The Legal System Flashcards
Do solicitors have the right to audience
The right of audience is granted automatically to solicitors but they can’t not exercise this right with the higher courts until the necessary and appropriate training/qualification is completed.
Remember there is separate rights of audiences application and training for criminal and civil.
Recall the ranks of court judges/officers and recall who are the senior judges
Recall the court system
How do you decide where a case should be hear when both the county court and high court have jurisdiction?
The key cases are as follows:
* Civil cases with a value of less than £100,000 (or less than £50,000 for personal injury cases) should be commenced in the County Court (Civil Procedure Rules (CPR) 1998, Practice Direction 7A, 2.1).
* Where cases have a value of more than £100,000 (more than £50,000 for personal injury cases) the claimant can choose to commence proceedings in the Queen’s Bench Division, the Chancery Division or the County Court.
* Acase should be commenced in the High Court where the case has complex facts, or the outcome of the case has an element of public interest, and the claimant believes the High Court is the suitable court. In all other cases, the case should be commenced in the County Court rather than the High Court (Practice Direction 7A, 2.4).
How do you decide where a case should be heard when both the county court and height court have jurisdiction?
- Civil cases with a value of less than £100,000 (or less than £50,000 for personal injury cases) should be commenced in the County Court (Civil Procedure Rules (CPR) 1998, Practice Direction 7A, 2.1).
- Where cases have a value of more than £100,000 (more than £50,000 for personal injury cases) the claimant can choose to commence proceedings in the Queen’s Bench Division, the Chancery Division or the County Court.
- Acase should be commenced in the High Court where the case has complex facts, or the outcome of the case has an element of public interest, and the claimant believes the High Court is the suitable court. In all other cases, the case should be commenced in the County Court rather than the High Court (Practice Direction 7A, 2.4).
Breakdown the divisions in the high court
Queen’s Bench Division
The Queen’s Bench Division has the most varied jurisdiction of the three divisions. Generally, the Queen’s Bench Division hears contract and tort disputes that are complex and/or involve substantial sums of money. It also contains several specialist courts, including the following:
* Administrative Court
* Admiralty Court
* Commercial Court
* Circuit Commercial Courts
* Technology and Construction Court.
When the court sits as a Divisional Court of the Queen’s Bench Division, it can hear criminal appeals from the magistrates’ court and the Crown Court, and judicial review hearings. These types of appeals are discussed later in this chapter (see page 22).
Chancery Division
The Chancery Division also hears a wide range of civil cases. It typically hears business or property disputes that are complex and/or involve substantial sums of money. The Chancery Division also incorporates specialist courts, including the following:
* Business and Property Court
* Patents Court
* Intellectual Property Enterprise Court.
The Chancery Division can hear a range of matters, including the following:
* land and property disputes
* mortgage matters
* trusts, administration of estates and probate matters
* bankruptcy matters
* partnerships and company matters
* intellectual property matters.
Family Division
The Family Division has jurisdiction to hear complex family law cases. The Family Division have exclusive jurisdiction to hear international child abduction cases and cases that involve the inherent jurisdiction. It is important to note that the Family Division of the High Court and the Family Court are distinct courts. The Family Court is a separate court that hears most family law cases. Some cases that begin in the Family Court but are considered to be very complex can be transferred to the Family Division of the High Court. The Family Division can also hear some appeals from the Family Court.
What is the difference between primary and secondary legislation?
Primary legislation is passed by acts of parliaments
Secondary legislation is passed by delegated legislation - by government ministers (or other bodies), by virtue of power given in an Act of Parliament - ‘the parent act’
Breakdown the different bill?
- Public bills - Propose new laws, or amend law that affect the public at large
A. Government bills - introduced by a government ministers
B. Private members bills - not introduced by the government - Private bills - introduced by organisations - such as local authorities or private companies, proposing a change that affect a specific individual or group.
- Hybrid bills - affect the public at large but significantly affect an individual or group
Outline the legislative process
Breakdown the legislative process
Breakdown the legislative process
What powers do the HOL have when it comes to Veto or delaying a bill?
They cannot veto a bill unless it suggests to extend of parliament beyond 5 years and enact constitutional reform.
Public bills can be delayed by to a year. After that it can be reintroduced and bypass the HOL, going into royal assent.
HOL can only delay money bills (concerns tax or public money spending) can receive royal assent after one month it was introduced into the HOLs.
These rules do not apply to private bills or bills that were introduced in the Lords.
What is the primary role of the judiciary?
To apply the law, if the law is unclear - then they must also interprete the law
What are the statutory rules of interpretation and in what order are they applied?
- The literal rule - give the words used in the statue it’s ordinary meaning
- The golden rule - to depart from literal rule, and interpret in a different way to avoid a absurd or repugnant outcome.
- The mischief rule - allows courts to consider the ‘mischief’ parliament was trying to remedy and interpret the statue in that way to address the ‘mischief’.
- The purposive approach - interprets the acts by considering the purpose of the act
What are rules of language and name me the 3 rules?
What is presumptions of statutory interpretation and list the 4 rebuttable presumptions.
What are aids of interpretation and can you list external and internal aids?
Aids of interpretation are devices that the judge may use when interpreting a statue. These can be internal or external.
Internal - aids found within the statue
- short/long title
- introduction/preamble
- marginal notes - references that help the reader understand its purpose
- Punctuation
- schedule - define or explain the terms
- examples within the act
External - aids found outside the statue
- dictionaries
- interpretation act
- explanatory notes
- academic writings
- treaties and conventions
- Hansard - official copy of the parliament debate of the act - can only rely on if the following conditions are stratified
1. The case involves legalisation that is ambiguous or leads to absurdity
2. The material relied upon are statements made in parliament from promoters of the bills
3. The statements relied upon are clear and can assist interpretation in relevant legislation.
What are general principles around the operation of precedents?
- Courts below the high court do not create precedents that are binding on other courts.
- Some courts may be bound by their own decision
- Courts are not bound by the decision of inferior courts
- Courts are bound by the decision set by superior courts
When can the Supreme Court depart from its previous decisions?
When there is a compelling reason to do so/ it seems right to do so.
When can the court of appeal depart from its previous decision?
Where one of these exceptions are present:
1. Where there are two conflicting Court of Appeal decisions, they may choose which one to follow
2. When the cases have been made per incuriam - at the time of making the decision, the correct and relevant legal authorities were not applied.
What effect does European court precedents have?
They are persuasive not binding.
When does the court follow, reverse, overrule or distinguish a precedent?
Follow - if the facts of the case are the same or similar to a previous decision. Thus, they apply the precedent.
Reverse - if the lower courts interpretation or application of the law was incorrect/wrong. Thus, the higher court sets a new precedent that needs to be followed.
Overrule - no longer an accurate representation of the law - thus ceases to be good law.
Distinguish - the material facts differ, thus the precedent is not applied.
What are reserved legal activities and who can carry out these activities?
Reserved legal activities can only be carried out by those authorised by SRA or excerpt for authorisation.
- Excersising the right of audience
- The conduct of litigation
- Preparing or issuing legal documents involving the right to transfer, charge or register land, OR court proceeding, OR personal/ real estate.
- Probate activities
- Notarial activities - certifying documents
- Administration of oaths
What’ are the differences between a public procession and assembly?
What are the remedies available for judicial review?
What are the remedies available for juridical review?
What are the remedies available for juridical review?
