Outcome A1: English Legal System Flashcards
What are the judges on County Courts called?
Circuit Judges or Recorders (part time) or District Judges
What is the jurisdictional threshold for County Courts?
Personal injury under 50k must be In county court. Contract and tort claims under 100k must be in count court. Above 100k can be in county or high court. Amount in issue under 25k a circuit judge hears the claim. Above that, a district judge hears the claim.
Where do you appeal a county court decision?
A district judge decision is appealed to a circuit judge. A high court judge hears appeal from a circuit judge.
What equity jurisdiction does a county court have?
A claim in equity under 350k concerning: admin of estate; trust; mortgage foreclosure; specific performance or property; maintenance of minor; winding up or dissolution of partnership; or relief against fraud or mistake.
Are the rules of evidence different in county court and high court?
No.
What tracks are cases assigned in civil court?
- Small claims.
- Fast track.
- Multi-track.
Can the high court hear small claims or fast track cases?
No. Only the county court. The county court can have jurisdiction of multi-track cases.
What characteristics are used to determine if a case is a small claims track case?
- It must be under 10k, provided that in personal injury cases the claim for pain and suffering also cannot exceed 1k.
- tenant claims for repairs where repairs are less than 1k and other damages less than 1k.
- the case is not complicated.
- unlawful eviction, harassment in real property and any claim relating to dishonesty is generally not on small claims track.
What costs are awarded in small claims case Study?
- Court fees are generally paid by losing party.
- expenses relating to travel and lost income can be awarded.
- expert costs (though experts are unusual).
Legal fees are generally not awarded (though the court has the power to do so). Most litigants represent themselves.
What do the English call a pro se plaintiff?
Litigants in person.
Does a small claims litigant have an appeal as of right?
No. Needs permission of district judge hearing case or circuit judge hearing appeal.
Once a civil track is assigned, can it be changed?
Yes.
What are factors for assigning a case to the fast track?
The case is under 25k, involves more complex facts than small claims (if under 10k), takes less than a day trial and needs no more than 2 areas of expert testimony.
May a case be assigned the multi-track if the amount issue is under 10k?
Yes. If the case involves couples issues of fact or law, is of high public importance or involves numerous witnesses.
What are the divisions of the High Court?
- Queens bench
- Chancery
- Family
All are part of the same court but have different procedures. Penalties apply if a case is begun In The wrong division.
Does the High Court hear appeals or is it a court of first instances?
It is both. It is a court of first instance for complex civil cases and hears both civil and criminal appeals.
What are the general thresholds for having trial in the High Court?
- claims for money in excess of 100k (less than that will generally be heard by a county court)
- claims for personal injury in excess of 50k (except malpractice claims)
What is role of the Queens Bench?
It hears multi-track civil claims as well as review of administrative bodies exercising public law functions. It contains admiralty, commercial, administrative, technology and construction courts.
Where is an appeal filed from a queens bench ruling?
In civil cases, the Appeals Court (civil division) though the Supreme Court may hear a case on leave. Criminal matters are, subject to leave, heard boon appeal by Supreme Court.
What is jurisdiction of chancery court?
Generally:
- contracts for land
- estates, wills
- trusts
- winding up and dissolution of companies with share capital in excess of 120k
- tax appeals
In what cases do litigants have a right to a jury?
- fraud
- malicious prosecution
- false imprisonment
The court may refuse a jury in complex cases.
How many jurors sit on civil cases?
8 in county court.
12 in high court.
Is a unanimous verdict required in civil jury trials?
No. A majority of 7:1 is required in county court.
A majority of 11:1, 10:2, 10:1 or 9:2 is required in high court.
How many jurors sit on a coroners inquest?
A jury is only required for deaths in police custody or caused by police. The jury is from 7 to 11. A super majority is needed (not more than 2 dissenters).
What are the two principal civil courts of first instance?
County Court and High Court. Magistrate courts have limited civil authority over matrimonial, tax disputes, child custody and a few others.
What courts can hear appeals?
