English Legal System (Public Law)

(ELS - Sources of Law) - Origins of the Common Law

1. Functions of the Law.

2. Rules designed to promote the orderly conduct of society so must … to be…

3. It also must __ to…

1. 1. Maintains peace & safety in society,

   2. regulates relationships between individuals and other legal entities,

   3. protects human rights and liberties,

   4. ensures smooth running of economic & political activities.

2. …reflect the wishes/ tolerance of broad majority of population, to be credible and enforceable.

3. Must develop.. to remain relevant (as law today has)

(ELS - Sources of Law) - Origins of the Common Law

1. Stages of Legal Development - periods x 4

1. Stages

   1. Pre-1066 - Norman Conquest - local systems & customs of Anglo-Saxon society

   2. 1066 - 1485 - the formation of the common law (over and above local systems and customs)

   3. 1485 - 1870s - Development of equity - two separate legal systems co-exist

   4. 1870s - present - joint jurisdiction for common law and equity. Massive development in statute law. Growth of gov & admin. Bodies. Influence of EU law post 1973.

(ELS - Sources of Law) - Origins of the Common Law

1. The Monarch as the source of justice

1. Origins of king’s/ Queen’s Courts. - following Norman Conquest (centralised, king as central figure).

   1. In Norman Period - The Curia Regis (King’s Council) allowed monarch to exercise his personal power - ‘High Justice’ in the most important cases.

   2. Existed alongside the local courts

   3. King was aided by a group of semi-prof clerics - eventually decided disputes themslves & became autonomous from King - estd. Themselves as Westminster.

   4. Magna Carta (1215).- required establishment of a fixed King’s Court

   5. King’s Council developed - to different branches of court dealing with different types of disputes - 3 courts:

(ELC - Sources of Law) - Origins of the Common Law

1. The Three Courts

2. Their end

3. Administration of law outside London & until?

4. Appeal Court?

1. Were:

   1. Court of Exchequer (royal finances)

   2. Court of Common Pleas (land)

   3. Court of King’s Bench ( serious criminal matters)

2. Remained until Judicature Act 1873

3. royal justices dispatched to provinces to hold sittings of the royal courts - ‘assizes’ - until 1971 Courts Act

4. Appeal court emerged in Court of Exchequer, abolished 1875 - > Court of Appeal

(ELC - Sources of Law) - Origins of the Common Law

1. The Common Law - what/ term?

2. Effectiveness?

3. In place when?

1. The law the King’s judges applied was based on the common customs of the country - hence common law term

2. Effectiveness of new system depended on growth of king’s courts & their ascendancy over local courts - not easy process, resistance by barons,

3. New system firmly in place and recognised as supreme over local courts by reign of Edward I - from 1272

(ELC - Sources of Law) - Origins of the Common Law

1. Meaning of the Common Law - different 93 distinctions, 1 identify)

1. Different meanings in different contexts!:

   1. Historically, to distinguish the law applied by the king’s judges VS law applied by local courts.

   2. To distinguish the law applied by King’s courts VS rules of Equity (a system developed by separate Court of Chancery)

   3. To distinguish case law (developed by judges through system of precedent) from statute law.

   4. To identify law applied by common law countries VS law applied by civil law countries (based on Roman law) - i.e. most of mainland Europe

(ELC - Sources of Law) - Origins of the Common Law

1. The Writ System - what?

2. What is a writ? & contained..

3. Issues

4. Different forms of/ types of writ

5. Issue

6. Issue with personal actions

7. Issues combined, encouraged…

1. No automatic right of access to the King’s court - to pursue a claim C had to purchase a writ from the Chancellor.

2. = a doc with a royal seal constituting a royal demand for Def to appear before court. Contained foundation of the complaint

3. Writ system became too rigid, forms of writs = fixed, only parl could allow a new type to be issued, if case not covered - no claim which court would try.

