Chapter 1 - The English Legal System Flashcards
(108 cards)
1
Q
Law of Equity - when was it developed?
A
Mid 13th century, because Common Law was too rigid and people were not happy. Cases were being dealt unfairly, rather than substance of the case,
Both Common Law and Law of Equity are applied in courts today.
2
Q
Who has the power to grant equitable and common remedies in the High Court?
A
Both Chancery of Division and the Queen’s Bench Division. However, pure equity matters (trusts and wills) are dealt by the Chancery of Division, while are common Law matters (contract and tort) are dealt by the Queen’s Bench Division.
3
Q
Examples of Equitable Principles:
“Equity looks to the intent rather than the form”
A
Doesn’t allow action to be defended merely on procedural formality
4
Q
Examples of Equitable Principles:
“He who comes to equity must come with clean hands
A
Litigant can’t rely on law of equity if they have been involved in fraud.
5
Q
Examples of Equitable Principles:
“Laches defeats equity”
A
Those who seek equitable remedy must not delay it.
6
Q
What are Common Law and Civil Law?
A
Common Law is the English Legal System.
Civil Law is based on the Roman system and used in Europe.
7
Q
What is the European Union Law concerned with?
A
Ensuring freedom of movement within the member states for persons, goods and services. As well as common agricultural and transport policies, ensuring competition is not restricted or distorted.
8
Q
European Union Law
Treaty of Paris 1951
A
6 countries signed it to create diplomatic and economic stability through co-operation of their coal and steel industries. Also known as the Treaty establishing the European Coal and Steel Community.
9
Q
European Union Law
Treaty of Rome 1957
A
Creation of the European Economic Community (EEC), or “common market”. Aimed greater economic integration between member states
10
Q
European Union Law
Treaty of Accession
A
Signed by every Member State agreeing to respect and promote the common values of the Member States. For the Uk it was the Treaty of Accession of Denmark, Ireland and the United Kingdom (1972)
11
Q
Maastricht Treaty 1992 (or Treaty of European Union)
A
Euro set up as single currency; greater powers to the European Parliament and the Council of the European Union. Member States can work together on public health, visa policy, transport and communications. EU citizens got enhanced rights, such as to reside and work in any Member State
12
Q
The Lisbon Treaty 2007 (or Treaty of The European Reforms)
A
Focused on citizens’ rights. Created European Council; President and High Representative of the European Union for Foreign Affairs and Security Policy. Introduced the European Citizens’ Initiative, allowing citizens to petition for reform o the production of 1 million signatures from a number of member states.
13
Q
EEC Law became part of English Law in 1972. In addition:
A
Section 2 (1) of 1972 Act: Community Law shall automatically form part of the Uk law.
Section 2 (2) Community Law that requires Member States action to be implemented may be brought into force by Order in Council or ministerial regulations.
Section 3, English Courts need to consider treaties and the decisions of the European Court of Justice
Measures on major criminal offences, must be implemented by Act of Parliament
14
Q
Supremacy of European Law over English Law in Case Marshall v Southampton & SW Hampshire Area Health Authority (1986)
A
Marshall worked past retirement age (which was 60 for women), she was dismissed at 62, so she claimed gender discrimination (men’s retirement age was 65). English Law didn’t hold it in her favour, but she appealed, and it was referred to the European Court of Justice (ECJ).
Held: ECJ determined English law had failed to implement the EC directive. This prompted a change in the Uk law: Sex Discrimination Act 1986 common age of retirement, irrespective of gender.
Miss Marsh was entitled to damages.
15
Q
European Union Law-Making Institutions (main 4)
A
- The Council of the European Union (or Council of Ministers)
- The European Commission
- The European Parliament
- The European Court of Justice
16
Q
The Council of the European Union (CEU)
A
Meets regularly and is made of 1 Minister from each Member State, chosen based on topic being discussed (i.e. transport issue, Transport Ministers)
2 and half years new President which rotates, allowing the country to put forward its own agenda.
Continuity is assured, as the previous presidency as to work closely with the new one.
CEU is supreme lawmaker of EU. It legislates in respect of proposals put forward by the European Commission, and they then implement them.