- County courts hear appeals from fast track cases by a higher judge. A circuit judge hears appeals from a district judge.
- High courts hear appeals from circuit judges in county courts.
- Court of Appeals hears appeals from circuit judges in multi-track cases and from the high court
- the Supreme Court (on points of law only).
Is appeal from the county court an appeal of right?
No. Appeal is granted only if there’s a real prospect of success or a compelling reason. Prison sentences or committal orders can be appealed without permission.
When can you appeal a small claims case?
When there is a serious error of law or irregularity.
Can you appeal directly to the Supreme Court from the High Court?
Yes, with permission. Case must involve a point of law of general public importance.
Is a second appeal ever of right?
Generally only granted with permission – this includes appeals from circuit judge to high court judge, high court to appeals, appeals to Supreme, etc . . . where it would be the second appeal.
Do you need permission to bring an appeal of a civil ruling?
Yes. The court of first instance or the appeals court must grant. There needs to be a real prospect of success or some other compelling reason.
Is the Supreme Court of the United Kingdom the highest court?
Yes, except for criminal cases in Scotland which are heard by the High Court of Justiciary of Scotland.
Which court in England has power to hear disputes concerning devolution and legal powers of devolved governments?
Supreme Court.
Can the Supreme Court strike out primary parliamentary legislation?
No. The parliament is the supreme law making body.
If parties mediate, can the mediation discussions be used as evidence?
No. The courts encourage ADR and may penalize parties for failure to attempt mediation.
What are the criminal courts of first instance and what kinds of cases can they hear?
- Magistrates Courts. Composed of 3 lay judges advised by a court clerk or a district judge, these courts hear “summary offences” not subject to jury trial and “either way” offences where the defendant consents to no jury. Maximum sentence is 6 months and 5K (extended to 12 months if more than 2 offences).
- Crown Court. This deals with more serious offences and is tried by a jury. It also hears appeals from Magistrate Court and deals with some sentencing from Magistrate Court cases. On appeal from Magistrate Court, there is a judge and to magistrates (lay judges).
What is judge’s role in criminal trial?
Judge instructs jury and may summarize evidence and comment on implausibility and contradictions.
On what basis may a juror be stricken in a criminal trial?
- The prosecution may order a juror to “Stand by for the Crown” and need not give a reason. The AG in 1988 indicated this would be used only where juror is manifestly unsuitable or after vetting in terrorist trial. Vetting is a rarely used process where police check background of jurors in terrorist, gangland and other special trials.
- For cause by either party. This may not be on the basis of protected categories (e.g., race, religion, etc . . .)
- Challenge to the array. This is based on claim that summoning officer was biased and is rarely used.
Must a criminal conviction be unanimous?
No. IN a 12 jury trial, you need only 10 jurors. In a 10 jury trial, 9. A jury cannot be instructed that a majority can decide until at least 2 hours of deliberation.
Must a jury confine itself to the indicted offences?
No. If there is an underlying offence that is not charged, a defendant can be found guilty.
May jurors disclose the subject of their deliberations?
No. It is an offence under the Contempt of Court Act.
Must a jury always be used in criminal trials (that are not summary offences)?
No. If there is a real risk of jury tampering and the court finds protective measures insufficient, it can order a bench trial.
What is appeal by way of “case stated” in a criminal court?
An appeal on the ground that Magistrates have misapplied the law or acted beyond their jurisdiction. The magistrates must “state their case” to the High Court which hears the appeal. THIS IS CONSIDERED A CIVIL APPEAL and is not paid for out of the criminal docket (but through legal aid).
What authority does the Administrative Court have to review criminal cases?
The Administrative Court reviews appeals from the Magistrate Court (non-indictable offences) and is limited in scope to appeals based on the way in which the Magistrate Court has conducted a case. It can quash (overturn a decision), stay a case or order a case tried.
May the courts invalidate an act of parliament if it fails to comply with the European Convention on Human Rights?
Courts must interpret all laws in accordance with the ECHR. If a court finds a law is incompatible it is sent back to parliament but is not annulled unless parliament does so.
