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CII M05 - Insurance Law > 1 - Law and Legal Systems > Flashcards

1 - Law and Legal Systems Flashcards

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1
Q

What are the two classifications of law?

A

Public Law

Private Law

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2
Q

What is public law? What sub-classifications does it include?

A

Law surrounding the legal structure of the State, relationships between the State and members of the community, and relationships between States.

It includes constitutional law, administrative law, and criminal law

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3
Q

What is constitutional law? What bodies does it apply to?

A

Law that governs the structure of the main institutions of government, their relationships between each other, and that of central and local government. It also covers the making of treaties and agreements with foreign states. In the UK it covers the monarchy, MPs, government ministers, the Judiciary, the Civil Service, and the Armed Forces

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4
Q

What is administrative law? What are some examples of areas it covers?

A

Law around the legal relationship between citizens and the various agencies of government. Examples are taxation, compulsory land purchase, local powers over highways, health, education, and various trade licenses

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5
Q

What is criminal law?

A

Law which governs and controls behaviours that may harm or threaten the peace and stability of the community

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6
Q

What is private law?

A

Law which governs the relationships between individuals (including businesses and other organisations)

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7
Q

What are the main branches of private law? Which are most important for insurance?

A
  1. The law of contract
  2. The law of torts
  3. The law of trusts
  4. The law of property
  5. The law of succession
  6. Family law

The most important for insurance are the law of contract and the law of torts

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8
Q

What are some of the main distinguishing features of English law?

A 
Age and continuity
Little codification 
Judge made law
Independence of the judiciary 
Adversarial system
No written constitution
Rule of law
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9
Q

What is meant by the “age and continuity” of English law?

A

The law has developed without interruption for over 900 years. Some cases and statutes are over 500 years old and still relevant today

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10
Q

What is meant for when it is said that English law has “little codification”?

A

Codification is when a collection of laws on a particular subject are reduced to a single written code.

This occurred in some parts of English law (mainly criminal but also civil law including partnerships, sale goods, bills of exchange, and marine insurance) but largely it has not

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11
Q

What is meant by “judge made law”?

A

Binding precedent causes the decisions of judges to become part of the law and allows the law to develop

This differs from some countries where judges exist solely to interpret and apply the law

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12
Q

What is meant by the term “independence of the judiciary”?

A

English judges are largely free from political control and are separate from the government

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13
Q

How are judges appointed? How are they removed?

A

They are appointed by, or on the advice of, the Lord Chancellor or the Prime Minister

Senior judges can be removed only by a motion approved by both Houses of Parliament

Junior judges can only be removed by the Lord Chancellor on grounds of incapacity or misbehaviour

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14
Q

English law is an “adversarial system”. What does this mean and how does it differ from Roman law?

A

An adversarial system means the case is a contest between two sides - the plaintiff and defendant in a civil case, or the prosecution and defence in a criminal case. The court remains neutral and gives judgement only.

Roman law follows an inquisitorial system in which the court does not remain neutral but plays an active part in finding the truth. This is used in England only in the Coroners’ Courts

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15
Q

What are the consequences of English law having no written constitution?

A

A constitution defines the rights and freedoms of citizens. Since English law does not have one, there is simply the freedom to do anything which is not prohibited

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16
Q

How does the European Convention for the Protection of Human Rights impact English law? How was it implemented in the UK?

A

By the Human Right Act 1998. It recognises certain human rights and allows for grievances to be taken to the European Court of Human Rights. It does not mean that the government is under a legal obligation to protect these rights and a statute breaching them would not invalidate the law. It simply requires that when legislation is presented to parliament there must be a declaration of compatibility. The courts should interpret statutes as compatible with the Human Rights Act where possible, and where not issue a declaration of incompatibility, which again does not invalidate the law or force the government to change it

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17
Q

What is the “rule of law”?

A
  1. The powers exercised by politicians and officials must have a proper foundation and come from authority given to them under law
  2. The law should be reasonably certain and predictable
  3. People should be treated equally
  4. No one should be punished or deprived of their property, status, or rights unless given a fair impartial hearing
  5. Everyone should have a right of access to the courts to defend their freedoms and liberties
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18
Q

Generally speaking when did English law begin to develop?

A

1066

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19
Q

What happened in 1066?

A

Following the Norman conquest they established a strong central government and uniform courts. A central royal court was established and travelling judges sent out to check on local administrations. They sought to apply the same rules everywhere. Local variations in law slowly disappeared and a uniform body of law emerged

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20
Q

What was the Court of Chancery? When was it established?