17
Q
Voting (CEU)
A
Few decision require the approval from all Member States, but unanimity is required for decisions where vital national interests are at stake, otherwise simple majority vote suffices.
Or Qualified Majority Vote (which means larger countries have more votes, to make it representative of population.
18
Q
The European Commission
A
Do the day to day management. It has a Commission President appointed by the Member States’ Heads of Government (the European Council) and 1 nominated Commissioner per Member State.
The Commission can be “sacked” in its entirety by the European Parliament.
19
Q
The European Commission’s role in the EU legislative process:
A
- Guardian of the Treaties (ensuring they are being observed by Member States and can start proceedings if they aren’t)
- Formulate EU policy
- Draft legislation to be laid before the Council of the European Union
- Limited legislative power
- Responsibility for implementing EU legislation
20
Q
European Parliament
A
Members of the European Parliament (MEPs) are elected by public vote, each country decides how.
Each Member State can have no more than 96 and no less than 6 MEP.
Elected every 5 years,
21
Q
Functions of the European Parliament
A
Represent the European Citizen.
It used to have advisory and consultative functions, but now it monitors the activities of European Institutions, and ensure the Commission operates in a democratic way.
Debate and adopt EU budget together with the CEU. They can reject the entire budget.
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Q
European Court of Justice
A
ECJ sits in Luxembourg.
Has a President of the Court of Justice, and 1 appointed judge per Member State, and 8 Advocates-General.
Judges are appointed for 6 year terms, but they may renew.
The Advocates General ensure unbiased opinion of the issues of a particular Court, bearing in mind the European Law. Judges usually support their original opinion, but will have the last say.
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Q
Judicial Power of the ECJ, jurisdiction area it covers
Preliminary Rulings
A
Article 234 of the Treaty of Rome says that any court or tribunal in a Member state can ask for preliminary ruling about interpretation of the treaties.
This is mainly requests for advice on how they will impact domestic national law
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Q
Judicial Power of the ECJ, jurisdiction area it covers
Actions against Member States
A
Proceedings may be taken against Member States either by the Commission or by another Member State, if there are violations of the European Law.
Member state will be given the opportunity to fix things before case is taken to the ECJ.
ECJ can impose financial sanctions.
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Judicial Power of the ECJ, jurisdiction area it covers
| Actions against EU Insitutions
Actions may be brought against EU Institutions by other institutions, Member States, corporate bodies or individuals.
Case: United Kingdom V Council of the European Union (1996)
Uk sought to have the Directive on the 48 hour working week annulled, on the basis that it was unlawfully adopted by the Council.
It was unsuccessful.
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Judicial Power of the ECJ, jurisdiction area it covers
| Court of First Instance
Where there are disputes between the EU and its own employees, cases are dealt by the Court of First Instance.
ECJ only becomes involved if there is a subsequent dispute upon a point of law.
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Sources of European Law
| Primary Law
The European Union Treaties are the primary law of the EU, mainly those in the Treaty of Paris and Rome, as all the others added on to these,
Some provisions are really specific and become enforceable; others are less explicit and allow own parliaments to fix within their limits.
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Sources of European Law
| Secondary Law
The Council of the European Union and the European Commission, together with the European Parliament, are empowered to make:
regulations
directives
decisions
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Secondary Law
Regulations
Case Leonesio v Italian Ministry of Agriculture
Case Consorzio del prosciutto di Parma v Asda Stores (2003)
to achieve uniformity of law in Member States.
They have direct force and need no further legislation. It must be applied, even if it conflicts with legislation of the Member State
Case: Leonesio v Italian Ministry of Agriculture
Regulation encouraged reducing production of dairy said premium would be paid to farmers who slaughtered their cows and didn't produce milk for 5 years.
Italian government needed legislation to approve it out of their expenditure and refused to pay. ECJ held Leonesio needed to be paid.
Case Consorzio del prosciutto di Parma v Asda Stores (2003):
Asda labelled ham from Parma, but it had been sliced and packaged in the Uk. Association claimed this was unlawful by Italian and European law, (protected designation of origin). ECJ declared this regulation was enforceable. However, the condition that the packaging and slicing had to take place in the region of production hadn't been brought to Asda's attention, so it was not enforceable in this case.