What is the Human Rights Act 1998? What are key provisions?
It imposts the European Convention on Human Rights into all criminal court proceedings.
- Prohibition on torture;
- Right to liberty and security (challenging bail);
- Right to a fair trial.
How is a criminal case begun?
Most start in Magistrates Court and are begun with a summons based on an “information” or by being “charged” at the police station.
What is the English equivalent of a DA or AG?
The Crown Prosecution Service.
Name the three classes of criminal offences.
- Summary Offences. Minor matters such as traffic violations.
- Indictable Only Offences. All jury trial cases.
- Either-Way Offences. Cases that can be before a jury or judge only.
In indictable-only cases, what is the role of the Magistrate?
The defendant initially appears before a Magistrate Court which will send the case to Crown Court if the case is indictable only. The Magistrate Court also determines remand status.
What is delegated or subordinate legislation?
What we would call regulations – rules made by ministers to supplement and prescribe details to Acts of Parliament.
What is the “literal rule” of statutory interpretation?
Words are to be given their ordinary meaning even it if leads to “manifest absurdity.” An examples is Fisher v. Bell in which a shop owner displaying knives with price tags did not violate statute against “offer for sale” of weapons, since under common law it was merely offer to treat.
What is the “golden rule” of statutory interpretation?
Words are to be given their ordinary meaning UNLESS it would lead to an absurd result. In that case, the grammatical and ordinary sense of the words may be interpreted to avoid the absurdity.
What is the “mischief rule” of statutory interpretation?
Courts should look to the gap in common law that parliament intended to close with the statute, not just plain meaning. An example is a law prohibiting soliciting sex “on the street” applied to solicitation from a balcony (not literally on the street).
What did Heydan’s Case establish?
The 1584 case established the “mischief” rule of interpretation holding that a court look to 4 matters in determining meaning of a statute: (i) what was the common law; (ii) what mischief or defect is the statute intended to address; (iii) what remedy does the statute give; and (iv) what is the true reason for the remedy?
What is the difference between the “purposive approach” to statutory interpretation and the “mischief rule”?
The purposive approach seeks to understand the what parliament intended to achieve through the legislation where as the mischief rule seeks to determine only what gap parliament intended to cover.
What is the predominant approach to statutory interpretation and why?
The purposive approach is predominant in part because of the influence of EU law.
What is the role of EU law in England?
The UK is a member of the EU and as such EU law takes precedence. The UK passes legislation giving effect to EU law and such legislation must be interpreted to achieve the results intended by the EU law.
Do UK courts interpret EU law directly.
Yes. Under EU practices the purposive approach to interpretation – gleaning intent in view of wider social and economic issues – is required.
What does “Expressio Unius Est Exclusio Alterius” mean?
In interpreting laws, where one thing is expressly mentioned, it will be assumed that all other things are excluded (e.g., a law repealing an earlier law will only be read as a repeal of the mentioned law, not related laws).
What does “Noscitur A Sociis” mean?
Words can be understood in context unless they are expressly defined.
What are common aids to interpretation used by courts?
- Statutes should be read as a whole.
- Intrinsic aids to reading include (i) preambles, (ii) headings, (iii) punctuation, (iv) definition sections, (v) titles and (vi) schedule.
- Extrinsic aids include (i) legislative history (parliamentary debates – which used to be excluded), (ii) secondary law and (iii) other statutes.
What presumption is used in interpreting penal statutes?
Ambiguity is resolved in favor of the accused.
Are statutes presumed to have a restrospective effect?
No.
What presumptions generally apply in connection with property and private rights?
Statutes are presumed against deprivation or property and private rights.
What does stare decisis mean?
Prior decisions on similar facts are binding on future courts that are inferior to the deciding court.
What does ratio decidendi mean?
This describes the portion of a decision that is actually binding: pronouncements of LAW that are necessary to reach the decision.
What is obiter dicta?
Dicta are pronouncement that are not necessary to the decision of a case and are therefore not binding. They can be influential and become ratio in later cases.