A

A court presided over by the Lord Chancellor, who was a churchman and spiritual advisor to the King, to hear cases concerning equity. More concerned with ensuring that individuals met moral obligations than the law itself. Established 1474

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21
Q

What was held in the Earl of Oxford’s case (1616)?

A

Is there was a conflict between common law and equity, then equity should prevail.

The reason given is that is impossible to make laws that can cover every possible action

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22
Q

What is meant by “equity”?

A

Literally meaning fairness, it is the body of rules and remedies dealt with in the Court of Chancery, which during the 1600s became distinct from common law and operated as a separate system under a different court

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23
Q

What were the Judicature Acts 1873-75?

A

Combined the common law courts and the Court of Chancery into a single system, at the time called the Supreme Court of Judicature. Now called the Senior Courts of England and Wales. Allowed common law and equity to be applied in the same court but equity still took precedent over common law

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24
Q

What are some examples of principles and remedies today that have come from the system of equity?

A

The law of trusts
Specific performance
Injunction
Promissory estoppel

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25
What are the two main reasons that the law should develop over time?
1. Social changes | 2. Technological changes
26
What are the sources of law?
The main sources are legislation and judicial precedent Minor sources are local custom and legal books/treatises
27
What does parliament consist of?
1. The House of Commons 2. The House of Lords 3. The Monarch (as a formality only)
28
What is parliamentary delegation?
Parliament may transfer its law making powers to lesser bodies such as government ministries and local authorities
29
What form does parliamentary legislation make?
Acts of Parliament or Statutes
30
What actions may parliament take?
As the supreme law making body there is, in theory, no limit to their law making powers. They may: 1. Create entirely new law 2. Override existing law 3. Modify or extend existing common law or equity 4. Repeal or modify existing statute law
31
What is a green paper?
A paper published by the government inviting responses from interested parties on a proposed change to the law
32
What is a white paper?
A paper published by the government giving advance notice of a proposed change in law. More formal and definite than a green paper
33
What are the two types of parliamentary bills?
1. Public Acts | 2. Private Acts
34
What is a Public Act of Parliament?
Sets out laws affecting the whole community
35
What is a private act of Parliament?
Benefits a certain individual, organisation or group. For example a local authority seeking the power to make a compulsory purchase
36
What is an example of a private act that had a large impact on insurance?
Lloyd’s Act 1982 Established the Council of Lloyd’s
37
Who can introduce bills to parliament?
1. The government 2. Private members bills (although little to no chance of succeeding without government support since they control the timetable)
38
What stages must a bill pass in the House of Commons?
1. First Reading 2. Second Reading 3. Committee Stage 4. Report Stage 5. Third Reading
39
What happens once a bill has passed all stages of the House of Commons?
It is passed to the Lords where it undergoes a similar process. They cannot completely reject a Public Bill and can only delay it’s progress and suggest amendments After the Lords it receives Royal Assent from the monarch as a formality. Unless otherwise stated, it immediately becomes law
40
What happens if a public bill does not complete all stages in a single session of parliament?
The progress of the bill lapses when parliament is dissolved and it must start over again in the next session. This does not apply to private bills
41
What happens at the first reading of a bill?
The Clerk of the House reads the title of the bill to inform MPs of its existence. It is then printed and publishes. This is largely a formality
42
What happens at the second reading of a bill?
Generally it is referred to a Standing Second Reading Committee which recommends whether a bill should be read a second time. This is to save parliaments time and applies to all private bills and to public bills unless 20 MPs object At second reading the house debates the bill and votes on whether it should proceed
43
What happens at the committee stage of a bill?
It is discussed in detail by a Standing Committee, made up of 20-30 MPs chosen to reflect the political makeup of the Commons. Amendments may be proposed and voted upon. Bills of particular importance (eg the budget) are debated in a Committee of the Whole House
44
What happens at the report stage of a bill?
Amendments made in the Committee Stage are read to the house. They may be debated and in some cases referred back to the committee
45
What happens at the third reading stage of a bill?
There is a final debate in the house. Amendments could be made but generally they are only minor at this late stage. A vote is taken on whether to pass the bill to the Lords
46
What is a Consolidating Act?
Repeals all previous legislation on a particular subject and re-enacts it by bringing it all together under one act. Designed to tidy up the law. An example is the Road Traffic Act 1988
47
What is a Codifying Act?
Both consolidates previous legislation and includes principles from case law. In effect all the law on a subject, both statute and case law, is brought together in one single code. Mostly used for business law eg Bills of Exchange Act 1882, Partnership Act 1980, Sale of Goods Act 1979, and Marine Insurance Act 1906