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Secondary Law
Directives
Case Van Duyn V Home Office (1974)
Pubblico Ministero v Ratti (1979)
to harmonise laws within Member States..
Directives must be implemented within a time frame, but states themselves can choose how to implement changes.
Case Van Duyn V Home Office (1974) and Pubblico Ministero v Ratti (1979)
the ECJ declared the wrongful lack of implementation of a Directive into national law didn't excuse any denial of rights which resulted.
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Judgements of the European Court of Justice
Are binding in all courts within all Member States
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The European Convention on Human Rights and the Human Rights Act 1998
Case: Austin V Commissioner of the Police of the Metropolis (2009)
The Uk is an original signatory to this Convention (since the early 50s). That is, it predates the EU.
The Human Rights Act 1998 introduced a new right for alleged breaches of the rights conferred by the Convention. Can only be brought against a "public authority", not a private institution or person.
Article 2 - right to life (almost all to ensure this one is not breached)
Article 5 - right to liberty (measure by police must be proportionate to the situation in question)
Case: Austin V Commissioner of the Police of the Metropolis (2009) demonstrator said police took her right to liberty. But it was held that police's actions were taken in the public interest. They acted in good faith and in for public interest
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Indirect Effect of Human Rights Act 1998
Case: Garry Flitcroft v Mirror Group Newspapers (2002)
Case: Garry Flitcroft v Mirror Group Newspapers (2002)
Extra-marital affairs of footballer published. It was held that his right to privacy was balanced against rights to free expression and public interest, and the latter outweighed first
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Case Law and Precent
"Stare decisis" decision stands
Judicial precedent, stare decisis means that courts are bound by decisions made in earlier cases.
In a case where this is not binding, it is said to be "persuasive only", which means court will consider it, but will not be bound to it.
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Court Hierarchy
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European Court of Justice (ECJ)
The Supreme Court (Uk)
Court of Appeal (Criminal and Civil Divisions)
The High Court; and the Crown Court
County Court; and Magistrates' Court
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Binding decision on a court depends on the seniority of the court.
A court is never bound by a decision by a court lower than itself.
Supreme Court and European Court of Justice are not bound by their own decisions, all others are.
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European Court of Justice
Judgements are based on European Treaties.
It's not bound by its own decisions.
Created the Treaty of Rome.
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The Supreme Court
Highest Court and ultimate appeal court in the UK.
It must regard judgements of the ECJ while it remains EU member.
Intend to treat their own decisions binding, but have the right to depart from them.
Came to being in October 2009. Prior to this court highest appeals were dealt by Judicial Committee of the House of Lords. Its decisions are valid a precedent law.
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The Court of Appeal (Civil Division)
Case: Young v Bristol Aeroplane Company (1944)
Case: R v Brent London Borough Housing Benefit Review Board (2001)
Bound by previous judgements of the Supreme Court/House of Lords; with the exception of this Case: Young v Bristol Aeroplane Company (1944)
Exceptions:
- decision made 'per incuriam' (in error)
- 2 previous conflicting decisions (the one that is not chosen will be overruled, as no longer good precedent)
- when a previous decision of the Court of Appeal was overruled by the Supreme Court/House of Lords
- when legal principle in previous case didn't exit at the time (Case: R v Brent London Borough Housing Benefit Review Board)
This court's decisions are binding on all lower civil courts
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Court of Appeal (Criminal Division)
All it decisions are binding on all lower criminal courts (Crown Courts or Magistrates' Courts).
It's also bound by its own decisions
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The High Court
Divisional Court of the High CourtCase: Huddersfield Police Authority v Watson (1947)
Operates with one judge sitting alone. But may have 2 or more sitting together in some cases, this configuration is called Divisional Court of the High Court.
One High Court Judge sitting alone is not bound by the decision of a previous High Court Judge that at on their own (Case: Huddersfield Police Authority v Watson (1947))
But a lone judge is bound by a decision made by Divisional Court (more than 1 judge).