What is a practice direction?
Practice direction is a statement of law issued under the power of the High Court, Supreme Court or Lord Chief Justice that, although not binding, are generally treated as precedent.
Who has the power to issue a practice direction for civil courts?
The Lord Chief Justice under Section 5 of the Civil Procedure Act. He may designate this authority under the Constitutional Reform Act and has designated the Master of the Rolls.
In which courts do the practice directions to the Civil Procedure Rules 1998 apply?
Civil litigation in the Queen’s Bench Division and Chancery Division of the High Court; litigation in the County Court (other than family court) and appeals to the Civil Division of the Court of Appeals.
What is the hierarchy of courts for purposes of Stare Decisis.
- European Court of Justice on matters of EU law. (Decisions of the European Court of Human Rights are not binding, but are persuasive.)
- Supreme Court of the UK (formerly the House of Lords) The Supreme Court may depart from its own prior decisions when it appears right to do so (used sparingly).
- Court of Appeal.
The civil division may overturn its own past decisions where (a) there are conflicts with other court of appeals decisions, (b) if precedent cannot be reconciled with later Supreme Court decisions, even if not expressly overruled or (c) where the prior decision was “per incurium” or very narrowly the result of failing to consider binding authority or statute (this is not a basis for ignoring Supreme Court precedent).
The criminal division applies stare decisis less rigidly where a person’s liberty is at issue. - The High Court
Not bound by other high court decisions where high court was one of first instance.
Bound by High Court acting on appeal with 2 or more judges.
Not bound by High Court acting on appeal with only 1 judge. - Other courts
Their decisions have no binding power on any courts, including their own.
How do you avoid precedent?
Primarily by distinguishing.
How can a case be overruled?
By a higher court (e.g., Supreme Court of a Court of Appeals decision, but not the Court of Appeals of its own decision) or by statute of an unrelated case.
What is reversal?
Overturning a lower court decision in the same case.
What kinds of authority are persuasive?
- Courts in Scotland, Ireland,
- Commonwealth jurisdictions, esp. Australia, Canada, New Zealand and US
- Dicta of English courts.
- Inferior English courts.
What are the three main decision-making bodies in the EU?
- The European Parliament: directly elected by EU citizens and passes new laws;
- The Council of the European Union: Represents each Member State; and
- The European Commission: upholds the interests of the Union as a whole and proposes new laws.
What is the high court in Europe called?
The Court of Justice.
What is the Court of Auditors?
It checks the finances of EU activities.
What are the 4 treaties that founded the EU?
- Treaty establishing the European Coal and Steel Community (signed in 1952, expired in 2002);
- Treaty establishing the European Economic Community (aka “The Treaty of Rome”) which came into force in 1958;
- Treaty establishing the European Atomic Energy Committee;
- Treaty on European Union (“Treaty of Maastricht”), in force in 1993, established all Member nationals were EU citizens and created timetable for common currency.
What is an intergovernmental conference?
An IGC is a meeting of member states to amend the founding treaties.
What is the difference between the EC and the EU?
The EC (European Community) concerns the social and economic functions of the single market and is less broad than the Union.
What is the Treaty of Lisbon?
This amended the Treaties of Maastricht and Rome to increase democracy and transparency (it also revised the number of the Articles).
Were does sovereignty rest in the EU?
With each Member States. The states delegate specific powers to the EU.
What does the EU exclusively regulate?
- Competition Rules
- Monetary policy of the Euro area
- Common commercial policy
What do Member States exclusively regulate?
Health, education and industry.
What do Member States and the EU jointly regulate?
Internal markets, agriculture, transport and energy.
Can a member state withdraw from the EU?
Yes, under Article 50, a withdrawal agreement can be negotiated and agreed by the Council with consent of the European Parliament.
What is the principle of “subsidiarity”?
That EU decision must be taken as close to citizens as possible.
What is the principle of “proportionality”?
EU action must be the least necessary to achieve the objectives of the Treaty of Lisbon.
