Chapter 1: Law and legal systems Flashcards
(75 cards)
1
Q
law definition
A
general rules which govern anc control the behaviour of people in a country or state
- backed by consquences
- aim to be moral, protect the economy, ect.
2
Q
english law juristictionc
A
3
Q
common law juristiction
A
old common wealt, us canada, aistralia, new zealand, some in africa and far east
4
Q
alternative to common law
A
civil law
5
Q
public law
A
concerns relationship between the state and individuals
- constitutional law = structure of the main governmental institutions and how they work together
- administrative law = legal relationship between public and agencies of government
- criminal law = state brings the case (crown prosecttion service)| from statue or common law (court decisions)
6
Q
private law
A
- affect individuals
- aka civil law
- law of contracts
- law of torts
7
Q
categeories of criminal effect
A
- summary offences = minor crime (magistrates)
- eitherway offences = magistrates or crown court depending on the severity
- indictable only offences = serious offences (crown court)
8
Q
which court has a jury
A
crown court
9
Q
which court has district judge or 3 justices of peace
A
magistrates
10
Q
characterisitce of english law
A
-age
-little codification/no written constitution
-judge made law
-independence of judiciary (appointed by judicial appointments commission)
-adversarial system (oposed to inquisitorial systems)
- rule of law(actions of officials must be rooted in law, law should be predictable, equal treatment, fair impartial hearing, right to access couts)
11
Q
equity
A
- applied along with common law in the senior courts of england and wales
- designed to bypass so sort comings of common law (bribes)
- equity prevails over common law
12
Q
what came from equity
A
- law of trusts
- specific performance
- injunction = court order
- subrogation
- contribution
- promiserry estopel
13
Q
law changes to reflect
A
social changes = behaviour
technological changes = new inventions
14
Q
major sources of new law
A
legislation (created by parliment)
case law = judicail precedent
15
Q
minor sources of law
A
local custom
legal books and treaties
16
Q
the protocal
A
aim to prevent a hard border in ireland and protect the good friday agreement
17
Q
parts of the parliment
A
house of commons (has most law making power)
house of lords
the monarch
sometimes they deligate
18
Q
acts of parliment can
A
- create new law
- overrule existing law
- modify existing statute law
- modify/extend existing principles in common law or equity
19
Q
steps in law making
A
green paper = initial proposal
white paper = revisions considering feeback from green paper
bill = formal drawing up of the bill
20
Q
private/public bills
A
public act affects the whole community
private act affect a particular group, individual or organisation
21
Q
steps to enact a public bill
A
first reading (lets everyone know of its existence)
second reading (merits debated and decision made to proceed or not)
committee stage ( detials are discussed by the standing committee - proposed amendments are made and voted on)
report stage (appendments are reported to the house and debated)
third reading (final opportunity for debate and minor ammendments)
- can happen in house of commons or the house of lords, it then goes to the other house who has no power to reject it, only delay
- public bills must go through the whole process in one parlimentary session, private doesnt
22
Q
consolidation act
A
brings existing law under one umbrella, creating nothing new
23
Q
codifying act
A
existing statute and case law is reduces to a single code
24
Q
the law commission
A
- concerned with the reform and modernization of law
- consolidation and revision of statute law
25
retroactive legislation
effects acts before its inception
26
delegated legislation
statutory instruments = gives ministers and civil servants power to enact delegated legislation
orders in council = gives power of special importance (must be approved by the privy council)
byelaws = local in application, require approval of the appropriate minister
27
interpretation act
- singular words include the plural and vice versa
- feminine includes the masculine and vice versa
- person includes artificial entities such as companies
can be overwritten by the provisions in the particular act
28
noccitur a sociis rule
words should be determined by their context
29
ejusdem generis rule
the meaning of a gernal term is determined by the specific term preceding it
30
golden rule
if an interpretation would lead to an absurd result, the court is allowed to assume this was not intended and choose the alternative meaning
31
mischief rule
aka the rule in heydons case
- allows court to consider the words in the act in light of the wrong it was intended to correct
32
civil court heirachy
county courts (circuit judge)
high court (involving a lot of money | Queens bench division inclused commercial court, admirality court and technology and construction court | divions hear appeals from county court, mgistrates and tribunals | 1 high court judge, 2/3 division judges)
court of appeal (takes appeals from county court or high court division | up to 7 judges)
supreme court (final place of appeal | 12 justices usually 5 sit in on a case)
33
jury in civil case
- not generally used unless its a libel proceeding
34
stare decisis
let the decision stand = precedent
35
ratio decidendi
the reason for deciding = courts arent bound to follow the previous ruling but the principles established
36
obiter dicta
things said by the way = things said by judges that arent essential to the case
37
binding precedent civil courts
bound by decisions of court higher and sometimes equal
- supreme court isnt bound by its own decisions
- high court decisions are not binding to other high court judges
38
binding precedent criminaal court
- crown court decisions arent binding on any other court
- magistate court cases are not officially reported and are nonbinding
39
judicial committee of the privy court
- has same standing as the supreme court as they share justices
- highteest appeal for many common wealth coutries, channel islands and isle of man
- for ecclesiastical and prize cases (captured ships in times of war)
- tribunals of medical, dentists and opticians
40
overuling vs reversal
overruling is deciding the case on a different set of criteria, causes rewritting or precedent, not possible to be reopened
reversals can be appealed
41
disapproving
