Features of the Common Law

Based on the first presentation of the Common Law Lecture

What are the main characteristics of common law

• not written down

• evolved over time through judge made decisions

• key terms: precedents, ratio decedendi, stare decisi

What is the relationship between Common and Civil Law

• coexistence

• the former helps us understand the latter

How do we know that common law exists

• plea rolls, case reports, learned works

What was the importance of the Norman Conquest in 1066 to the development to the common law

• King william defeats Anglo Saxons

• didnt want to change their laws, but didnt trust them fully

• kings followers went around and solved legal disputes instead

• during henry IIs reign the kings court (curia regis) was established

  • sent judges on circuits

  • met up regularly and discussed cases and decisions

Explain Equity

if common law cannot find a solution or verdict in a legal case, or if the result is simply unjust, equity is a second way to find justice

the lord chancellor got petitions that overruled judgements (people who were unhappy with decisions made my judges appealed ot the king, he passed it on to the lord chancellor), and that caused a seperate legal entity to develop (equity)

Equity and Common law were fused (Fusion of law and equity)

Stare decisi

to stand by things decided

ratio decedendi

the reason for deciding something, which must be applied to later cases

obiter dictum

something said by the way, considerations that were made but do not drastically impact the final decision/core problem

dont have to be applied to later cases, but should be considered (persusaive quality)

Precedent

a rule set in a previous legal case that will be applied to future cases

how to overrule a precedent

overruling

• higher courts or the SCUK can overrule precedents based on time changes

distingushing

• the facts of two cases are too different for the precedent to be applied to the latter case

legislation

• parliament changes the law completely

explain the supreme court of the UK

• the highest court

• used to be called house of laws

explain the court of appeal

• second highest

• oversees lower courts decisions

• civil division

  • private law cases

  • Master of Roles (MR) = VP court of appeal, highest position in civil divison

• criminal divison

  • lord chief justice (highest position in court of appeal)

  • criminal law case s

  • innocent until proven guilty

explain the high court of england and wales

• under court of appeal

• history: through trade and commerce there was an increase in litigation which led to judicary reforms

name and explain the roles of lower courts

• magistrates court: smaller cases, eg shoplifting)

• crown court: 12 people in a jury, who have to find a verdict

• country court: lowest court for civil cases

explain the tribunal system

chairperson + 2 tribunal members (1 from both sides)

Explain the Jones v National coal board (1957) case

o   Jones killed in accident whilst working in mine belonging to national coal board

o   Mrs jones (widow) claims that accident was also caused by neglect by national coal board (alleged that employer had not observed health and safety regulations properly), wants compensation for it

o   Problem: judge who heard the case let barista who rep the coal board interfere too much

the problem with the judge led to a revision of the case

• structure: summary of the case, abstract of what the law is (using quotes and decisions made by historical figures), application and decision

Explain the Donoghue v Stevenson case as well as the ratio and obiter

the case

• donoghue got a bottle of ginger beer gifted by her friend (who bought it from a retailer)

• after drinking it and discovering a decomposing snail she had gastro entitis

• ration (narrow): producer must take care so the consumer of their product doesnt come into harm, even if the final consumers identity is unclear

• obiter (broad): neighbour principle in law (developed by lord atkin based on the biblical story of the good samaritan)

Explain the Grant v Australian knitting mills case and its connection to the donoghue v stevenson case

the case

• mr grant bought two pairs of long johns (his only pairs) and switched them weekly, he developed a rash so badly that he was hospitalised (chance of survival was unclear)

• undergarments were contaminated with sulphuric acid

• the ratio developed during the latter case was broadened to be applicable to non consumable goods

what are the main differences in common and civil law

Common law	Civil law
generally uncodified precedents are binding through court hierarchy judge made laws and statues interact	codified systems origins in roman law organised around codes decisions made by previous courts are not as binding