Legal Skills (9th Edn) - Chapter 5 - Case Law PDF

5. Case law Legal Skills (9th edn) Emily Finch and Stefan Fafinski p. 98 5. Case law Emily Finch, and Stefan Fafinski https://doi.org/10.1093/he/9780192873088.003.0005 Published in print: 14 July 2023 Published on...

5. Case law Legal Skills (9th edn) Emily Finch and Stefan Fafinski p. 98 5. Case law Emily Finch, and Stefan Fafinski https://doi.org/10.1093/he/9780192873088.003.0005 Published in print: 14 July 2023 Published online: August 2023 Abstract Case law can be broken down into common law, equity, and custom. This chapter begins with a discussion of common law and equity, including a brief history on how these sources came into being. It then turns to custom as a further source of law. It also provides an overview of the court system to illustrate how the various courts in the system link together in a hierarchy. It concludes with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law. Keywords: common law, equity, sources of law, custom, court system, European Court of Human Rights, Human Rights Act 1998 Introduction This chapter will begin our investigation into case law as a source of law. Case law can be broken down into three main types: common law, equity, and custom. This chapter will begin by explaining what common law and equity are, including a brief legal history to help you understand how these different types of case law came into being. We will then take a very quick look at custom as a further source of law. Since the common law is made up of a huge number of cases decided by judges in different courts, this chapter will also include an introduction to the court system in the UK to help you understand how the various courts sit together in a hierarchy before closing with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law. Understanding the sources of case law is as fundamental a legal skill as understanding the role of legislation. Since all legal topics will generally include some case law, equitable principles, or both, you would not otherwise be able to understand how the area of law you are studying came into existence or has Page 1 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law evolved over time. The law is constantly changing and takes its shape from a whole range of sources. You must therefore understand each of these different sources to understand the law and its development properly and thoroughly. Learning outcomes After studying this chapter, you will be able to: Distinguish between the common law and equity as sources of law Chart the historical development of the common law and equity Appreciate the (admittedly limited) role of custom as a further source of law Understand the hierarchy of the courts and the types of case heard in the various courts Discuss the effect of the European Convention on Human Rights and the Human Rights Act 1998 on case law 5.1 Common Law and Equity Having considered the role of legislation as a source of law in the last three chapters, the next two sources of law to consider are the common law and equity. However, before looking at them in detail, we will set p. 99 out a very brief legal history. This should help you to understand ↵ how the common law and equity developed over time as two separate, but important, sources of law and how they relate to each other today. It will also introduce some terminology which will be useful later as you move onwards. 5.1.1 A brief legal history A timeline to give you an overview of the history that we are about to cover is provided in Figure 5.1. Page 2 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 5. Case law Figure 5.1 Timeline of legal developments Page 3 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law p. 100 5.1.1.1 The emergence of the common law Before the Norman Conquest in 1066 there was no single system of law common to the whole country. There was a range of local customs: these were unwritten and varied throughout the country, although the general effect of the local laws was similar in practice. The use of custom as a source of law today is covered later in section 5.2. Disputes according to these laws were judged by the local sheriffs sitting in the courts of the Shires and Hundreds (subdivisions of the Shires) and feudal courts held by landowners. In an attempt to create some level of uniformity and consistency in the law, the King sent commissioners throughout the country to perform various tasks on his behalf, such as checking on local administration and tax collection and hearing cases. The judicial functions of these commissioners increased, evolving to become a system of justices (judges) who held sittings (known as Assizes) of the Royal courts in each county, three or four times a year, to hear serious criminal cases. Less serious cases were still dealt with by the local sheriff. This system was extended to hear civil cases in 1285. Over time the judges began to establish a system of law common to the whole country—the ‘common law’—by consistently applying the best local customs (from outside the county if necessary) and rules derived from the judges’ own decisions in cases. Therefore, the common law emerged from a combination of local custom and case law (that is, the consistent use of principles from previously decided cases). By 1400, the Royal Courts at Westminster had three main common law courts staffed by professional judges. The three courts were: The Court of Common Pleas dealing with disputes between the King’s subjects The Court of Exchequer dealing primarily with matters concerning taxes but also later dealing with some common law matters The Court of King’s Bench dealing with cases of particular concern to the King. The common law developed as a system because the judges tended to follow the principles and decisions made by other judges in similar cases that had arisen in the past. Over time, and in certain circumstances, these so-called judicial precedents (with ‘precedent’ meaning ‘an example or guide to be considered in subsequent similar circumstances’) became binding (which meant that courts had to follow them) rather than merely being useful persuasive guidance (which meant that courts could think about them but ignore them if they wanted to)—and remain so today. The operation of the doctrine of judicial precedent is covered in detail in section 7.3. 