Summary Notes - The Legal System PDF

Summary Notes – is En The Legal System im Solicitors Qualifying Examination – SQE ah br ,I an zk O © QLTS Sch...

Summary Notes – is En The Legal System im Solicitors Qualifying Examination – SQE ah br ,I an zk O © QLTS School Ltd. All Rights Reserved. Not for Distribution.  Summary Notes – The Legal System 1. Introduction to the English Legal System Three legal jurisdictions within the United Kingdom: (a) England and Wales (b) Scotland and (c) Northern Ireland There are several sources of law in the English legal system. is (1) common law (2) equity En (3) Acts of Parliament (4) statutory instruments (5) international treaties (6) EU law (7) conventions im ah (8) works of authority (9) law-making institutions (10) custom br Common Law ,I Common law – a system of laws which evolve through judicial decisions of courts and other tribunals, which bind or influence subsequent judicial decisions, thus forming a body of law in an their own right. It is known as case law, or precedent; and is subordinate to legislation passed by Parliament. zk It is governed by stare decisis – the principle that similar cases should be decided according to consistent principled rules; the court is bound to follow the prior decision unless the case can be distinguished as being different from the authority case on the facts. O “Matter of first impression” – facts and legal issues before the court are fundamentally distinct from all previous cases and judges can make law by the judgment they hand down which, if the court is of sufficiently senior level, becomes precedent and will bind future courts. Equity Equity – a set of legal principles that seek to achieve justice where the application of strict rules of law would be overly harsh or unfair. It is governed by maxims but allows for flexibility in finding solutions to apply justice in accordance with “natural law”. 2 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System It applies primarily in personam (“against the person”), rather than in rem (“against the thing”) In personam – means that the court is directly addressing the person before it and their individual circumstances, in order to prevent a person acting unconscionably. Equitable remedies are granted at the sole discretion of a judge and involve one party doing something (or not) as directed by a court (e.g. injunctions and specific performance). Equitable awards also require that the person seeking equitable relief must have acted in good faith in the matter at hand (i.e. come with clean hands). Acts of Parliament is Acts of Parliament/Statute Law - primary instruments by which law is made by Parliament. En Parliamentary Sovereignty – the ability of Parliament to legislate however it wishes, on any subject it wishes, as well as being the ultimate law-making body in the United Kingdom, to which no other body – in theory – is superior. im It precludes any hierarchy among Acts of Parliament: all parliamentary legislation is, in principle, of equal validity and effectiveness but some statutes are considered “constitutional” such as Human Rights Act 1998. The Magna Carta, which was agreed by King John in 1215, ah also has a special status as a royal charter of rights. Statutory Instruments br Statutory Instrument – a form of legislation which allows the provisions of an Act to be subsequently brought into force or altered without Parliament having to pass a new Act. ,I It is also referred to as secondary, delegated or subordinate legislation. an Acts of Senedd Cymru Acts of Senedd Cymru have the same status as Acts of the UK Parliament as primary zk legislation and are generally not challengeable on common law grounds (AXA General Insurance Ltd & Others v The Lord Advocate & Others ). They cover a range of devolved matters including education, agriculture, local government, and housing for which Senedd O Cymru has legislative competence. The UK Parliament retains sovereignty and power to make laws in relation to Wales, but it is formally recognised under the Government of Wales Act 2006 that it will not normally legislate with regards to devolved matters without the consent of Senedd Cymru. International Treaties International Treaties – international agreements between countries; also called conventions, protocols or charters. 3 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System International treaties which the UK government intended to ratify, such as the European Convention on Human Rights, were traditionally negotiated by the government, acting in the name of the Crown, and entered into under the royal prerogative. EU Law Retained EU Law – domestic law derived from the UK’s obligations under the EU treaties. EU law no longer prevails over any domestic law passed or made on or after 31 December 2020 (“IP completion day”), but still prevails with respect to the interpretation of pre-IP completion day law, if the domestic law conflicts with EU law. is Conventions En Conventions – form part of the constitution although they are not typically codified. While they are not legally binding or enforceable in court, they are almost universally observed by those to whom they relate. Conventions have authority and effect through customary adherence over time. im Conventions ensure that the machinery of government functions smoothly and mostly relate to the exercise of the Sovereign, the Government, Parliament and the Judiciary of their functions. ah Works of Authority Works of authority – treatises that are sometimes cited as interpretations of aspects of the UK br constitution and are particularly authoritative in their explanations and espousing of principles. ,I Most are works written by 19th or early 20th Century constitutionalists including A.V. Dicey, Walter Bagehot and Erskine May. an Law-Making Institutions Law-making institutions in the English legal system include: zk the Parliament, Government and Sovereign; O the civil and criminal courts and the Judiciary; regulatory bodies; and CJEU case law and general EU principles decided prior to IP completion day emanating from the CJEU and other EU institutions. Custom Customs – rules which have obtained the force of law in a particular locality and many have been in place prior to the introduction of the common law. 4 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System These must be reasonable, immemorial, and have continued without interruption to be applicable and there must be certainty as to the locality where the custom is said to exist, e.g. a parish, or county. Custom is not legally binding on the English courts; however, prescription is sometimes used “as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority.” is En im ah br ,I an zk O 5 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System 2. The Courts of England and Wales The Civil and Criminal Courts