Exceptions as the case Young v Bristol Aeroplane Company (1944)
Exceptions:
- decision made 'per incuriam' (in error)
- 2 previous conflicting decisions (the one that is not chosen will be overruled, as no longer good precedent)
- when a previous decision of the Court of Appeal was overruled by the Supreme Court/House of Lords
- when legal principle in previous case didn't exit at the time (Case: R v Brent London Borough Housing Benefit Review Board)
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The Crown Court
deals exclusively with criminal cases. It is bound by the Supreme Court/House of Lords; but not by its own decisions, as it is regarded as a non-precedent making court.
Otherwise jurors' would have no choice on their verdict.
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The Courts of inferior jurisdiction (County Courts and Magistrates' Courts)
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County Courts (civil)
Magistrates' Courts (criminal)
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Bound by the decisions of the courts above them, but not by their own decisions.
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Overruling a case
Current case in higher court is reviewing the precedent set by a previous judgement in a lower court. It may conclude it was wrongly decided
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Reversing a case
If a higher court reaches a different decision from original court, the previous decision is said to be 'reversed'.
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Ratio Decidendi
Obiter Dicta
Legal principle in which a judgement in a case is made known as legally binding.
This requires judges to read previous judgements to stablish the principle of reasoning that 'ratio decidendi' requires.
That is, previous similar cases are analysed and the measures that were taken to ascertain if they apply to case in hand.
If while analysing a case, judge establishes there are different facts, they may come to a different decision.
Obiter Dicta (passing comments) the judge may make in the course of the judgement (not binding)
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Legislation and statutory interpretation:
- supreme legislation
- 'delegated', 'subordinate', 'secondary' legislation
Supreme Legislation - Acts of Parliament
'delegated', 'subordinate', 'secondary' legislation - enacted by others under powers delegated by Parliament.
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Supreme Legislation
Acts of Parliament which cannot be questioned, as Parliament is the sole ultimate law-making body.
Exception is that courts may challenge validity of Uk legislation if in conflict with EU or Human Rights law.
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Delegated or subordinate legislation
'ultra vires'
Third Party uses authority given to them by Parliament to make new law. This authority will be given with Act of Parliament)
This happens when Parliament doesn't have expertise to legislate in highly technical areas (Town and Country Planning, environment).
Unlike Supreme Law, Subordinate Legislation is upon to challenge in the courts in the grounds that it's void, due to being 'ultra vires' (beyond the powers of the body making it). In cases where Parliament gave excessive authority.
Her Majesty's Stationery Office publish ministerial orders and regulations
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The Process of Legislation
In order to become a Law, a Bill, this is the Parliament process:
1. Be agreed by the House of Commons
2. Be agreed by the House of Lords
3. Gain Royal Assent
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Process of Legislation
| 1. The First Reading
Sheet of paper with the title of the proposed Act and the name of the MP or Member of the Lords introducing it. It is read out loud.
No debate, just introducing the item and diarise a future date in that House for further discussion,
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Process of Legislation
| 2. The Second Reading
Full debate on the need of the new law and how the content of that Bill addresses that need.
If not opposed, or voted by majority, it will pass to Committee Stage.
If against, the Bill will be discarded, and a new one may be re-attempted.
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Process of Legislation
| 3. The Committee Stage
The 'committee' is a small group representing that House.
Important matters may have larger group or even the whole House.
Bill's contents will be examined in detail.
Clauses may be amended or excluded.
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Process of Legislation
| 4. The Report Stage
Committee reports back to the House with amendments.
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Process of Legislation
| 5. The Third Reading
House conducts final and full debate on the Bill and its amendments.
If majority votes for Bill, it is passed to the other House for the process to be repeated.
The other House may send further amendments.
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Process of Legislation
| Royal Assent
After Bill is approved by both Houses. It gets the monarch's approval and becomes law.
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Statutory Interpretation
When and Act is passed in Parliament it is then to be interpreted and applied by courts.
Court is not allowed to contact the Parliamentary draftsperson, MPs or government ministers for interpretation. though there are legal dictionaries and textbooks to be consulted.
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Rules of Interpretation
| Literal Rule
When statute is clear and unambiguous, words must be given literal meaning. It may lead to an absurd interpretation.
Lord Esher stated 'Court has nothing to do with whether or not the legislature has committed an absurdity.'