5.1.1.2 Problems with the common law An action could only be started in the Royal courts by a writ purchased from the office of the Chancellor. Since the existence of a common law right needed a procedure for enforcing that right, an action could only be brought if an appropriate writ already existed which covered the facts of the case. As a result, the number of writs grew to many hundreds. Page 4 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Moreover, the procedure for bringing an action before the courts was very formal and inflexible, leading to delay and expense. The only remedy generally available to a successful claimant was monetary damages— which was not always an adequate way to solve the problem. For instance, the courts could not make 1 individuals do (or stop doing) something, or even return someone else’s personal property. p. 101 ↵ Finally, the common law did not recognize certain rights, such as trusts or a borrower’s rights under a mortgage. At common law, once the date for repayment of a mortgage had passed, the lender regained ownership of the land if payment had not been made. This happened even if the borrower was able to pay back the loan. The repayment had to be counted by sunset on the repayment day for it to be effective and prevent the lender from reclaiming the land. Many unscrupulous lenders mysteriously vanished on the repayment day, meaning that the borrowers lost the land, without any form of legal redress. This seems to be an incredibly unfair outcome; nevertheless, it was one which the law rigidly permitted without any flexibility at all as far as the borrowers were concerned. 5.1.1.3 The emergence of equity The rigid nature of the common law, together with its associated expense and delay, led to an increasing number of unhappy citizens petitioning the King directly to exercise his Royal prerogative as the ‘fountain of justice’. The King (in Council) originally heard these petitions, but as their number increased, this duty was delegated by the King to the Lord Chancellor, who, as a result, became known as the ‘Keeper of the King’s Conscience’. In 1474, the Court of Chancery (‘the Lord Chancellor’s Court’) was established, entirely separately from the King’s common law courts. Proceedings in the Court of Chancery did not require a writ, and the Chancellor decided cases according to the rules of fairness and natural justice. In other words, he sought to achieve equity (a situation in which everyone is treated fairly and equally). He was able to develop new fair (equitable) rights and remedies to take away some of the harsh or unfair results that the common law produced and he did not have to get involved in the excessive procedural burden of the common law courts. Although the Court of Chancery was more concerned with equity (fairness) in individual cases, these cases developed a set of general equitable principles which everyone accepted were just, fair, and reasonable (known as ‘equitable maxims’) along with a set of rules and procedures which set out how these principles were applied. Equitable maxims, rights, and remedies are covered later in section 5.1.3. 5.1.1.4 The conflict between common law and equity In certain situations, the common law and equity produced entirely different results. For instance, in the example given earlier regarding mortgages, as far as equity was concerned, it was unfair to the borrower to lose the right to redeem the mortgage even though the redemption date had passed. Therefore, at common law, the borrower could not repay the mortgage after the redemption date, but in equity, this was permissible. (The equitable right is now known as the equity of redemption.) Page 5 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law In 1615 the Chief Justice held that the Court of Chancery (applying the principles of equity) had no power to 2 intervene where a common law court had decided a case. The Lord Chancellor stated that the Court of 3 Chancery could, however, set aside the decision of the common law courts. This clear conflict was referred to King James I, who decreed that, even if a case had been decided in the common law courts, the Court of Chancery could intervene and apply its principles of fairness and justice if necessary. Therefore equity— and its ideas of fairness and justice—prevailed over the common law. p. 102 5.1.1.5 Reform and the present day Over time, the principles of equity developed further and more processes were developed for dealing with them. This led to a legal system with too many courts and too much overlap between common law and equity. It became time-consuming, expensive, and difficult to resolve cases. Moreover, the different remedies available in each of the courts meant that, in certain cases, a claimant would have to bring two actions arising from the same dispute: one in the common law courts for monetary damages (compensation) and the other in the Court of Chancery for an equitable remedy. The overhaul of this unsatisfactory system began in the 1850s with the Common Law Procedure Acts 1852, 1854, and 1860; the Court of Chancery Procedure Act 1852; and the Chancery Amendment Act 1858. This enabled equitable remedies and defences to be available in the common law courts and allowed the Court of Chancery to make monetary awards of damages. The Supreme Court of Judicature Acts 1873 and 1875 fused the administration of common law and equity into a single court structure regulated by a single set of procedures. However, in cases of conflict (which 4 are rare since equity evolved to supplement the common law), equitable principles still prevail. This is, for all practical purposes, the same court structure that is in place today. An overview of today’s court structure and the jurisdictions and personnel of the courts is given in section 5.3. 