two High Court Judges or one High Court Judge and one specially nominated Senior Circuit Judge.

Question 26

The Supreme Court

Answer 26

The Supreme Court is at the apex of the legal system of the United Kingdom. It hears appeals from courts in England and Wales, Scotland and Northern Ireland on the most significant cases.

It was established by the Constitutional Reform Act 2005 to replace the old Appellate Committee of the House of Lords. However, it did not start sitting until October 2009.

There are twelve Supreme Court judges, known as ‘Justices’. They are known as “Lord/Lady [surname]”. The full Court sits when the most important cases, usually those of constitutional significance, are heard. The senior judge is known as the President.

Permission to appeal to the Supreme Court is required and will only be granted if the issue raised is of ‘general public importance’.
Recent issues include:

• The availability of damages for the payment of commercial surrogacy fees
• The lawfulness of prorogation of Parliament by the Prime Minister
• Whether the applicable standard of proof in inquest proceedings in the case of suicide is the civil or the criminal standard

Question 27

Civil appeals

Answer 27

It should be noted that, in cases of high importance, which are very likely in any event to reach the Supreme Court, it is possible for the case to by-pass the Court of Appeal. This clearly saves time and legal costs.

The procedure is known as a ‘leapfrog appeal’ and means that the judgment of the High Court is appealed directly to the Supreme Court. This was provided for by sections 12-16 the Administration of Justice Act 1969 in relation to the House of Lords and it has since been confirmed that the practice also applies to the Supreme Court.

Question 28

Magistrates’ court will be heard by..

Answer 28

• a bench of three lay magistrates (non-legally qualified volunteers ‘JPs’) assisted by a qualified clerk, or
• a single district judge - professional, full-time salaried judfe

Question 29

Privy Council hears…

Answer 29

• appeals from certain commonwealth countries
• church matters
• some professional disciplinary matters

Question 30

CILEX - rights of audience?

Answer 30

Same rights as solicitors

Question 31

Modes of address - Supreme Court / Court of Appeal

Answer 31

My Lord or My Lady

Question 32

Modes of address - High Court

Answer 32

My Lord or My Lady

Question 33

Modes of address - Circuit Judge or Recorder

Answer 33

Your Honour

Question 34

Modes of address - District Judge, Master, Tribunal Judge

Answer 34

Judge

Question 35

Modes of address - Lay Tribunal Member

Answer 35

Sir, Madam

Question 36

Modes of address - Registrar

Answer 36

Registrar

Question 37

Modes of address - Magistrate

Answer 37

Your Worship or Sir, Madam