Legal Systems of England and Wales

Question 1

What is a Common Law system

Answer 1

an adverserial legal system by which decisions on disputes are made by referring to:
1. applicable statute and regulations
2. court judgements in previous cases

Question 2

What is a civil law system?

Answer 2

An inquisitorial system in which legal teams on both sides assist the judge, who is the inquisitor that draws facts from witnesses and the evidence.

Question 3

What are the Sources of Law for England and Wales?

Answer 3

1. Statute: Acts of Parliament - primary source
2. Statutory Instruments - Act gives provision for another body to provide regulations with its consent - secondary legislation
3. International Treaty - royal prerogative allows executive (PM/Cabinet) to bind UK to rules of international law
4. Case Law
5. Works of Authority - textbooks
6. Convention - non-binding but observed

Question 4

What is the structure of an Act of Parliament?

Answer 4

SHORT TITLE: e.g Offensive Weapons Act (2019)
CITATION: e.g. chapter number - Offensive Weapons Act (2019) is c.17
LONG TITLE: description of its purpose
DATE OF ROYAL ASSENT: the day it became an Act instead of Bill
PREAMBLE: fixed block of text conferring authority of Crown on Act, making it law
PART: an Act can be divided into parts
SECTION: individual provisions of an Act
MARGINAL NOTES: short notations above or alongside each section that give insight into what provision is about
SUBSECTION: further breakdown provision
EXTENT PROVISIONS: define situation in which law applies
ENABLING PROVISIONS: sometimes an Acts provisions are deferred from being in force until the relevant minister produces regulation giving that provision effect

Question 5

What are the different types of Law?

Answer 5

1. Public Law: relates to function of statute and individual relations with it
2. Private Law: relationships between individuals - contract and tort
3. Criminal Law: body of law intervening in actions of individuals:
4. Civil Law: law that intervenes in relationships between individuals when they go awry - breach of contract
5. Substantive Law: the law as it is which governs adjudication
6. Procedural Law: governs how adjudication of disputes operates e.g. time limits and required paperwork

Question 6

What approaches do courts use to give meaning to statute?

Answer 6

( the law interpreted as a whole - words are not looked at in isolation)
1. the literal rule:
ordinary and natural meaning
2. the golden rule:
interpret according to ‘intent of legislature’ (Parliament intends wider interpretation to avoid inconsistencies/absurdities in literal rule)
3. the mischief rule:
(works backward) look to law before legislation was passed to find ‘gap’/ mischief the legislation attempted to cover
4. the purposive rule:
commonly used. Gives judges greater scope to seek purpose/intent (the ‘why’) of Parliament through looking at extraneous things e.g. explanatory notes and debates on Bill (diff to domestic rules as it starts off with mischief instead of intent)

Question 7

What maxims do judges use to help in their interpretation of the law

Answer 7

expres io unius est eclusio alterius
expression of one thing is the exclusion of the other

noscitur a sociis (known by the company it keeps)
rule of construction: meaning of words interpreted in the context of other words, in the order that they appear

in pari materia (upon the matter or subject)
- when 2+ statutes are in pari materia, their interpretation can reference one another

ejusidem generis (of the same type)
where specific words are followed by general words, the general words are limited to things of the same class as the specific words.

Question 8

What is the criminal court structure

Answer 8

All criminal cases go to Magistrate Court, were they are tried depending on severity.
- less sever ‘summary offences’ tried without jury are heard in Magistrates Court
- more sever ‘indictable offences’ are tried in the Crown Court

Question 9

What is the principle of equity?

Answer 9

In England, there was the common law courts (strict law) and chancery courts (who decided cases on principles of justice and fairness - equity), which merged in 1875. This allowed both a common law remedy and equitable remedy in the same court. This allowed for injunctions that are not available at law.

However, upon seeking either remedy requirements must be satisfied. equitable remedies are discretionary and the condition of ‘fair and just’ must be met.

Question 10

What presumptions are used when interpreting the law?

Answer 10

1. presumption against allowing statutes to alter the common law
2. presumptions against removing the courts jurisdiction
3. presumption that statutes cannot be retrospectively applied

Question 11

What are the ‘aids’ to interpretation

Answer 11

Intrinsic - within the statute
statute must be read as a whole (through the structure)
Extrinsic - outside the statute
e.g. dictionaries, explanatory notes, Hansard

Question 12

What is the Civil Court Structure?

