English Law System Flashcards

Question

Judicial Principles of SIs: What is the Literal Rule? And what is its weakeness?

Answer 1

Words of the statute are given their ordinary and natural meaning. E.g. R v Hillingdon LBC ex parte Puhlofer (1986) Its weakeness is the assumption that there is a single, uncontentious, literal understanding of words.

Answer 2

Rules developed to assist courts in interpreting statutes. The court will apply the meaning that allows the statute to fulfil its purpose in light of the "mischief/evil" actions. E.g. Smith v. Hughes (1960) & Wolman v Islington LBC (2007) (parked bike with wheel on pavement).

Answer 3

Rules developed to assist courts in interpreting statutes. This is where two interpretations are possible, court will apply meaning which produces least absurd result to prevent inconsistency when interpreting the Act literally. E.g. R v. Allen (1872) & Re Sigsworth case (1935) (common law prevented murderer benefitting from the property of the victim murdered.)

Answer 4

Based on the Doctrine of Binding precedent: Court hierarchy Whether facts come within the scope of the previous case Whether what the judge said was in the ratio decidendi (rationale for the decision) or merely obiter dicta (that which is said in passing).

Answer 5

Before a united system of government had formed, the judiciary had the common law. Judges prepared judgement that outlined previous case law authorities, referencing these as they explain how they came to their decision. Ratio decidendi comes from this.

Answer 6

"Rationale for the decision". The essential elements of a judgement which create binding precedent, and must be followed by inferior courts. Ratio = reasons. It is the reasons for the decisions.

Answer 7

"By the way". A remark/opinion. Not officially part of the ruling.

Answer 8

Flexibility (ability to distinguish cases) Only very able people can become judges (high quality) Consistency & certainty

Answer 9

Supreme Court The Court of Appeal Divisional Court High Court Inferior Courts

Answer 10

Smith v Jones

Answer 11

Designed to streamline civil justice process, solving as many cases as possible without going to court proceedings whilst ensuring just judgement. Civil procedure encourages parties to use an alternative dispute resolution.

Answer 12

Tribunals. Alternative Dispute Resolution (ADR).

Answer 13

Intermediary considered both party’s arguments, then comes to a decision that resolves the dispute. The process is final and legally binding, but the decision can be appealed. Used internationally between corporations.

Answer 14

Ways parties can settle disputes with help from independent 3rd party without the need for a formal court hearing. Arbitration, Adjudicaiton, Concilliation, Mediation.

Answer 15

Parties don't have to agree to use arbitration prior to contract. Arbitrators with appropriate degree of expertise can be appointed (cannot “choose the judge”). Faster than court. Cheaper and more flexible, not always. Private and confidential. Awards easier to enforce in other nations (because of New York Convention 1958 provisions). Limited avenues for appeal of arbitral award.

Answer 16

Mandatory arbritration means parties waive their rights to access the courts. Party may not realise they signed arbritration agreements in an ancillary agreement. Pay for arbitrators, recovery of legal costs not always available. If the arbitrator depends on the bigger party for repeat business, there may be an inherent incentive to rule against the consumer or employee. Limited avenues for appeal. Disclosure of documents may be more limited in arbitration. Unlike court judgments, arbitration awards themselves are not directly enforceable. Arbitration awards can be fought, but in legal costs negate the perceived economic incentive to arbitrate the dispute in the first place.

Answer 17

It is an interpretation aid for statutes used by judges. Used in the Pepper v Hart case, looking at Hansard's reports of parliamentary debates as an aid to contrue the meaning of legislation.

Answer 18

The doctrine of precedent.

Answer 19

Highlights differences in material facts between present and past cases. Avoid applying ratio decidendi of a preivous case, choosing an authority which more closely reflects the present case. Doesn't change decision or rule of law in the previous case.

Answer 20

(i) there are two or more conflicting Court of Appeal authorities and the present court must choose between them. (ii) where a previous Court of Appeal decision conflicts with a House of Lords or Supreme Court decision. (iii) where the previous decision was made per incuriam (through lack of care).

Answer 21

It is generally bound to its previous decisions for consistency. It can depart from this where it appears right to do so.

Answer 22

Considers both sides claims, then comes to a decision. More informal than arbitration. Often used by trade associations to deal with consumer complaints (Tenancy Deposit Scheme).

Answer 23

Mediator tries to help parties come to an agreement. Parties decide if they come to a resolution and what the outcome should be. Most wide ranging. Not a binding legal process. Most commonly in family affairs. Mediator only gives opinion if asked.

Answer 24

Tries to help resolve the dispute privately and confidentially. Parties can either agree or disagree. ACAS in employment disputes. Similar to mediation, but conciliator takes more active role and can suggest ground for comprimise or a settlement.

Answer 25

Speed of which cases are head and resolved. Important for business’. Expertise in nature of claims. Increased informality. Reduces courts workload.

Answer 26

Immigration, employment, data protection...

Answer 27

Increase use of law and formal procedures so they are more akin to specialist courts. Limitation in the availability of free legal assisstance. Becoming too complex, creating their own body comparable to court. No system of precedent in tribunals. However, precedent established in higher courts is applicable to tribunals.

English Law System Flashcards

(51 cards)