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Rules of Interpretation
Golden Rule
Case: Adler v George (1964)
Case: Inco Europe Ltd v First Choice Distribution (2000)
Allows court to moderate the wording, but only if there is ambiguity in the Act's wording
Case: Adler v George (1964)
people obstructing HM Forces in a prohibited place also committed offence in their obstructed HM Forces
Case: Inco Europe Ltd v First Choice Distribution (2000)
Where House of Lords stated words could be added to a statute by judge, in order to give effect to Parliament's intention, if there has been an error in drafting a rule.
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Rules of Interpretation
Mischief Rule
Case: Smith v Hughes
Case: Elliott v Grey (1960)
Intention of Parliament can best be assessed, but looking at the mischief it intends to eliminate
Case: Smith v Hughes
Street Offences Act 1959 made it an offence for a prostitute to solicit in a street or public place.
Judge stated/added that the purpose was for all people to be able to walk without being solicited, regardless if it was on a street, balcony or doorway.
Case: Elliott v Grey (1960)
road Traffic Act 1930 stated it was an offence for an uninsured car to be used on the road. This particular car had no battery, and was jacked up, but the key phrase was that it was 'on the road'.
This rule is therefore used to correct or add meaning to an ambiguous word or phrase.
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Maxims of Interpretation
Ejusdem generis (Things of the same kind)
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Case: Powell v Kempton Park Racecourse (1899)
If an Act of Parliament categorized a list of items, the conclusion added to them, the conclusion clause is taken to refer to things of the same kind.
Case: Powell v Kempton Park Racecourse (1899)
Betting Act 1853 prohibited keeping a house, office, room or other place for the purposes of betting. This applied to the Tattersalls's Ring at a racecourse.
though all places listed were indoors, 'or other place' should be extended to this.
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Maxims of Interpretation
Noscitur a sociis (a thing known by its comparisons)
Case: Pengelly v Bell and Punch (1964)
If rule is doubtful to interpret, then its context must interpreted.
Case: Pengelly v Bell and Punch (1964)
Factories Act 1961 said 'floors, steps, chairs, passages and gangways' should be kept free from obstruction.
It was held this was not applicable to storage area in factory
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Maxims of Interpretation
Expressio unius est exclusio alterius (express mention of one thing excludes others)
Case: R v Sedgely Inhabitants (1831)
Case: R v Sedgely Inhabitants (1831)
Statute raised taxes for land, houses and coal mines.
Court held that tax raised on limestone mine was not permitted, as it was not listed in the category.
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General Presumptions
- Legislation does not apply retrospectively to situations that occurred before the legislation was enacted;
- the Crown is not bound to Acts of Parliament;
- Act will only apply to the Uk
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Statutory rules relating to interpretation
Parliament gives assistance in the following:
Interpretation clauses - most Acts have an interpretation clause, which define words and expressions in it. These are Intrinsic Aids to interpretation.
The Interpretation Act 1978 - defines many words and expressions in common statutory use. These Extrinsic Aids to interpretation.
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Forms of Liability
| Criminal Liability
Criminal law is administered in Criminal Courts and concerned with the protection of the community or the state, including protecting the person against the person, and property from crimes against property.
Penalties are to punish the offender and preventing them from committing future crime.
Proof beyond reasonable doubt, as the burden of proof is very strict.
Criminal liability requires 2 elements to be present: wrongful act (actus reus), conduct of forbidden act; guilty mind (mens rea) act has guilty intention.
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Forms of Liability
| Civil Liability
Civil law is administered by Civil Courts and concerned with regulating conduct of people towards each other.
Proof of the reasonable balance of probabilities is acceptable, so les strict than in criminal law.
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Forms of Liability
Civil Liability
Tort and Contract
Tort is French for wrong, and it's a breach of civil duty arising from a contract
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Examples of tort:
damage to reputation
defamation
trespass - damage to property
negligence - financial loss or personal injury
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Magistrates' Courts
They are predominantly criminal courts, but have a civil jurisdiction in domestic matters (maintenance, separation; where appeal can be made to the Family Division of the High Court)
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County Courts
The most important ones of the inferior civil courts.
They are local courts and they are courts of 'first instance' - a court where cases can start.
District Judge in County Court is a full time judge and deals with the daily matters of the court. they will handle with all Small Claims Track cases and a significant part of the Fast Track ones.