Answer 12

1. Lower Courts:
   County Court - civil cases
   Family Court - family cases
2. The High Court - can deal with cases on first instance and appellate courts for lower value
   HC consists of
   Kings Bench Division: Multi Track claims and Administrative Court
   Chancery Division: land, contracts, trusts, wills
   Family Division
3. Court of Appeal - civil decision
4. Supreme Court

Question 13

What are the sub-divisions for county court cases?

Answer 13

Small Claims Track - less than £10,000
Fast Track - less than £25,000
Multi-Track - more than £25,000

Question 14

What are the alternatives to the Civil Courts?

Answer 14

ADR - Alternative Dispute Resolution
1. Mediation: conciliatory approach - third party mediator but parties make decision on how to resolve dispute
2. Arbitration: adversarial - third party arbitrator who makes the final order which is also enforceable
3. Negotiated Settlement: no third party. parties negotiate with each other and agree how to settle dispute

Question 15

What is the Criminal Court Structure?

Answer 15

1. Lower Courts (first instances)
   Magistrates Court - trial courts of first instance for most criminal offences and some civil matters. made up of lay magistrates or full time district judges. max sentence is 6 months or a fine.
   Tribunals - appeals from executive agency decisions
2. Crown Court - appeals from MC and first instance cases for all indictable only/either way offences. made up of HC judges and circuit judges
   - hear appeals pertaining to verdict and sentence. if defendant is found guilty only the sentence can be appealed.
3. Court of Appeal
4. Supreme Court

Question 16

What courts does a Solicitor have a right of audience?

Answer 16

the lower courts: magistrates, county court and family court
no right to appear before the Crown Court, High Court, Court of Appeal or the Supreme Court
- however they can gain this right by completing additional assessments and applying for higher rights of audience with the SRA.

Question 17

What factors decide if an Civil Appeal will be heard and when is it granted ?

Answer 17

1. a. Seniority of judge presiding over the original case
   b. Court in which judge sat when reaching the decision that is being appealed
2. permission to appeal must be sought from court that made original judgement - if court refuses an application can be made
3. appeal will be granted if
   a. claim has a real prospect of success
   b. there is another pressing reason to hear the case

Question 18

Destination of Civil Appeals

Answer 18

1. County Court - district judge on Small Track - senior circuit judge - after is HC - CoA
2. If start in HC then HC - CoA - SC
   if case of public significance - issue of statutory interpretation, case will go from HC to SC

Question 19

Destination of Criminal Appeals

Answer 19

note: if defendant has pled guilty, only sentence can be appealed

1. High Court - either party can appea; on ground that magistrate has incorrectly applied procedure e.g. denying evidence. 3 judges will review this which may then be affirmed, reamended, returned to Magistrates Court
2. Administrative Court (Division of the High Court) - appeal on ground that process of judgement was incorrect and court acted in ultra vires (beyond its scope)
3. CoA - only convicted party can appeal - both conviction and sentence within 28 days of it. it is still possible to submit appeal after to the CCRC (Criminal Cases Review Commission)

Question 20

What is the system of precedence?

Answer 20

a system based on principle of stare decisis (let decisions stand). Courts holdings in previous cases dictate the result of later case involving the same law and facts

Question 21

Define Vertical vs Horizontal Binding

Answer 21

1. Vertical - decisions of higher courts bind lower courts. SC -> CoA -> Courts of First Instance
2. Horizontal - concerns courts of the same level:
   a. Supreme Court - does not bind itself
   b. Court of Appeal - generally binding.
   criminal - has discretion to depart from its own decisions
   c. High Court -
   1st instance - does not bind itself
   appellate - normally binds itself

Question 22

What is the ratio decidendi and Obiter dictum and do they have binding precedent?

Answer 22

Ratio decidendi is the essential parts of a case to the courts decision e.g. facts, laws and interpretation. This is BINDING

Obiter dictum is other statements made in a judge’s summation. This is a non-binding but persuasive authority.

note: when multiple judges hear a case, if they all agree (unanimous) the ratio from the unanimous judgement is binding. If it is not unanimous the ratio from the majority opinion is binding. minority can only be obiter dictum