4. Writ of right, real action (recovery of land), personal actions (money-remedy) - debt, recovery of fixed sum, detinue, recovery of chattel, covenant, breach of promise, account, accounting for a payment, trespass, against persons/ goods/ land,

5. Exemplifies issue of bound by restrictive procedures. - for each writ = corresponding fixed procedure with steps to be followed - selection of wrong writ= fatal to an action.

6. Offered only remedy of damages (£) i.e. no compulsion to fulfil broken promise

7. The emergence of the law of equity

(ELS - Sources of Law) - Case Law

1. What?

2. Common law, aka

3. Governed by… & what it means

1. The decisions of courts & tribunals

2. = the body of case law decided by judges/ aka ‘judge made’ law

3. CL system governed by rules of precedent - decisions of judges higher up in the hierarchy of courts & tribunals are binding on lower ones.

   1. Have to decide cases in accordance with the principles laid down by higher courts

(ELS - Sources of Law) - Case law

1. Judges- what they do

2. How

3. Do they make law?

4. Retrospective & reactive v prospective

5. Approach of judges

1. Decide cases, (in uK) don’t start cases or investigate legal issues.

2. To decide a case, judges:

   1. Consider the evidence brought by the parties, decide credible?

   2. Consider applicable law - case/ statute, judges apply how leg is applied, give judgment

   3. Apply law to facts of case, reach decision on which party should succeed

   4. Decide what remedy successful party is entitled to i.e. damages & make order

3. Area of debate, traditional theory = they don’t, just declare what law is. I.e. retrospective prevent - decisions based on legal principle always been in existence.

4. Retrospective & reactive case law VS prospective nature of statute law (set out law for future, rarely retrosp),

5. Judges = normally cautious about upsetting long-standing precedents espec in crim/ property law. - relied on by many people → personal/ financial consequences.

(ELS - Sources of Law) - Case law

1. Stare Decisis - what?

2. VS civil

3. For English court to be compelled to follow what has been stated in an earlier case, it needs to be persuaded that … x 2

1. Characteristic of ELS, means stand by what has been decided = future cases with same material facts must be decided same way.

2. Contrast with civil - courts focus on interpret written codes of law rather than prev decisions applying them.

3. Requirements:

   1. The earlier case was decided in a court which binds it, and

   2. The relevant part of the earlier case is binding, rather than merely ‘persuasive’

(ELS - Sources of Law) - Case law

What part of a judgment is binding?

1. A P.O.L decided…

2. What is a P.O.L

3. Some Supreme Court judgments…

4. Precedent types x 2

5. What a judgment contains

6. Not every …

1. A point of law decided by superior court establishes a precedent

2. =a Q about the application of the law to the case which court has been asked by parties to decide

3. Some SC judgments deal with points of law of ‘general public importance’

4. Can be:

   1. Binding - must be followed

   2. Persuasive - will be considered by later court and may be followed

5. Consists of:

   1. A summary of the facts

   2. Statements of law - incl ratio decidendi and (often) obiter dicta

   3. Court’s decision on remedy (binding only on parties to case)

^ not every aspect of judgment is binding

(ELS - Sources of Law) - Case law

Ratio Decidendi

1. Means?

2. What?

3. Binding?

4. Material facts - What & impact

5. Identifying the ratio

6. Further difficulty

7. Judges & application

8. Useful guide to idenitfy ratio of judgment

1. The reason for the decision

2. The legal principle/ rule on which the court’s decision is based, applied to the material facts of the case.

3. The part which is binding on other courts

4. Material facts = those on which The decision of court depends - if they change, court’s decision might also change!

5. May not be immed obvious, bc judges given several reasons/ unclear reasons/ different reasons but agreed on final outcome.

6. Identifying the width/ level of generality a ratio is meant to have i.e wide/ narrow - only applying to very specific facts/ establishing a wider principle.