Multi-track cases may become province of the Circuit Judge (of the County Court).
Solicitors and barristers are only used in high value claims
'Right of audience' is the right to appear
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Matters dealt with County Courts
Claims in contract and tort
Equity matters (trusts, mortgages, partnerships)
Land disputes
Undefended matrimonial cases
Regulated consumer credit and hire agreements
Some bankruptcies (majority handled by the Insolvency Service)
Cases under £100,000 will commence in County Court, above will be in High Court
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The 'small claims court'
This is a discreet part of the County Court. for cases that were allocated to the Small Claims Track.
This is to encourage a more informal approach to minor problems by offering informal procedures.
If the claim doesn't exceed £10,000.
District Judge becomes arbitrator, who hears and decides. there is little room to appeal, as parties will have agreed to abide by these rules.
Parties represent themselves and it's an informal meeting, rather than a court hearing.
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Appeals from County Courts
Appeals can be on errors or facts.
According to the Access to Justice Act 1999 only one appeal is permitted, unless there is an important point of legal principle at stake.
A second appeal would have to be permitted by the Civil Division of the Court of Appeal.
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Route for appealing from the County Court
District Judge as Arbitrator - judgement is binding, unless there was error in law
District Judge in County Court - appeal can be made to Circuit Judge in the County Court
Circuit Judge in the County Court - appeal can be made to High Court Judge
High Court Judge - appeal can be made to Court of Appeal (Civil Division)
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Appealing from the County Court
Civil Law rarely will rehear evidence or witnesses. They will go through written notes and evidence
There will rarely be a full hearing.
For the appeal to be successful, the judgment must be wrong in law.
Appeal may order original judgement to be upheld, varied or reversed.
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Cost
Losing party will have to pay their own costs, as well as successful party's costs.
Court may decide that successful party's costs are not to be paid, if decided they didn't take enough action to resolve matter by other means.
Litigants who bring their case to High Court, instead of County Court, successful party may not be awarded with costs, instead they may even be given High Court costs.
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Superior Civil Courts
| The High Court of Justice
High Court of Justice in England and Wales is based in London and has District Registries in the country.
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Roles in the High Court of Justice
- Full time High Court Judges acting as 'Justices of Her Majesty's High Court of Justice', they have complete powers to hear cases and give remedies to the full extent of the law.
- It handles judicial reviews, which are applications to review and examine actions of a public body or similar for legality
- supervisory capacity
- Queen's Bench Divisional Court (2 or more Judges sitting together) hears appeals of points of law only from the Magistrates' and Crown Courts. 'Case stated' appeal. Examining if original trial was correctly reconciled with the facts of the offence.
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Divisions of the High Court
| The Chancery Division
Headed by the Chancellor of the High Court and deals with equity matters (trusts, wills and bankruptcies)
There is a Court of Protection that deals with property management of mental health patients
Also has a Companies Court, a Patents Court, and an Appeal Court hearing income tax matters from the Inland Revenue.
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Divisions of the High Court
| The Family Division
headed by the President of the Family Division, and deals with matrimonial matters, actions involving children (adoption and legitimacy).
Appeal Court will deal with the family matters.
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Divisions of the High Court
| The Queen's Bench Division
headed by the President of the Queen's Bench Division and deals with common law matters (tort and contracts)
Has an Admiralty Court (shipping matters)
A Commercial Court (insurance claims)
Technology and Construction Court (technical issues, construction and engineering disputes)
It has a supervisory role over the other courts; issues habeas corpus for people unlawfully detained.
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The High Court of Justice claims
Money claims in excess of £100,000 will proceed to High Court.
Debt above £25,000 can also be started in High Court instead.
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Prerogative Orders
Complaint of a breach of natural justice (court or public authority acting illegally), they can apply to the Queen's Bench Division of the High Court for judicial review.
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Prerogative Orders:
| Mandatory Orders, Prohibiting Orders, Quashing Orders
Mandatory Orders: orders carrying out of existing public duty (eg. highway authority ordered to fix a hole on the motorway that they tried to ignore).
Prohibiting orders: prevents jurisdiction abuse (eg. may ask a Parish to fix the hole mentioned above, if Highway authority have not done so).