5.1.2 The common law With the brief history of the law in mind, you will have seen that, originally, the term ‘common law’ meant the law that was decided by judges in particular cases in the common law courts and which was common (in the sense that it was applied in the same way everywhere) to the whole of England. Although this is true, it is not nowadays the usual meaning of the phrase. ‘The common law’ today is usually taken to mean all law that is not the result of legislation; in other words, the law which comes from cases decided by judges and the value of the judicial precedents that these decisions set. Case law is a major source of domestic law: indeed, a great deal of law has never been enacted as legislation and is therefore found in the results of decided cases. In addition, as you will have seen in chapter 4, case law also sets precedents when the courts decide the meaning of ambiguous pieces of legislation. The operation of the doctrine of judicial precedent is explained in section 7.3. Page 6 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law 5.1.3 Equity Equity remains a source of law. You may hear, or read, of the contrast between ‘law’ and ‘equity’. However, in this case ‘law’ is an abbreviation for ‘the common law’. Therefore, equity is law in that it is part of the law of England and Wales. However, it is not part of the common law. It is the administration of common law and equity that has been fused into the court structure: the principles of common law and equity are still distinct and separate. For instance, common law remedies are granted as of right (if a common law remedy is available, the court must grant it) whereas equitable remedies remain within the discretion of the court and are subject to equitable principles (if an equitable remedy is available, the court does not have to grant it). p. 103 ↵ The brief history provided earlier referred to equitable maxims, rights, and remedies. These will be explained here in more detail. 5.1.3.1 Equitable maxims Equitable maxims are sometimes referred to as ‘equitable doctrines’. There are several equitable maxims that have developed over the years. Table 5.1 sets out some of the more commonly encountered. Many of these will not make complete sense if you have not studied the specific areas of the law in which they feature yet, but you will encounter them throughout your studies. You will see from the meanings, though, that all relate to general principles of fairness and reasonableness in some way. Table 5.1 Some equitable maxims Maxim Meaning He who comes to equity must come with clean Equity will not be available to a party that has behaved unreasonably hands in relation to the disputed matter Equity looks on that as done which ought to be Equity will enforce the intentions of the parties rather than enforcing done. Equity looks to intent rather than to form the position reached by sticking to the common law Delay defeats equity Equity will not be available to someone who seeks it after an unreasonable delay Equity is a shield not a sword A party cannot bring a claim in equity (sword) but may rely on equity to protect their own position (shield) Equity will not suffer a wrong to be without a Equity will allow a party that has been wronged the capacity to ask remedy for a remedy Page 7 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Maxim Meaning Equity follows the law Equity will not allow a remedy that is contrary to law Where there is equal equity, the law will prevail Equity will not provide a remedy where the parties are equal, or where neither has been wronged Equity will not assist a volunteer Equity will not assist someone who has given no consideration for a promise Equity will not allow a statute to be used as an Equity will not allow someone to rely upon an absence of a statutory instrument of fraud formality if to do so would be unconscionable and unfair Equality is equity If a trust does not specify how property is to be divided, then there is a presumption of equal shares 5.1.3.2 Equitable rights Equity also evolved to recognize new rights that were not within the scope of the common law. These include the equity of redemption discussed earlier, which protects the rights of borrowers under a mortgage. A further example is that of the equitable rights of beneficiaries under a trust. Although the law p. 104 of trusts (or, at the time, ‘uses’) developed in the 1200s as a means ↵ of protecting the land of crusaders and land held for the benefit of religious orders, it is still relevant today in matters of, for example, co- ownership of property, wills, charity, pension funds, and taxation. 5.1.3.3 Equitable remedies As mentioned in the brief history, the Court of Chancery developed a range of new equitable remedies. These still exist, but remember that they are only available at the discretion of the court. The most common equitable remedies sought are injunction, specific performance, and rescission. Injunction An injunction is a court order which compels a person or body to perform some action or to cease some action. There are different types of injunction. Examples include: Mandatory injunctions compelling someone to perform an act (‘you must’) Prohibitory injunctions restraining someone from committing some act (‘you must not’) Page 8 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Interim injunctions granted before trial to preserve the status quo until the case is decided. Specific performance An order of specific performance compels a person or body to perform their obligations under a contract or trust. Specific performance is not generally available where monetary damages (i.e. the common law remedy as of right) would provide an adequate remedy. It is therefore usually only relevant to special situations (such as a contract for the sale of land). Rescission An order of rescission sets aside a contract. As well as being subject to the usual equitable principles, rescission is only generally available where it is possible to restore the parties to the contract to the positions that they were in before entering into the contract. 