7. Judges may state width/ or subseq case jduges may consider width - i.e. narrow so they can distinguish earlier case - known as ‘confining the case to its facts’

8. Law report opinion

(ELS - Sources of Law) - Case law

Obiter Dictum

1. What

2. Binding?

3. They consist of… x3

4. Importance in practice?

1. Judge comments on area of law which is not necessary tor each a decision in the case

2. Not binding, but may be highly persuasive and influential in subsequent cases

3. :

   1. Statements of law not necessary to the decision i.e. on hypothetical acts/ immaterial facts

   2. Statements of law as the judge would like it to be, but for the doctrine of precedent

   3. Dissenting judgements - view of judge disagreeing w the majority

4. May be very important - sometimes so persuasive as to be practically binding

(ELS - Sources of Law) - Case law

Following & Applying

1. ‘Following’ - where…

2. Approving? - where..

3. Applying? - where…

4. How a court may avoid following an ___ = if it …

   1. I.e. by..

1. Where a court considers facts of case to be so similar to those in an earlier case that the law in the earlier case should be followed.

2. Where court doing following is a higher court, later decision = said to be approving the earlier one

3. Where court in later case consider facts of earlier case to have similarities to one before it & so applies law in earlier case - later court said to be applying earlier decision

4. Otherwise binding precedent = if it feels able to ‘distinguish’ an earlier case

   1. I.e. by finding a difference in the material facts in the 2 cases

(ELS - Sources of Law) - Case law

Reversing, overruling, Overturning

1. Reversing - a case…

   1. This… it simply…

2. Overruled?

   1. Original precedent - ?

   2. Aka

   3. Note -

3. Potential problem?

1. A case goes to appeal, and the higher appeal court disagrees with the lower court.

   1. Does not negate a precedent - simply means higher court has not applied the law in the same way.

2. If a superior court in a later case decides the original precedent in a past case is wrong & sets a new correct precedent instead.

   1. Original precedent = no longer good law

   2. Aka overturn

   3. Can also be only reversal/ overrule in part & so some elements of former decision remain intact

3. Potential problem - what happens when tops hierarchy of appeal court has nos = Supreme Court wishes to depart from its own precedent? (Ossification?)

ELS - (Sources of Law) - Case law

Departing from own precedent

1. Originally, until __, this… but…

   1. Discussed… but also…

2. SC

3. CA

   1. & 3 exceptions

   2. & what last one means

1. Until 1966, not formally possible but then appellate committee of House of Lords recognised may be necessary in some situations

   1. - rigidity > injustice etc. but also danger of disturbance

2. Austin v Southward [2010]/ practice direction 4 - SC maintain same guarded but potentially flexible approach

3. Similar approach taken - generally intent on maintaining its own precedents but 3 exceptions outlined in Young V Bristol Aeroplane [1944]:

   1. If CA came to prev conflicting decisions - today’s CA can select which one to follow

   2. If CA prev decision overruled expressly/ impliedly by SC / HL - neednt be followed

   3. If CA’s prev decison made per incuriam

      1. Not simply that earlier CA made an error - only where weren’t aware of a relevant authority (case/ statute) which would have been binding leading to fault reasoning

(ELS - Sources of Law) - Case law

Summarised rules of precedent:

1. Supreme Court & binding?

2. Court of Appeal

3. High court

4. Upper tribunal

5. First tier tribunal

6. Family court

7. Crown court

8. County court

9. Magistrates court

1. Binds all inferior courts, but may depart from its own decisions - 1966 practice statement

2. Binds all inferior courts and itself, but young v Bristol aeroplane exceptions

3. High court - binds all inferior courts, doesnt bind itself (for reasons of judicial comity), but will only depart from its own decision where convinced it was wrong

4. Upper tribunal - the first tier tribunal, inferior courts and itself

5. Not binding, but may be persuasive

6. Not binding

7. Not binding

8. Not binding

9. Not binding

(ELS - Sources of Law) - Equity

Its history:

1. As a consequence…

2. Petitions were… (…) for…

3. Later..

4. Equity can. Be defined as…

5. Court system has… but…

1. Of some problems created by the common law, aggrieved litigants who felt justice not served in king’s courts, petitioned the king to do justice in particular instances.

