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1
Q

Meaning of common law

A
  • Distinguishes case law from statute
  • Distinguishes King’s Court law from rules of equity (Chancery)
  • Supplanted customary law
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2
Q

Role of Judges

A

Consider the evidence and applicable law -> give a judgment
Apply the law to the facts of the case
Make an order for a remedy to the successful party

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3
Q

Stare decisis: Binding precedent

A
  • earlier case (with the same material facts) was decided in a court that binds it
  • relevant part of the case is binding (not just persuasive)
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4
Q

Structure of judgment

A
  1. Summary of facts
  2. Statements of law-
    Binding: Ratio decidendi: reason for decision (legal principle applied to the material facts, can be narrow (confining rule to OG facts) or wide)
    Sometimes so persuasive it influences future decisions: Obiter dicta: dissenting judgments/statements of law imagined by judge (if not for precedent)
  3. Remedy (only binding on parties in that case(
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5
Q

Avoiding binding precedent

A

Distinguish the earlier case- find a difference in the material facts

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6
Q

Reversing a judgment

A

Case goes to appeal -> higher appeal court disagrees with lower court (doesn’t negate precedent, diff interpretation)

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7
Q

Overruling/overturning a judgment

A

Superior court decides original precedent is wrong (bad law) and sets a new one

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8
Q

Supreme Court: Precedent

A

Binds all inferior courts but
Practice Statement (Judicial Precedent) 1966: Supreme Court allows it to depart from own precedent (allow development of law)

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9
Q

Court of Appeal departing from precedent

A

Binds all inferior courts and itself unless Young v Bristol Aeroplane exceptions:
1. CA had previously conflicting decisions (pick which one to follow)
2. CA’s previous decision overrules expressly/impliedly by Supreme Court or House of Lords -> no need to follow
3. CA’s previous decision made per incuriam (erroneously)

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10
Q

High Court: Precedent

A

Binds all inferior courts. Doesn’t bind itself (only doesn’t where convinced it was wrong decision.

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10
Q

Upper Tribunal: precedent

A

Binds First Tier Tribunal, inferior courts, itself.

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11
Q

First Tier Tribunal: precedent

A

Doesn’t bind other courts but may be persuasive (considered + followed).

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12
Q

Family / County/ Crown/ Magistrates’ Courts : Precedent

A

Do not bind other courts.

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13
Q

Higher court follows a lower court’s decision (similar facts)

A

Higher court’s decision approves the lower decision.
Applying- where some similarities

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14
Q

Where equity and common law conflict, equity should prevail (Earl of Oxford)

A

Judicature Acts 1873-75 abolished division between 3 common law courts and Chancery and created a single High Court and Court of Appeal applying both
Equity supplements- follows the law

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15
Q

Equitable remedies are discretionary (only where damages inadequate)

A

Specific performance
Injunction (now statutory)
Declaration (of law)
Rescission (also common law)(set aside contract)
Rectification (of contract)

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16
Q

Primary Legislation: Acts of Parliament

A

Put before Parliament as Bills (draft legislation), debated, passed (almost always) by both HoC and HoL.
Receive royal assent -> law.
Cannot be quashed by courts
Public acts- general public concern, most acts, lobbied
Private/Personal acts- particular places/people (LA seeking power to build bridge, LA must convince)

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17
Q

Bills dealing with public finances

A

Must start in Commons, can’t be defeated in Lords

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18
Q

Secondary/subordinate legislation

A

Law created by ministers/other under powers given to them by parent Act of Parliament - courts determine if under this power- may quash if not, if yes, equal statutory power as primary
(filling in gaps of primary legislation- practical measures for enforcement)
Not subject to same scrutiny as primary, Parliament (committee of both Houses) approves or rejects statutory instrument but cannot amend it

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19
Q

Public Bills (-> Public Acts)

A
  1. Government Bills (government policy, official parliamentary draftsman, based on ministerial proposals - Green Paper (discussion), White Paper (official policy)
  2. Private Members’ Bill- promoted by MP through Ballot system, often don’t pass
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20
Q

Primary legislative process in each House

A
  1. First reading
  2. Second reading (debating main principles, discuss amendments from other chamber)
  3. Committee stage (legislative committee may amend)
  4. Report stage (debate amendments, vote on committee’s report
  5. Third reading (final debate, vote on Bill, if passed goes to the other House)
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21
Q

Royal assent

A

Not legal rule but convention
AoP takes effect from them on but not into force (Secretary of State in that area issues statutory instrument- secondary legislation)

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22
Q

Structure of Acts of Parliament

A

Short title, Long title
Date enacted
Parts and sections

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23
Q

House of Lord’s powers

A

Review, proposed amendment, delay of legislation.
Cannot outright veto.
Bills can be introduced in either (public finance must be Commons)