5.2 Custom To enforce a local custom as an exception to the common law, it is necessary to show that the custom p. 105 meets seven main tests. These were introduced by judges as a means of giving them ↵ the power to disregard any local custom which they considered unsuitable for recognition as a legal right. As you will see, the tests are very difficult to establish: The custom must have existed from time immemorial. This was arbitrarily defined as meaning the year 1189 (or the start of the reign of Richard I). If it can be proved that the custom did not exist in 1189, then it will fail. It must have existed without interruption since 1189. It must have been enjoyed without force, stealth, or permission. It must have been observed because people felt that it was obligatory. It must be capable of being precisely defined. It must be reasonable. It must also have been reasonable throughout its entire period of use. It must be consistent with other local customs. Page 9 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law In practice, if the custom has been observed ‘in living memory’, this raises a presumption that it has been observed since ‘time immemorial’ unless evidence can be provided to rebut this presumption. Custom is typically used in connection with land disputes, such as rights of way or access. However, as you might imagine, the difficulties involved in passing these tests mean that claims to local custom are nowadays extremely rare and success is rarer still. Despite the inherent difficulties in proving local 5 custom, examples of successful claims include Egerton v Harding, involving a customary duty to erect a 6 fence to prevent cattle straying from the common, and New Windsor Corporation v Mellor, in which the customary right of the mayor, bailiff, burgess, and others to indulge in lawful sports (including shooting) on land in a local borough was upheld. 5.3 The Courts, Their Personnel, and Their Jurisdictions Without a set of institutions (courts) to enforce legal rules, there would be no legal system. There needs to be a system of courts to hear cases for the first time (known as ‘first instance’ courts), as well as higher courts (known as ‘appellate courts’) which offer a way for individuals to bring appeals if they disagree with the outcome of a case in the lower courts. As you will see when looking at the doctrine of judicial precedent in section 7.3, there are rules which determine whether or not a particular court will be bound by a decision of a higher court—generally meaning that it will have to follow the particular legal reasoning of that higher court. Therefore, a thorough understanding of the institutions of the modern court system is vital to your study of law. This section will provide an overview of the various courts, the types of case which they hear, and the personnel who hear and decide those cases. p. 106 The domestic courts can be depicted as shown in Figure 5.2. ↵ Page 10 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 5. Case law Figure 5.2 The courts 5.3.1 Classification of the courts Courts may be classified in two different ways: Criminal and civil courts Page 11 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Trial and appellate courts 5.3.1.1 Criminal and civil courts Criminal courts determine the guilt or innocence of defendants according to the criminal law and dispense punishment to convicted offenders. p. 107 ↵ Civil courts primarily deal with the resolution of disputes between individuals and award appropriate remedies to successful claimants. These remedies are normally in the form of monetary damages (compensation). You should note that a particular set of facts can give rise to proceedings in both the criminal and civil courts. For instance, if you were knocked down and injured by a reckless driver whilst walking down the street, this could lead to a case in the criminal courts (for, say, possible offences under the Road Traffic Act 1988) and in the civil courts (to seek compensation for your injuries in the tort of negligence). The Crown Court deals almost exclusively with criminal matters. The County Court has only civil jurisdiction. However, all the other courts have both criminal and civil jurisdictions. 5.3.1.2 Trial and appellate courts Trial courts hear cases ‘at first instance’. This refers to the first time that a case is heard in court, before any appeals. They consider the matters of fact and law in the case and make an appropriate ruling. Appellate courts consider the application of legal principles to a case that has already been heard at first instance. Some appellate courts also have jurisdiction to reconsider disputed issues of fact. Trial and appellate functions are often combined within one court as you will see when considering the functions of each court in more detail. Page 12 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law 5.3.2 Supreme Court of the United Kingdom The Supreme Court was created on 1 October 2009 by s 23 of the Constitutional Reform Act 2005 and replaced the Appellate Committee of the House of Lords (often just referred to as ‘the House of Lords’). The Supreme Court is the final court of appeal for all UK civil cases and criminal cases from England, Wales, and Northern Ireland and the Inner House of the Court of Session in Scotland. The Supreme Court consists of twelve judges with a President and a Deputy President. The judges (other than the President and Deputy President) are styled ‘Justices of the Supreme Court’. The Supreme Court does not hear evidence from witnesses but instead considers legal argument and documentary evidence. It is located in Middlesex Guildhall on Parliament Square opposite the Houses of Parliament. 