Three distinct legal jurisdictions in the UK: (1) England and Wales (2) Scotland (3) Northern Ireland Her Majesty’s Courts of Justice of England and Wales – civil and criminal courts responsible is for the administration of justice in England and Wales. Her Majesty’s Courts and Tribunal Service (HMCTS) – an executive agency of the Ministry of En Justice which administers the Court of Appeal, the High Court, the Crown Court, the Magistrates’ Courts and the County Court. Supreme Court – the highest appeal court in almost all cases in England and Wales and im Northern Ireland, as well as in civil (but not criminal) cases in Scotland. It was created by the Constitutional Reform Act 2005 and commenced operations in 2009. It took over: the judicial functions of the House of Lords ah devolution cases from the Judicial Committee of the Privy Council Court Structure for Civil Matters and Criminal Cases in England and Wales br Civil Courts Criminal Courts ,I The State usually has no interest in the Criminal courts deal with defendants accused of outcome of cases. These are usually private crimes and, if the defendant denies committing matters (unless the State or one of its the acts charged against them, the court must an organs is the claimant or defendant in choose between their version of the facts and proceedings). the prosecution’s. The objective of civil courts is not to punish The objective of the criminal courts is to allow zk defendants, but to restore the parties, as far the State to punish people who have committed as possible, to their previous positions. offences against other people/society. The party who instigates the complaint or The party who instigates the complaint or action O action against the defendant is called the is the Prosecutor/Prosecution (the State). Claimant. In civil cases, the claimant is required to In criminal law, the prosecution must prove the prove his case “on the balance of case “beyond reasonable doubt”, unofficially probabilities”, unofficially described as the described as the 99% test, to get a conviction. 51% test. A defendant in a civil case is either found A defendant in a criminal law case is either by the court to be liable or not liable. They found guilty or not guilty, and may be punished may be required to pay damages to the by law. claimant and/or to obey other orders or injunctions of the court. 6 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System Hierarchical structure of the courts in the UK: is En im ah br ,I an zk O 7 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System Adversarial Legal System English legal system – predominantly adversarial. Representatives from each party investigate, debate and argue their case, while the judge takes an impartial role in the process and acts as a referee or arbiter between the prosecution/claimant and the defence. is En im ah br ,I an zk O 8 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System 3. Structure and Jurisdiction of Civil Courts in England and Wales Two principal civil courts of first instance: (1) the High Court and (2) the County Court The County Court County Court – deals exclusively with civil cases and generally presided over by Circuit Judges or Recorders (part-time judges) while District Judges handle interim matters and have is jurisdiction to hear trials that do not exceed £25,000 in financial value. It is a single national entity with a national jurisdiction and various locations throughout En England and Wales; establishment and jurisdiction derived from the County Courts Act 1984 (as amended by the Crime and Courts Act 2013). A case may be transferred to the defendant’s local County Court hearing centre if desired (the im case to be transferred automatically to the defendant’s home court if the case is for a fixed amount of money owed by an individual). ah The High Court of Justice High Court – a civil court of first instance for higher value or specified claim; and a criminal and civil appellate court for cases from lower courts. br It is headquartered at the Royal Courts of Justice building in London and has district registries across England and Wales; jurisdiction is governed by the Senior Courts Act 1981 (formerly the ,I Supreme Court Act 1981). an Three Divisions – not separate courts, but have separate procedures and practices adapted to their purposes and each hears particular types of case: King’s Bench, Chancery and Family. (1) King’s Bench Division – largest and busiest of all the divisions and is presided over by the zk President of the Division, who is assisted by a vice-president and numerous High Court judges. Its principal business involves multi-track claims for damages, based on all types of common O law civil actions, such as breach of contract and actions in tort. It includes: (a) the Commercial Court (which deals with contract disputes, banking, carriage of goods, insurance cases, and more), (b) the Admiralty Court (which deals with shipping matters), (c) the Technology and Construction Court (which deals with matters requiring specialist technical or scientific knowledge e.g. professional negligence cases against architects or engineers and building disputes), and (d) the Administrative Court (hears judicial review applications where certain government decisions are challenged on legal grounds). 9 © QLTS School Ltd S/N 763269  Summary Notes – The Legal System (2) Chancery Division – principally concerned with claims arising under contracts for land (conveyancing disputes, rectification of deeds) and matters about trusts and the administration of estates. The president of the Chancery division is the Chancellor of the High Court. Insolvency and Companies Court – forms part of the Chancery Division of the High Court and deals with applications under the Companies Act and insolvency matters. Business and Property Courts – a collective of the specialist civil courts (the Chancery Division, the Admiralty Court, the Commercial Court, and the Technology and Construction Court from the King’s Bench Division) which deals with disputes covered by specialist lists such as the Revenue List, the Competition List, the Financial List, etc. is (3) Family Division – concerned with family proceedings and non-contentious probate matters En and is presided over by the President of the Family Division. Family Court – deals with matters including parental disputes, local authority child protection, divorce and dissolution of civil partnership, child support, domestic violence, adoption, guardianship etc; may transfer cases involving complex issues to the Family Division. High Court or County Court im ah Civil claims are generally allocated as follows: (1) £100,000 – may be started in the County Court or the High Court (in the High Court only if complex, of high monetary value or the outcome is of public importance) an (3) Claim in equity