Quashing orders: removes decision of an inferior court, tribunal or public body, if they have acted illegally or beyond their jurisdiction.
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The Court of Appeal (Civil Division)
Based in London and headed by the Master of the Rolls and staffed with Lord Justices of Appeal.
Hear appeals from the High Court and County Court.
Court will decide if they want to re-hear the evidence.
Appeals can only reach this court, if it accepts it, And only Supreme Court can hear appeals against it.
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The Supreme Court of the United Kingdom
Was introduced in 2009 and is the highest court of appeal in the English law.
Headed by President, and staffed with 12 Justice of the Supreme Court.
It's not part of Parliament and is also not divided like the Court of Appeal.
It reserves to itself cases of significant general importance, or of importance to the greatest public or constitutional importance.
Very strong grounds are needed for hearing appeals from Court of Appeal or High Court.
5 Justices constitute a 'normal' Supreme Court Bench.
No further appeal after the Supreme Court, unless EU Principle is involved and proceedings are issued in the European Court of Justice.
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Alternative Dispute Resolution
Lord Woolf and Lord Jackson's reforms (1996 and 2010 respectively) gave strong stress that court use should be of last resort and provided ADR (Alternative Dispute Resolutions) using a PAP (Pre-action Protocol) from 2017.
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ADR Methods
Informal Negotiations: between parties themselves
Mediation: neutral intermediary encourages parties to reach an agreement. It can be evaluative, where mediator gives an assessment of the legal strength; or facilitative where mediator assists parties in defining issues and reaching agreement. When mediation agreement is reached, it's written down and becomes legally binding.
Conciliation: similar to mediation, but conciliator is more pro-active and may put forward conditions and possible settlements.
Arbitration: parties present their arguments and previously agree they will be bound by arbitrator's decision. Therefore appeal is limited.
Arbitrators are legally qualified and have expertise in the subject matter of the case. Meeting takes place in private.
Commercial parties may be instructed to appoint an arbitrator (contracts may have arbitration clause)
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Arbitration Advantages
Secrecy, expertise, speed, informal, cost efficient
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ADR Advantages
Speed and cost
Maintaining relationship (allows business to maintain a relationship)
Court encourages ADR
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ADR, Pre-action protocols
Codes of practice which parties must comply with. Require exchange of information and a time for response
If one of the parties refuses to cooperate, court may award them with the costs.
Staying proceedings: putting on hold, to allow ADR to be considered
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Case Management (tracks)
Small Claims: claims not exceeding £10,000, normally heard by a District Judge.
Fast Track: between £10,000 and £25,000, 30 weeks ti be sorted after being allocated to this track. Fixed costs and 1 day trial.
Multi-track: claims over £25,000, this is for most commercial claims and involves a case-management conference between judge and parties to encourage settlement of dispute or seek ADR.
If it goes to trial, parties are expected to agree to proposals of agreement.
There may be a pre-trial review
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Executing the Judgement
There may be enforcement steps necessary:
Warrant of control - entitles claimant to seize goods o the value of the debt and costs from defendant's premises. Use of bailiffs or High Court Enforcement Officers, which are paid by claimant.
Charging Order - charge on property
Attachments of Earnings
Third Party Debt Order - claimant can gain control of funds belonging to defendant, but held by third party (bank)
Formal Insolvency - bankruptcy (for individuals whose debt is over £5000) liquidation/winding-up (for companies with debt over £750)
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Settlement out of court
The Civil Procedure Rules gives powers to judges to reach early settlement, without the need of a trial
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Payment into Court and Offers to settle
After proceeding commence, defendant may offer to make a payment into the court, which will represent the amount the defendant is prepared to pay towards the claim, and is not an admission of guilt.
Claimant doesn't need to accept this offer, but will then be liable for defendant's costs, even if they succeed.
The Civil Procedure Rules also give rights to claimant who offers to pay a certain amount. If defendant refuses, claimant wins case with an award equal to the amount they offered
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Tribunals operated by HM Courts and Tribunal Service
These Tribunals (formerly knows as Administrative Tribunals) are specialised bodies, but not part of the court system. But are judicial bodies who decide upon disputes, and help court system with the burden of workload.