2. passed on to chancellor (keeper of king’s. Conscience) for a decision

3. Later dealt with through formal procedure by court of chancery (& lord chancellor)

4. 4. The body of principles and rules administered by court of chancery before the Judicature acts

5. Changed but underlying rules & principles of equity are still applicable today

(ELS - Sources of Law) - Equity

Origin of the Law of Trusts

1. An example of reason for emergence of this area of law = the ___ - when …

2. The issue ?

3. But the…

4. So the

1. The crusades - landowners went away to fight, needed someone to look after lands, collect rents etc. - custom arose where transferred legal title to estate to trusted friend (on basis use for benefit of landowner & family) but some ignored terms on which given land/ used for own benefit.

2. CL courts refused to recognise rights of original landowner - had no legal title & no standing in King’s courts.

3. But the chancellor intervened in equity - would be unconscionable for recipient of estate to ignore terms of transfer

4. So the recipient would be compelled to hold land for use and benefit of original landowner - (seeds of modern law of trusts)

(ELS - Sources of Law) - Equity

Discretionary nature & CL/ Equity conflict

1. Benefit= __ - the _ __ could… And…

2. A strong…

3. Initially LCs… But… so were accustomed…

4. So … & maintained… - a system which …

5. Equitable remedies remain…

6. Friction… - most intense… & monarch ___ decided… now enshrined in..

7. But judgment also… - reflected in…

1. Greater flexibility - Lord chancellor could act outside strict CL rules of procedure & Decide cases guided by own sense of fairness.

2. Moral element to decisions (origins in church)

3. Decided claims from own conscience, not considering earlier decisions- bUT overtime came more from legal rather than clerical background. - accustomed to adhering to precedent.

4. Equitable precedents grew, equity developed - maintained own separate system of rules - system which supplemented CL

5. Remain discretionary in modern law

6. Friction developed at times betw equity system & CL - most intense end 16th - 17th C & James I Decided in cases of conflict - equity should prevail over CL. - now enshrined in act

7. BUT judgment also stressed that function of equity = to supplement CL, not supplant it - maxim equity follows the law

(ELS - Sources of Law) - Equity

Two systems?

1. Until…, CL and equity were… (eq in…)

2. Having …. Caused problems for ___ - i.e. had to… If…

3. This __ of legal proceedings was…

4. Limited…, only later… - abolished…

5. BUT despite… There is still..

6. The principles of equity (in…), remain…

7. & importantly, equitable __ are…while… are..

8. Equitable remedies are therefore only awarded if…

1. Until late 19th C, CL and equity administered by separate courts ( Eq in court of chancery)

2. Having 2 systems of law caused problems for litigants - had to bring 2 separate actions if wanted Both damages (CL) and equitable remedies. - one in CL. One in chancery

3. This duplication was - costly, slow & inefficient

4. Limited mid19thC reforms failed to resolve problem, only later (Judicature acts in 1870s) fundamental reforms: abolished the division, created single High court and Court of appeal to apply both CL & equity rules & remedies

5. Desp this formal fusion of courts - still a crucial conceptual distinction

6. (In form of equitable maxims), remain applicable today.

7. Equitable remedies are still discretionary in nature VS CL damages (financial £ compensation) are available as of right.

