01. The Legal System of England and Wales

Question 1

What are the 3 legal jurisdictions in the UK?

Answer 1

(1) England and Wales
(2) Scotland
(3) Northern Ireland

Question 2

What is the definitional difference between equity and other sources of law?

Answer 2

Equity is designed to achieve justice in accordance with “natural law” where the application of strict legal rules would be harsh or unfair.

Question 3

3 characteristics of equitable remedies?

Answer 3

(1) Judge’s sole discretion
(2) Requiring a party to do or not do something
(3) Party seeking relief must come with clean hands

Question 4

What is the hierarchy of parliamentary legislation in the UK?

Answer 4

In principle, all parliamentary legislation is of equal validity and effectiveness under the principle of parliamentary sovereignty;’ but there are “constitutional” statutes (e.g. HRA 1998) and the Magna Carta is a royal charter of rights

Question 5

What is the function of a statutory instrument?

Answer 5

To allow the provisions of a Parliamentary Act to be brought into force or altered wtihout Parliament having to pass a new Act

Question 6

What is the status of Acts of Senedd Cymru (3 points)?

Answer 6

(1) Same status as Acts of UK Parliament
(2) Not challengeable on common law grounds
(3) Cover devolved matters (UK Parliament will not legislate with respect to these matters without Senedd Cymru consent)

Question 7

Significance of 31 December 2020?

Answer 7

This is “IP Completion Day”. EU law no longer prevails over any domestic law passed or made on or after 31 December 2020, but still prevails over pre-IP completion day law in the event of conflict.

Question 8

Define a legal “custom” and its four defining characteristics. Is it binding on the English courts?

Answer 8

Rules that have obtained the force of law in a particular locality. Must be
(1) reasonable
(2) immemorial
(3) continued without interruption
(4) certainty as to the locality where the custom is said to exist

Does not bind courts but prescription may be used as a customary standard of legal validity

Question 9

What is HMCTS?

Answer 9

His Majesty’s Courts and Tribunal Service. An executive agency of the Ministry of Justice which administers the Court of Appeal, High Court, Crown Court, Magistrate’s Courts and COunty Court.

Question 10

What are the two principal civil courts of first instance?

Answer 10

High Court and County Court

Question 11

3 characteristics of the County Court

Answer 11

(1) Only hears civil cases
(2) District Judges hear interim matters or trials below GBP 25k, with Circuit Judges or Recorders hearing others
(3) Case may be transferred to defendant’s local County Court hearing center if desired

Question 12

What cases does the High Court hear?

Answer 12

First-instance for higher value or specific claims; and criminal and civil appellate court for cases from lower courts

Question 13

What is the principal business of the King’s Bench Division?

Answer 13

Hearing multi-track claims for damages based on common law civil actions

Question 14

What is the principal business of the Chancery Division?

Answer 14

(1) Contracts for land and (2) Matters about trusts and the administration of estates

Question 15

What is the principal business of the Family Division?

Answer 15

(1) Family proceedings and (2) non-contentious probate matters

Question 16

If my personal injury claim is GBP 50,000, which court can I bring it in?

Answer 16

I can only bring it in the High Court if the case is complex, high monetary value or outcome has public importance; otherwise County Court

Question 17

If I have a damages or debt claim for 100,000, which courts can I bring it in?

Answer 17

Must bring in County Court.

Question 18

I have a claim for foreclosure of a mortgage worth GBP 150,000. Which court can I bring it in?

Answer 18

County Court.

Question 19

I have a claim for regarding a declaration of a trust worth GBP 500,000. Which court can I bring it in?

Answer 19

High Court

Question 20

Which 3 civil cases permit a right to trial by jury?

Answer 20

(1) Fraud
(2) Malicious Prosecution
(3) False Imprisonment

Question 21

When is permission to appeal from the County Court or High Court granted

Answer 21

Either the court considers the appeal would have a real prospect of success; or there is another compelling reason for the appeal to be heard

Question 22

When is permission to commence a second appeal from a County Court decision granted?

Answer 22

Either the court considers the appeal would have a real prospect of success AND raises an important point of principle or practice; or there is another compelling reason for the appeal to be heard by the Court of Appeal

Question 23

Describe the two situations in which a High Court decision may be escalated to the Supreme Court (one has four conditions and the other has two)?

Answer 23

(1) Leapfrogging main: requires (i) point of law of general public importance; (ii) involves interpretation statute of the trial judge is bound by a higher court precedent; (iii) the trial judge has granted a certificate of satisfaction and (iv) the Supreme Court has given permission to appeal

(2) Leapfrogging alternative: (i) point of law of general public importance; AND (ii) decision relates to matter of national importance; (iii) result of proceedings so significant that hearing is justified; OR (iv) the judge is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the CA

(3) Second appeal: requires Supreme Court permission

Question 24

What are the three routes to having appeal heard by Supreme Court?