court decides a previous ruling was wrong but cant overule
42
distinguishing
court delcines to follow precedent because this case has important difference
43
persuasive precedent
- decisions made by lower courts
- decisions made outside of the english system
- obiter dicta
- roman law
44
advantages of precedent
- provides certainty
- inbuilt development and growth
- scope can be restircted where it may not directly apply
- a lot of rulings
45
disadvantages of precedent
- hard to change binding of even wrong decisions
- bulky and difficult to navigate
- slow development
- hard to identify the principle of law
46
treaty of rome
established european economic community = free trade area
47
treaty of the european union
created eu
3 pillars
- european community
- common foreiggn security policy
- police and judicail cooperration on criminal matters
48
eu leagal institutions
council = legislative power
commison = can propose legislation
european parliament = supervisoiry power
couty of justice = court of appeals, deliberation in french and in secret, chambers of 3-5 judges or plenary of upto 17, 6 yr terms
49
sources of eu law
- the treaties
- regulations (implemented by council or commission automatically binding to all member states)
- directives (given by the council or commission binding to the relevant states - usually all - but method of implementation is at their discretion)
- decisions (only binding to those whom they are addressed)
- recommendations and opinions
50
% of cases started in civil court which go to trial
5
51
civil procedure rules: preaction protocols
- preaction protocols = share information early to identify real issues early | issued through Minisrty of Justice for claims for £1k - £25k | claimant can recover some leagal fees | failure to adhere - that party will have to bear the cost of the preceedings
-
52
civil procedure rules: which court
for high court must be more than £100,000 unless they include personal injury, then its £50,000
defamation in the high court
53
civil procedure rules: making claim
made through PArticular claims
either except and pay or submit an acknowledgment/defence to the court in 14 days (14 more to defend if acknowledgement sent)
54
civil procedure rules: allocation of cases
appropriate track it determened by the district judge
- small claims <= 10k
- fast track - <25k
- multitrack >25k or longer than a day or more than 1 oral expert per party
55
alternative dispute resolution
settle outside of court
requested through allocation questionaire (for track)
initially 1 month is granted
56
standard directions
timetable instructing each party to file copies of all documents atleast 14 days before the final hearing
57
small claims track
- district judge encouraged to play an active role asking questions
- discouraged against lawyers but generally used
58
small claims track limit
- 5k for personal injury from road traffic accident for accidents on or after 31 may 2021 , 1k for before
- the limit for all parts of the claim remains 10 k
- whiplash injuries is a fast track case
59
fast track cases
- judge encourages individuals to agree directions (submission timetable) but the judge sets where none is agreed
- aim to have the case heard in 30 weeks and trial concluded in one day
- usually one expert is allowed
60
multi-track cases
- > 25k and < 50 k (then supreme court)
- heard by circuit or high court judge who manages the case
61
part 36 offer/payment
- for settlement, the claimant can propose an amount
- if rejected and the claimant is awarded something worse they often have to pay additional costs
- discourages unnessary hearing
-
62
litigation funding
-damages based agreements
-conditional fee agreements/after the event insurance
-costs management
- qualified one-way costs shifting for personal injury
- third party funding
63
solicitors
-usually first contact
-gathers evidience
appears in lower courts
-instruct barristers to appear on behalf of client
-represented by the law society
-regulated by solicitors regulation authority
64
praticiing lawyer groups
solicitors
barristers
65
barristers
-hired by solicitors to represent cases in court
- little contact with clients
- usually specialists
- governing body the genal council of the bar (the bar council)
- regulated by the bar standard board
66
legal personality
lawful characteristics and qualities of an entity
- legal rights/duties
- capacity to enter contract
- ect.
67
natural persons
human being
begins at birth, ends at death
68
minor
= under 18, under torts fully responsible, cant own a house, <10 considered incapable of committing a crime, sue through a next friend in civil litigation and defend through litigation friend
69
person lacking mental capacity
mens rea = guilty mind
- was the person generally able to understand the general nature of what they were doing at the time?
70
bankruptcy
legal status where an individual cannot repay debts when they are due
can be voluntary or creditors petition (when >5k owed)
71
bankrupts in england
-assets taken by trustee to pay debts
-limited use/opening of bank accounts
-limited business opening/management
-credit rating
-lasts for a yeat
-
72
corparations
nonhuman
artificial legal persons
juristic persons
combination of people that want to join resources for a common purpose
businesses, social or other activities
73
types of corporations
corporation sole = a specific position held by a series of different people (monarch for exmaple)
corporation aggregate = many members can be chartered (made by the crown), statutory (made by parliment), registered (company)
74
types of companies
private limited companies
- shares arent available to the public
public limit company
- shares exist on stock exchange
- stricter regulation than ltd
limited liability partnership
- llp, combines partnership and limited liability companies
- generally used by solicitors and accountants
community interest companies
- for community benefit
- rehgulated to avoid profiteering
guarentee companies
- used by charities, clubs and associations
- members guarentee an amount to contribute to company debt if it gets wound up
unlimted companies
- fewer obligation and disclosure requirements
- used for low risk ventures
75
unincorporated associations
- defined by mutual rights and duties of mermbers
- less permenant
- no legal personality
- personal liability
- every member has a contractual relationship with the other members
clubs societies
charitable organisations
campaing groups
labour party
trade unions