48
What did the Law Commission Act 1965 do?
Established the Law Commission who review English law and recommended ways in which it can be updated, simplified, and developed. Usually through codification and consolidation. Examples include CIDRA 2012 and IA 2015
49
What is retroactive legislation?
Legislation which impacts rights acquired or actions taken before it came into effect. Also called retrospective
50
What is delegated legislation?
Where an act of parliament sets out a general framework of rules with the detail to be filled in later by civil servants in the appropriate ministry
51
What is an Enabling Act?
An act of parliament which gives persons the power to make law, usually used to give civil servants or ministers the power to make detailed rules and regulations to implement delegated legislation. Also called a Parent Act
52
What are the three main forms of delegated legislation?
1. Statutory instruments 2. Orders in council 3. Bye-laws
53
What are statutory implements?
Departmental regulations or orders issued by a minister or their civil servants to enact delegated legislation
54
What are Orders in Council?
Orders passed by the Privy Council enforcing their delegated powers
55
What are bye-laws?
Laws of local application passed by a local authority under their delegated statutory authority
56
What happens if a dispute arises over the meaning of a statute or words in the statute?
The courts may be called upon to adjudicate on the debate
57
What does the Interpretation Act 1978 do?
Sets out rules of interpretation which apply to statute law: 1. Words used in the singular include the plural and vice versa 2. Use of the masculine gender includes the feminine and vice versa 3. The term “person” includes entities such as companies
58
What are common law rules?
Rules of interpretation which the courts have developed to assist with their interpretation of statute law
59
What is the literal rule of interpretation?
Words and phrases should be taken in their ordinary sense and the ordinary rules of grammar and punctuation applied. This is the primary rule which should be taken over others where possible Includes “noscitur a sociis” - a word must be determined by its context and “ejusdem generis” - a term depends on the words before it
60
What is the golden rule of interpretation?
Where the strict meaning of words would lead to an absurd result and there is an alternative interpretation that would not, the court may choose the latter
61
What is the mischief rule of interpretation?
Considers the mischief the act was intended to correct and applies the application that prevents this mischief. Also called the rule in Heydon’s case (1854)
62
What presumptions will judges make when interpreting statute?
Unless otherwise stated: 1. The act is not intended to create a strict liability 2. No intention to overrule the jurisdiction of courts 3. Not intended to be applied retroactively 4. Only applies to the UK 5. Is not intended to break international law 6. Does not bind the crown (or government) 7. Is not intended to interfere with existing and established rights or allow confiscation of property without compensation
63
What is the Court structure for civil cases? | From lowest to highest
1. County courts 2. High court (broken down to Chancery Division, Family Division and Queens Bench Division) 3. Court of Appeal (Civil) 4. Supreme Court Major cases may start in the Divisional High Courts. The court of appeal can be leapfrogged in some cases
64
What is the Court structure for criminal cases? | From lowest to highest
1. Magistrates courts 2. Crown court 3. Court of appeal (criminal) 4. Supreme Court Serious cases start in the crown court after only a transfer for trial in the magistrates court
65
How would minor civil cases first be dealt with in the courts?
Usually in the County Courts by a single Circuit judge sitting alone
66
How are major civil cases heard at the first instance?
Generally in one of the three divisions of the High Court. A High Court judge may sit alone or a divisional court may consist of 2-3 judges
67
What are the three divisions of the High Court?
1. Chancery Division 2. Family Division 3. Queen’s Bench Division
68
What is the Chancery Division and what does it deal with?
A division of the High Court with jurisdiction over company matters, partnerships, trusts, mortgages, and revenue matters
69
What is the Family Division and what does it deal with?
A division of the High Court with jurisdiction over family law including disputes over family property and children related matters such as adoption and legal guardians
70
What is the Queen's Bench Division and what does it deal with?
A division in the High Court (perhaps the busiest). Has jurisdiction over every type of common law civil action including contract and torts. Also includes a Commercial Court, Admiralty Court (shipping matters), and a Technology and Construction Court.
71
How are appeals from the County Court and High Court normally dealt with?
In the Court of Appeal (Civil Division), normally in a sitting of 3 judges but occasionally a "full court" of 5 or 7 judges may sit. Sometimes High Court appeals may leapfrog this and go straight to the Supreme Court for larger cases
72
What is the final court of appeal in the UK? How many judges are there
The Supreme Court, consisting of 12 Justices. Normally only 5 will hear a case but for some important cases more may sit
73
What is the role of the House of Lords in the UK court system?
They were the final court of appeal and acted as the Supreme Court prior to 1 October 2009. They no longer form part of the UK legal system but their previous decisions still stand as precedent
