The English Legal System Flashcards
What are the principle sources of law in England and Wales?
- Retained EU legislation
- European Convention on Human Rights
- Judgements of the European Court of Human Rights
- Statutes of the UK Parliament
- Secondary legislation
- Case law
- International treaties and conventions
- Customs (those existing since time immemorial)
What is the “doctrine of implied repeal”?
If a new statute contradicts an older one, even if it does not reference the older one, the older one is considered repealed.
What is the difference between public law and private law?
Public law relates to actions of the state, such as the prorogation of Parliament by Boris Johnson, and such as criminal law (since it is the government which is prosecuting you).
Private law relates to actions between private individuals, such as most of patent law. These are things you can sue other people for.
Define stare decisis and state the consequences thereof.
Stare decisis is the principle that precedents of appropriate authority bind later judges. The legal reasoning of a more senior court must be followed by a more junior court.
It requires that there be a defined heirarchy of courts, and that there be a way of knowing what parts of a judgement are binding: ratio decidendi vs obiter dicta.
Which courts are bound by themselves?
The Court of Appeal and the Supreme Court.
Name the three divisions of the High Court.
The Chancery Division - deals with land, mortgages, trusts, administration of estates, probate, bakruptcy, IP, and company matters. It contains IPEC and the Patents Court.
The King’s Bench Division - deals with general tort and contract matters, admirality and commercial matters.
Family Division - deals with all matrimonial and related matters.
NB there are other courts within the High Court which do not fall into these three categories, such as the Administrative Court, which deals with judicial reviews.
List the different circumstances which each allow for a claim to be brought directly to the High Court.
- Personal injury claims with a value of £50,000 or more.
- Other claims with a value of more than £25,000.
- Claims where an Act of Parliament requires that action start in the High Court, or where the High Court has exclusive jurisdiction over the subject matter (i.e., judicial reviews).
- Where the complexity of the case (and possible importance to the general public of the case) makes it necessary, and the (lower) court agrees.
Define ultra vires and state its importance.
When secondary legislation is made outside of the delegated power (e.g., someone used the trade mark rules to set a rule on patents). To succeed in a judicial review, the applicant needs to show that the secondary legislation was made ultra vires.
What are the three grounds for a judicial review? Give examples for each.
Illegality
* Unlawful sub-delegation (the wrong person took the decision).
* Error or law or fact.
* Impermissible fettering of discretion (e.g., if the delegated power is supposed to be used on a case-by-case basis but a general policy is adopted instead by the decision maker).
Procedural impropriety
* Failing to follow the correct procedure for exercising power.
* Breach of “natural justice” (i.e., by exhibiting bias).
Irrationality
* If something is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.
When can one apply for a judicial review?
Within 3 months of the grounds for the claim.
What remedies are available for a judicial review?
Quashing orders - quash a decision (i.e., revoke it).
Mandatory orders - force a public body to exercise its legal powers where it has previously refused to do so (e.g., in cases of unlawful delegation).
Prohibition order - comples the defendant to cease a course of action.
These are all so called “prerogative orders”.
Someone may also seek an injunction, damages or a declaration.
What are the four principles of statutory interpretation?
- Literal rule - the default.
- Mischief rule - interpret the Act with with regards to the purpose of the Act, and such that effect is given to that intention.
- Golden rule - if the literal meaning of words produces an absurd result, and a secondary meaning could be applied, then adopt the secondary meaning.
- Statute to be read as a whole - if the meaning of a phrase in one section makes another section nonsensicle, such meaning will not be adopted.
Example of application of principles: “men shall not kill each other” literally only includes men, and not women. But the mischief rule and golden rule both make it clear that this law should also apply to women.
What are ratio decidendi and obiter dicta?
Ratio decidendi is the principle of law upon which a decision is based - the binding part of a judgement.
Obiter dicta are remarks made by a judge which are not essential to hiis judgement and are therefore not binding (e.g., a use of analogies).
Define res judicata.
The principle that parties who have already litigated an issue upon which the court has pronounced may not re-litigate that issue.
What is arbitration? Give details.
Arbitration is a form of ADR. The parties must have a contract between them which governs the arbitration - the consent of both parties is needed for arbitration, unlike litigation.
The parties chose where the arbitration takes place (the seat) and the contract determines who the arbitrator is or who the arbitrator can be appointed by (e.g., the contract may allow the court to appoint an arbitrator).
An arbitrator’s power is defined from the contract and from the Arbitration Act.
Arbitration proceedings are usually confidential.
Decisions by an arbitrator are final and are difficult to challenge. They can be appealed to the High Court on a point of law only, but the court is often reluctant to intervene. The decisions are usually enforceable abroad under various arbitration conventions.