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24
By-law (secondary legislation )
Local authorities/associations use to create local rules and regulations (under parent act's powers)
25
Statutory rule: literal rule
Words given their ordinary, plain and natural meaning, in context of whole Act/neighbouring sections of Act. Courts don't consider further what Parliament meant. Linguistic presumptions important. Overly literal can have unintended consequences so golden rule made.
26
Linguistic presumptions
expressio unius est exclusio alterius- expressing one thing excludes another- closed lists esjusdem generis - of the same kind, general 'other' after list must be restricted to qualities of those before (house, office, room - other must be indoors) noscitur a sociis - word known by company it keeps (interests and other annual payments- interests must be annual)
27
Statutory interpretation: golden rule
late 19th C- period of growth in legislation River Wear Commissioners v Adamson/ Adler v George Courts assume wider meaning to ordinary meaning where literal rule causes absurdity/inconvenience, but not further.
28
Statutory interpretation: Mischief rule
Now defunct -> purposive approach Consider original purpose of provision. Heydon's: 1. What was common law before the making of the Act? 2. What was the mischief + defect which the common law didn't provide for? 3. What remedy for the mischief did Parliament intend to provide? 4. What was the true reason for Parliament adopting that remedy?
29
Statutory interpretation : Purposive approach
Quintavalle- teleological EU approach, look beyond words at the purpose (legislation is skeleton for judges to flesh out) e.g. to seek compatibility with ECHR
30
Contemporary approach to statutory interpretation
Combination of literal and purposive
31
Constitutional responsibility for interpreting statute rests with
Judiciary (not Parliament) (not mentioned in case law but principles important)
32
Sources of EU Law
Primary: Maastricht Treaty (creation of EU), Treaty on the Functioning of the EEU Secondary: Regulations, Directives, Decisions arts 288 +289 of TFEU, Case law from Court of Justice of EU Tertiary: regulations, directives, decisions- delegated acts (supplementing), implementing acts (practical) Case Law International Agreements/Treaties Soft law- non binding opinions/recommendations
33
EU Regulations
directly applicable in legal systems of Member States (no national legal measures needed) Direct effect- individuals can rely on (clear + unconditional) regulations in their national courts
34
EU decisions
Binding only on parties to whom they are addressed. Can be enforced in national courts to those parties.
35
EU directives
Binding on the result to be achieved, but national authorities decide on form/methods. Member states pass national legislation which individuals rely on. If not implemented, infringement proceedings on member states by European Commission, until done can be enforced through 1. direct effect 2. indirect effect (domestic courts must interpret domestic law compatibly with EU law 3. State liability
36
EU case law has supremacy over conflicting domestic law (including fundamental rights provided by nation)
as per Court of Justice of EU Van Gend en Loos, Costa v ENEL National courts make preliminary reference to CJEU who makes ruling on questions, then court decides how to apply (no right of appeal from national to CJEU)
37
UK entered EU through European Communities Act 1972, now repealed by
European Union Withdrawal Act 2018 (31 Jan 2020)(retained bulk of EU law) amended by EU Withdrawal Act 2020
38
Transition/implementation period after Brexit
Part 40 EU law continued to apply until 31 Dec 2020 All EU derived domestic legislation passed before UK withdrew preserved (e.g. secondary legislation for directives)
39
After end of transition period (31 Dec 2020), UK governed by 2 regimes:
- Some EU law preserved by Withdrawal Agreement-> ss7A (Supremacy of EU law- disapply incompatible domestic) and 7C of EUWA 2018 (Northern Ireland Protocol maintaining open border + rights of Union citizens) EU case law made before end of transition period binding but case law after, courts only have to have due regard, preliminary references can be made on events commenced until 2028 Parliament retains right to override EU law - Rest of EU law converted into domestic UK law (can be amended/repealed by subsequent legislation) Retained EU (revocation and reform) Act 2023 (now known as assimilated(
40
Assimilated EU law
s2 and 3 of EUWA 2018 EU- derived domestic legislation and direct EU legislation (any EU regulation/decision/tertiary (not directive) which is in force + applicable in domestic law immediately before the end of the transition period) continue to have effect in UK can be amended by both primary and secondary legislation
41
No more supremacy of EU law
at the end of 2023, ceased where assimilated EU law involved (5.A1 EUWA 2018) courts have interpretative obligation to read + give effect to assimilated direct EU legislation (where incompatible, domestic enactments override-> incompatibility order)
42
Amendment of Assimilated EU law
Section 8 EUWA 2018: UK Government ministers can make regulations to fill gaps in assimilated EU law Sections 11 - 14 REULA 2023: English/devolved can make regulations that restate, reproduce, revoke, replace assimilated EU law (expires 23 June 2026 Section 15: English/devolved ministers can make regulations updating assimilated EU law taking account of new science/tech