74
How are minor criminal cases dealt with in the first instance?
By the Magistrates Court with a single judge and a jury of twelve persons
75
How are major criminal cases dealt with in the first instance?
There is a transfer for trial proceedings in the Magistrates Court and the case is first heard in the Crown Court
76
What courts deal with criminal case appeals?
Appeals from the Magistrates Courts go to the Crown Court, which in turn go to the Court of Appeal (Criminal Division), and can eventually go to the Supreme Court
77
What is meant by the doctrine of "stare decisis"?
Let the decision stand - look to previous case to ensure consistency. Essentially means follow precedent
78
A judge is hearing a case in which there was a previous case with similar issues but very different facts. What actions should the judge take?
They must choose which parts of the earlier decision are binding on them and which are not relevant. They are not bound to follow the earlier case, but the principle established in it. This is known as the "ratio decidendi"
79
What is the "ratio decidendi"?
The reason for deciding - the principle established by an earlier case which creates a precedent
80
What is the "ratio decidendi" based upon?
The decision of the judge(s) The reason(s) for the decision The material facts of the case
81
What is meant by the term "obiter dicta"?
Comments made by a judge in an earlier case which are not essential to the decision, eg comments about hypothetical situations or around questions which are not being settled in the dispute. They may be persuasive, particularly if from the Supreme Court, but are not binding precedent
82
In general how does precedent work as you move upwards through the court system?
Decisions of a court are generally binding on all lower courts and themselves (with some exceptions)
83
How does precedent apply to the Supreme Court?
The Supreme Court may overrule their own precedent but it is strongly persuasive and they rarely do so
84
What is the Judicial Committee of the Privy Council? What role do they have in the English legal system?
They are the final court of appeal for some Commonwealth countries and overseas territories but are diminishing as countries leave or set up their own supreme court. It is outside the English court system but the majority of its' members are Supreme Court Justices so its' decisions are highly persuasive and will be followed unless there is a compelling argument for not. It is also the final court of appeal under English law for Ecclesiastic and Prize disputes (captured ships in times of war) and medical, dental, and opticians' tribunals - these decisions are binding
85
Person A loses a case against Person B. In a different, separate case, this precedent is later overruled. Can person A now re-open the case and appeal?
No - whilst the precedent created by the case is no longer "good law" it does not apply retroactively and there is no right of appeal. If this were the case you could never be sure whether a case had ever ended and the courts would be clogged up with appeals every time a precedent was overruled
86
What is meant when a decision is said to be disapproved?
A court offers an opinion that an earlier case is wrongly decided but is not in a position to overrule the precedent. Such an opinion is obiter dictum and does not overrule the ratio decidendi
87
What is meant when a case is distinguished?
A court does not follow a previous decision/precedent as they believe the case before it has significant differences and the facts of the case are different. This allows a court to avoid precedent which would otherwise be binding
88
What is a persuasive precedent?
When an earlier decision or statement is influential to the decision of the court but does not bind it. Examples are decisions made in lower courts, courts outside the English system, obiter dicta, legal textbooks/learned treaties, and law of other jurisdictions (eg Roman law) - the last two are very rarely used
89
What are some advantages of the system of precedent?
Allows for the development of law over time Provides an element of certainty Provides an element of flexibility via distinguishing where precedent would lead to a nonsensical decision Ensures law is based on real world situations rather than theory
90
What are some disadvantages of legal precedent?
The system is rigid and may not be easy to overturn It may be slow to develop as it is dependent on cases being heard for rules to be developed The bulk of case law can make it complex and difficult to navigate It relies on the lawyers of both sides being of equal expertise The principle ("ratio decidendi") may be obscure. Judges may come to the same decision for different reasons
91
What is the Council of Law Reporting?
An organisation setup in 1865 to publish (semi official) reports of cases heard in certain courts. Published annually and weekly
92
What are the three broad reasons why an Insurer might go to court?
1. There is a dispute between the Insurer, Broker, and/or Policyholder 2. There is a dispute between two Insurers 3. The insurer is defending their policyholder (against a liability claim)
93
What is the current system of civil justice based upon?
The Woolf Report, reforms recommended by Lord Woolf in 1996 aimed at improving a system that was slow, costly, uncertain, and complicated
94
What were the main recommendations in the Woolf Report 1996?
1. Three separate "tracks" for cases to follow depending on their value and complexity 2. Shorter timetables for cases to reach court and shorter trials 3. Judges given more responsibility for managing cases 4. Encouraging alternative dispute resolution 5. More use of information technology 6. Documents and procedures simplified - a single set of rules for proceedings in the High Court and County Court