8. Damages would not be an adequate remedy

(ELS- Sources of Law) - the equitable remedies

1. What? X5

2. SP? - an… Under…

   1. Available for …

   2. Generally only available where…

   3. Not available… or…

3. I? - an…

   1. Only awarded where..

   2. Can be.. or…

   3. Now under…- __ act- court can grant where _ and _

   4. Can also be made in…

   5. Can be awarded… or ..

1. Specific perfomance, injunction, declaration, rescission, rectification

2. SP= An order by court compelling a party to perform something they have promised to do under a contractual agreement.

   1. Available for breach of contract

   2. Valid and enforceable contract & damages would not be adequate remedy

   3. Not available for breach of contract for personal services i..e employment OR where performance would require constant supervision

3. Injunction - an order requiring party to either do something (mandatory I) or refrain from doing something (prohibitory I)

   1. Only awarded where damages not adequate compe. C

   2. Can be interim (Obtained before conc. of proceedings) or final (obtained at conc.)

   3. Now under statute - senior courts act; Court can grant where just & convenient

   4. Can also be made in county courts

   5. Can be awarded unconditionally or subject to ts& cs

(ELS - Sources of law) - Equity

1. D? - a ….About : x3?

   1. Courts can… but…, it is normally…

2. R? - the …

   1. Available at…

   2. May be available where… x3 (& brief explanation)

   3. Only available where…aka…

   4. & this is… i.e. where..

3. R? - this …

   1. Main purpose = …

   2. Only applies to…

   3. I.e…

   4. But…

1. Legally binding statement by court about:

   1. Legal rights of the parties, the existence of facts, or a principle of law

   2. Courts can make a binding D whether/ not another remedy is claimed but claim for D alone is unusual - normally sought in addition

2. Rescission - the setting aside of a contract

   1. CL and equity

   2. A contract has been concluded as a result of:

      1. Misrep (party induced to enter by false rep of fact)

      2. Mistake (doesnt correctly reflect party intentions)

      3. Duress/ undue influence (party put under unlawful pressure to enter it)

   3. Parties can be put back to their pre-contractual position - aka As if contract never been entered into

   4. & this is not always possible I.e. where partially perfomed

3. Rectification - this corrects a doc to reflect the parties/ contractual intention

   1. To correct mistakes made in recording agreements

   2. Only applies to written contracts

   3. I.e. missing words, incorrect descriptions or numbers

   4. But if errors made are too fundamental/ extensive - not available

(ELS - Sources of Law) - Primary & Secondary Legislation

1. Leg = the…., it is law … . 2 categories =

2. Primary? = …, put …. (_ ), and … (__ __) by…

   1. acts of parl receive… before..

3. Secondary? - aka __ __, law created by… under…

   1. used to …., - ___ - enabling law…

1. 2nd major source of law in E&W, made with approval of parl, primary & secondary.

2. P = acts of parl, put before parl as bills (draft leg), debated, and passed (almost always) by both houses of parl

   1. recieve royal assent = formal approval by monarch, before becoming law.

3. S, aka subordinate leg, law created by ministers (/ other bodies) ,under powers given to them by a ‘parent’ act of parliament

   1. used to fill in the details of primary leg = practicality, enabling law to be enforced & operate in daily life.

(ELS - Sources of Law) - Primary & Secondary Legislation

Public & Private Acts of Parliament

1. AOFP can be … into

2. public acts = acts which…

   1. debated …

   2. outside bodies… can only… = practice known as ‘__’

   3. are the … of…

3. private (personal) AOFP = relate to…

   1. usually stem from… like … (x2)

   2. i.e.

   3. the promoter =…. of the…

4. primary leg starts … & can dvi

1. can be divided into private acts & public acts

2. acts which relate to matters of general public concern

   1. debated in both houses of parl

   2. outside bodies wishing for its views to be considered= can only do so by persuading an MP/ peer to put forward views in debate. = ‘lobbying’

   3. public acts= largest part of parliamentary legislative output

3. acts relating to particular places or people

   1. usually stem from proposal by a large org like a local auth, or large private company

   2. i.e. a local auth might seek power to build a bridge.

   3. the promoter of a priv act = resp for convincing parl of the desirabiltiy of the proposal

4. starts life as a bill (draft leg) - & can divide public bills into gov bills and private members’ bills