Answer 24

(1) Request permission from court that made the decision being appealed within 28 days of the decision
(2) If refused, apply to Supreme Court for permission (also within 28 days of the decision)
(3) Leapfrogging

Question 25

Magistrate's Courts: what is their main function and what is the maximum custodial sentence they can impose?

Answer 25

To deal with summary criminal offences (which can only be tried in the MC). Max custodial sentence for a single offence is 6 months; and for two or more offences it is 12 months

Question 26

Three types of cases heard by Crown Court?

Answer 26

(1) indictable offence (judge and jury) (2) appeals from the MC (3) Sentencing decisions for convictions by the MC

Question 27

What is an either-way offence? What are two relevant considerations in advising client?

Answer 27

An offence that may be tried in both the MC and CC. CC sentences are more severe, but CC offers chance of jury acquittal

Question 28

Three circumstances a defendant convicted by a MC may appeal to CC? Deadline for notice of appeal?

Answer 28

(1) Pleaded not guilty and appeals against conviction (2) Pleaded not guilty and appeals against sentence (3) Pleaded guilty and appeals against sentence Notice of Appeal must be given in writing to the MC and prosecution within 15 business days of sentence being passed

Question 29

What are the two types of criminal appeals to the High Court

Answer 29

(1) Appeals by way of case stated (court erred in law or misdirected itself or acted in excess of jurisdiction) - made to the King's Bench decision (2) JR applications (lawfulness of decision is challenged) - made to the Administrative Court

Question 31

When is leave required to appeal to the CA from a Crown Court conviction or sentence? WHat is the deadline?

Answer 31

Where the appeal is on a question of fact or mixed fact/law, appeal requires leave of the TJ or the CA (cf appeal on a pure matter of law-appeal as of right). 28 days

Question 32

When will the prosecution appeal to the CA from a decision of the Crown Court?

Answer 32

Either against a terminating ruling (with leave of the TJ or CA) or as part of an A-G reference (where the A-G considers sentence too lenient--requires leave of CA)

Question 33

2 conditions for prosecution or defence to appeal to the SC from a decision of the CA Criminal Division?

Answer 33

(1) CA certifies that the decision involves a point of law of general public importance (2) Either the CA gives leave to appeal within 28 days of its reasoned decision or the UKSC gives permission within 28 days of the CA's refusal of leave

Question 34

When can an appeal be made from the High Court of Justiciary to the UKSC?

Answer 34

Only for "compatibility issues" under human rights legislation, pursuant to the Scotland Act 2012: requires permission of the High Court of Justiciary or the Supreme Court within 28 days of the HCJ's refusal OR devolution issue (must be seriously arguable and sufficiently important, requires permission of HCJ or UKSC)

Question 35

What are the six rules of statutory interpretation?

Answer 35

(1) Literal Rule (2) Golden Rule (ordinary and plain) (3) Mischief Rule (4) Purposive Approach (5) Expressio Unius Est Exclusio Alterius (6) Words of uncertain meaning can be interpreted based on the types of words or phrases with which they are associated

Question 36

Distinguish between intrinsic and extrinsic aids to statutory interpretation? Name 3 conditions for the latter

Answer 36

Intrinsic aids: black letter sources that can be found within the statute itself Extrinsic aids: Usually excluded unless the extrinsic aid clearly discloses the mischief targeted by the legislation ((i) legislation is ambiguous, obscure or leads to absurdity' (ii) material is a statement by a minister or other promoter of the Bill plus any necessary accompanying parliamentary material and (iii) statements are clear)

Question 37

What are the 3 exceptional circumstances where the Civil Division of the CA may disregard its previous decision?

Answer 37

(1) Conflicting CA decisions (2) Cannot be reconciled with a UKSC decision (3) Previous decision was given *per incuriam* (ignores binding authority or statute)

Question 38

What is retained EU law?

Answer 38

All EU-derived laws as of the end of the transition period on 31 December 2020. These prevail over conflicting UK law

Question 39

What is assimilated EU law?

Answer 39

All primary legislation, unexpired subordinate legislation and unexpired retained direct EU legislation which is EU derived. Domestic enactments take precedence over assimilated direct EU legislation and the latter must be interpreted so far as possible, consistently with the former

Question 40

What is the difference between reinstatement and restatement with respect to EU law?

Answer 40

Reinstatement: selective reinstatement of the original supremacy of EU law over specific pieces of legislation where deemed necessary (deadline 23 June 2026; S. 7 of REUL) Restatement: UK ministers and devolved authorities have extensive powers to adapt, consolidate or codify assimilated law through a domestic statutory instrument