Employment Tribunal, where parties are employer and employee.
In 2000 Tribunals were in need of reform: Tribunals, Courts and Enforcement Act 2007, under the control of the Senior President of Tribunals and a Procedure Committee.
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Tribunals
| Lower Chambers, First Tier Chambers
Each has it own president.
Appeals from First Tier are directed to Second Tier, Upper Tribunals.
Lower Chambers (First Tier):
- General Regulatory Chambers (Consumer Credit Tribunal, Transport Tribunal, Health and Education and Social, Care Chamber
- Social Entitlement Chamber (Social Security and Child, Support Tribunal, War Pensions and Armed Forces, Compensation Chamber)
- Immigration and Asylum Chamber; Property Chamber and Tax Chamber (Tax Tribunal, MP Expenses Tribunal)
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Tribunals
| Upper Chambers, Second Tier
Administrative Appeals Chamber: receive appeals from the General Regulatory Chambers and Social Entitlement Chamber.
Immigrants and Asylum; Lands and Tax and Chancery: receive appeals from the Immigration and Asylum Chamber; Property Chamber and Tax Chamber
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Advantages of the Tribunal System
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Speed
low cost
informal
flexible
specialised
relief of congestion in the ordinary court system
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Tribunals of the professions (not operated by HM Courts and Tribunals Service)
Deal with registration, alleged professional misconduct, and other matters concerning its members or licensees.
Solicitors Disciplinary Tribunal (for solicitors)
The General Medical Council (for doctors)
Appeals from these Tribunals are made to the Administrative Court, part of the Queen's Bench Divisional Court of the High Court.
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People in the English Civil Law System
| Judiciary
Judges are appointed by the independent Judicial Appointments Commission, to eradicate the previous biased 'personal recommendation' system.
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People in the English Civil Law System
| District Judges
Have civil jurisdiction and sit in local County Courts. Have civil law specialisation and deal with Chancery or Tribunal matters.
They work for the area's District Registry (local arm of the High Court).
They are solicitors, barristers and Fellows of the Chartered Institute of Legal Executives.
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People in the English Civil Law System
| Circuit Judges
County courts of their designated area and move around their 'circuit'.
Deal with demanding specialised legally complex matters, and appeals against the District Judges' judgements.
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People in the English Civil Law System
| High Court Judges (Justices of Her Majesty's High Court of Justice)
Sit in one of the 3 divisions of the High Court of Justice in London and may sit in the Employment Appeals Tribunal.
Deal with most high value and legally complicated trials of the first instance.
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People in the English Civil Law System
The Lord (or Lady) Justices of Appeal
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sit in civil law appeals from the courts of appeals tribunals heard in the Court of Appeal (Civil Division) in the Royal Courts of Justice in London,
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People in the English Civil Law System
| The 12 Justices of the Supreme Court
preside in panels of 5 and deal with the most serious matters of the civil law in Middlesex Guildhall, opposite of the Palace of Westminster (Houses of Parliament) in London.
First appointment 2009, and since then have been the final legal arbiters of civil law in the English civil law structure and are the most senior judges in the system.
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People in the English Civil Law System
| The 28 Justices of the European Court of Justice
Are appointed to serve, one per Member State, for 6 year periods that can be renewable. They are experienced national judges.
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The Legal Profession
Solicitors and Barristers
Case: Arthur Hall v Simons (2000)
Solicitors: general legal services.
Since the Courts and Legal Services Act 1990 they have wider rights of advocacy (right of audience) before the Higher Courts, and are an alternative to appointing a Barrister.
Barrister: specialist legal advocate with rights of audience in senior courts. They have expert opinion on complicated matters
Accomplished Barristers can be invited to become 'Queen's Council', procedure is called 'talking silk'.
Unlike Solicitors, they are not allowed to form partnerships.
Bar Council deals with disciplinary matters relating to breaches of professional rules by barristers.
Case: Arthur Hall v Simons (2000)
where it was decided that solicitors and barristers shouldn't be immune of negligence, as they were before this.
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Legal Executives
They are neither barristers or solicitors, but are embedded in solicitors' practices and operate in a specialist field. They may also work for a commercial employer.