43
Assimilated EU case law (that existed at end of transition period) still binding
Must have due regard to any after. Preliminary references to Court of Justice can't be made. Supreme Court/High Court of Justiciary in Scot./Court of Appeal/Court Martial Appeal Court not bound by retained EU case law (apply same test as when departing from their own case law) Charter of Fundamental Rights wasn't during transition period- not binding
44
General principles of EU law
overarching legal principles- aiding interpretation of lawfulness (fundamental rights, proportionality) binding on UK courts
45
Standard of proof in Criminal Case
beyond reasonable doubt burden is on prosecution
46
Guilty or not guilty
Guilty -> court sentences Can vacate plea if they change their mind Not Guilty -> trial -> verdict (if guilty -> sentence)
47
Magistrates Court
Virtually all cases start/end here. All summary offences + some either way offences Unlimited fine and/or 6 months prison for 1 offence Does not create precedent (bound by Administrative, Court of Appeal, Supreme)
48
Crown Court
Indictable only and either way (all transferred from Magistrates then passed on) Almost always involve juries Administered by Ministry of Justice/HM Courts and Tribunals Service
49
Grounds for appeal of sentence
- not justified by law - based on incorrect evidence - irrelevant considerations made when sentencing - misapplication/failure of sentencing guidelines
50
Appeals from Magistrates heard in Crown Court de novo
Crown Court Judge + 2 Magistrates Unless Magistrates decision legally flawed -> Administrative Courts (KBD, High Court)(appeal by way of case stated)
51
Privy council
Final appeal court for UK overseas territories and Crown dependencies (+ some commonwealth) Both civil and criminal Not binding on English courts but highly persuasive
51
D can appeal Crown Court conviction and/or sentence in Criminal Division of Court of Appeal (must gain permission from judge in separate hearing)
Not full hearings - papers from both sides Prosecution can too- quashing order for acquittal of unserious offence AG can appeal against unduly lenient sentence from Crown Court CoA can quash conviction and sentence Binds lower courts
52
Court of Appeal (crim division) appeals to Supreme Court
General public importance- R v R marital rape
53
Criminal Cases Review Commission
Statutory body which reviews alleged miscarriages of justice. Can send CoA cases back to them for review. Can send Magistrates/Youth Court cases to Crown Court for review (re-hearing) Appeal- must identify new evidence/new legal argument unless exceptional circs.
54
Civil law
regulates legal relationships between private individuals Government body/Crown can be a party
55
Civil court standard of proof
On the balance of probabilities (more than 50%) Burden of proof is on the claimant
56
Most civil claims begin in County Court (track depends on value + complexity) (£100k+ in High Court)
Deputy/District Judge (CC) -> Circuit Judge (CC) -> High Court -> Court of Appeal (civil division) -> Supreme Court
57
Judges in County Court
DDJ- fee paid District Judges - mostly procedural but some final hearings Circuit Judges (also in Crown)- most complex cases and appeals from DDJ/DJs
58
Tribunals
No jurisdiction for criminal, can transfer between civil First Tier - 7 chambers, appeals from citizens against government bodies decisions (employment and property take private cases) Upper Tribunal (equivalent to High Court)- hears appeals from First Tier (binds itself, first tier and all lower courts) 4 chambers 1. Administrative Appeals- War/Army comp, Social entitlement, Health+education+social care, general regulatory 2. Tax and Chancery - tax 3. Immigration and asylum- ditto 4. Lands - property
59
Senior President of Tribunals head the tribunals judiciary
remit extends to Scotland and NI depending on jurisdiction (Immigration and tax are UK-wide) Tribunal/Chamber President does day to day Tribunal judges / lay members (not legally qualified)
60
Coroners are not members of judiciary
barristers/solicitors/medical practitioners w/ 5+ years experience outside of being coroner - do inquests, make verdicts (esp. deaths in state custody)
61
Public inquiry- Inquiries Act 2005
Given special statutory powers to compel testimony/release of evidence Nothing to compel government to act on its findings
62
Other public inquiries- diff legislation
Town and Country planning decisions (public can challenge evidence as third party)
63
Senior Courts Act 1981
Supreme Court (before 2009, HoL)- 12 Judges (hears appeals from all 4 parts of UK) Court of Appeal- Master of Rolls- Civil, Lord Chief Justice- Criminal (3 judges per case) High Court - KBD, Chancery, Family (Masters=DDJs, 1st instance heard by High Court Judges) Crown Court
64
Leapfrog appeal
Judgment of High Court appealed directly to Supreme Court
65
Pro bono legal services
Citizens Advice Law Centres Advocate (Bar's pro bono)
66
McKenzie friends- litigants in person have non-legally qualified person to help them in court
Not regulated HC judge ruled that should be held to same standard as qualified lawyer Higher courts more affected by increase of litigants in person
67
LASPO
Civil legal aid if area of law in scope + strong claim
68

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