95
What was the result of the Woolf Report 1996?
Civil Procedure Rules were implemented on 26th April 1999 to improve the civil system
96
What are pre-action protocols?
Things parties are expected to do before they start legal action. Includes the sharing of information to aid negotiation and identify and resolve disputes at an early stage. These differ depending on the type of claim
97
What happens if the pre-action protocol is not adhered to?
The party who is at fault may be penalised by the court by having to pay the cost of proceedings, the claimant may be deprived of interest on their award, or the defendant may have to pay extra interest
98
How does a claimant choose which court to bring a civil action in?
A civil action should start in the High Court if the value is over £100,000 (£50,000 if the claim includes personal injury) or started in the County Court if below this amount
99
How does a claimant begin a civil action?
By issuing the claim. They draw up a statement of their case by entering details on a claim form from the court office and providing the "particulars of claim". These include the court in which the action will be brought, the names of the claimant and defendant, circumstances of the claim, and value/remedy claimed
100
What happens when the defendant is first notified of the Particulars of Claim?
They may either admit to the claim and pay the full amount which ends the action, or if they wish to defend the claim they must send to the court either a defence within 14 days or an acknowledgement of service within 14 days and a defence within a further 14 days. If they do not respond the amount claimed may be awarded in a judgement in default
101
Who decides which "track" a case should be allocated to?
The District Judge in the County Court A District Judge or Master in the High Court
102
What are the three tracks to which cases can be allocated?
Small claims track - Normally for up to £10,000 except for personal injury or house disrepair which is usually £1,000 Fast track - Cases not exceeding £25,000 Multi track - Cases over £25,000 or complex cases under this amount (eg it is likely to last longer than a day or significant oral expert evidence is given)
103
What is a stay to attempt settlement?
Either party may ask the court for a delay to proceedings to try to settle the dispute outside the court via alternative dispute resolution. The initial stay is normally a month but longer periods can be ordered
104
What is meant by the power to strike out?
The court may strike out all or part of a case where they feel it makes no sense or shows no reasonable grounds
105
What is the general procedure in a small claims track civil case?
The court will issue a timetable for the case and instruct all parties to issue all documents at least 14 days prior to the set hearing date. The case is heard by a District Judge. No expert evidence is allowed without permission, lawyers are discouraged (although frequently used), and the judge will take an active part in proceedings. This to ensure a quick, cheap, and simple case
106
What is the general procedure in a fast track civil case?
The District or Circuit judge will encourage the parties to agree a pre-trial timetable for exchanging documents. If they cannot then the judge will set one. The case should be heard within 30 weeks and be completed in a single day. Use of oral evidence and cross-examination is limited to attempt to speed up the case. The use of expert witnesses is also limited with usually only one allowed
107
What is the general procedure in a multi track civil case?
The Circuit judge or High Court judge will manage the case by setting the timetables for discovery and progression
108
What is a part 36 offer?
One party makes an offer to the other to settle the case before trial
109
What happens if a part 36 offer is not accepted?
The case proceeds to trial as normal, but if the party refusing the offer fails to "beat" it at trial they may have to pay extra costs. This is to encourage acceptance of reasonable offers and save court time
110
What is the difference between a solicitor and a barrister?
Solicitors give legal advice and may represent their clients in court, generally in lower courts but some may work in higher courts. They are regulated by the Solicitors' Regulation Society Barristers act on the instructions of a solicitor. They provide specialist expertise on complex matters and represent clients in higher courts. They are regulated by the Bar Standards Board
111
What is meant by "legal personality"?
The legal rights, duties, requirements under law, and legal characteristics/qualities of an entity
112
How are individuals referred to under law?
Natural legal persons
113
What are some sub-categories of natural legal persons?
Minors, persons lacking mental capacity, bankrupts, married persons
114
What are corporations?
Non-human legal entities formed by groups of people who want to combine their resources. Also called artificial legal persons or juristic persons. Most common example is a company
115
What are the two types of corporations?
Corporation sole: A legal person representing a position which will be held by a series of people (eg the monarch or a bishop) - this is distinct from the person holding that position Corporation aggregate: A legal person consisting of a number of people
116
What are the 3 ways a corporation may be formed?
1. Registered under Companies Act 2. Royal charter 3. Private act of parliament
117
What are unincorporated associations?
Groups of people which have not been incorporated into a legal entity
118
What are the two types of legal persons?
1. Natural legal persons | 2. Corporations

CII M05 - Insurance Law (10 decks)

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