5.3.3 Court of Appeal The Court of Appeal is a single court which is split into two divisions—the Civil Division and the Criminal p. 108 Division. The Court of Appeal does not hear from witnesses but, like the ↵ Supreme Court, considers legal argument and documentary evidence. The majority decision will prevail, so, in practice, an odd number of judges—usually three—sit. In certain cases of major public importance, sometimes five or even seven Lord or Lady Justices of Appeal will sit. Note that, although unlikely in practice, the court is properly constituted even if only one judge sits. 5.3.3.1 Court of Appeal (Criminal Division) The Court of Appeal (Criminal Division), as its name suggests, only deals with appeals. It mainly deals with appeals from the Crown Court against conviction, sentence, or a finding of fact; references made by the Attorney General following an acquittal on indictment under s 36 of the Criminal Justice Act 1972 on a point of law (this is not an appeal by the prosecution as the Court of Appeal’s findings will have no effect on the defendant who will remain acquitted whatever happens); references made by the Attorney General under s 36 of the Criminal Justice Act 1988 against an unduly lenient sentence; cases referred by the Criminal Cases Review Commission under s 9 of the Criminal Appeal Act 1995 where there has been a possible miscarriage of justice; and applications for leave (permission) to appeal to the Supreme Court. It is comprised of Lord and Lady Justices of Appeal. Its head is the Lord Chief Justice. 5.3.3.2 Court of Appeal (Civil Division) The Court of Appeal (Civil Division) deals with appeals from the three divisions of the High Court, the County Court, and certain tribunals (e.g. the Upper Tribunal and the Employment Appeal Tribunal). It is also comprised of Lord and Lady Justices of Appeal. Its head is the Master of the Rolls. Page 13 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law 5.3.4 High Court The High Court is one court which is divided into three ‘divisions’ for administrative purposes. These are the King’s Bench Division, Chancery Division, and Family Division. It is staffed by High Court judges (also known as puisne judges—from the Old French, pronounced ‘puny’ and meaning ‘inferior in rank’). The head of the King’s Bench Division is the Lord Chief Justice. The nominal head of the Chancery Division is the Lord Chancellor (who never actually sits in the Chancery Division); in effect it is headed by the Vice-Chancellor. The Family Division is headed by the President of the Family Division. None of the Divisions has any practically significant criminal jurisdiction at first instance. 5.3.4.1 King’s Bench Division The King’s Bench Division hears criminal appeals from magistrates’ courts by way of case stated and from the Crown Court sitting without a jury (e.g. a Crown Court hearing an appeal from the magistrates’ court). Its civil jurisdiction includes contractual disputes and actions in tort (with no upper limit on value) at first instance and appeals from the County Court. It also has notable specialist subdivisions: the Administrative Court (which deals with applications for judicial review); the Admiralty Court (dealing with shipping and aircraft); the Technology and Construction Court (which also deals with certain other types of complex civil litigation); the Election Court (which deals with disputed elections); and the Commercial Court (covering banking, insurance, and finance). p. 109 5.3.4.2 Judicial review If an individual feels they have been unfairly affected by the decision of a public body (or a private body exercising a public function), then they may be able to bring a claim for judicial review. This is a procedure by which, on the application of an individual, a court decides whether a public body (or a private body exercising a public function) has acted lawfully in making a decision. It is available to applicants with 7 ‘sufficient interest’ in the matter to which the application relates. The most common classification of grounds of challenge in judicial review is that of Lord Diplock who defined three broad (and arbitrary) headings: illegality, irrationality, and procedural impropriety 8 (unfairness). Illegality was defined as failure to recognize and give effect to the law which regulates a decision-making power: in other words, public bodies are given powers by law and they cannot ignore the limits of the powers given to them. This idea of ‘going too far’ is sometimes referred to by the Latin term ultra vires (meaning ‘outside its authority’). Irrationality was described as a decision that was ‘so outrageous in its defiance of logic or accepted moral standards that no reasonable decision-maker could have arrived at it’: in other words, every other reasonable decision-making body faced with the same evidence would have decided otherwise. Procedural impropriety (unfairness) covers failure to follow any statutory procedural requirements set out as part of the decision-making process as well as the common law rules of natural justice, such as bias, failure to give a fair hearing, and not giving sufficient reasons for a decision. Page 14 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law It is also unlawful for a public body to act in a way which is incompatible with the European Convention on 9 Human Rights. The victim of the breach of Convention rights relating to the actions of a public body (or a private body exercising a public function) may also challenge by judicial review. In reaching its decision, the court will consider: What Article was breached? How was it breached? Was the interference with the right prescribed by law? Was the interference necessary in a democratic society or in pursuit of a legitimate aim? Was the interference proportional? 5.3.4.3 Chancery Division The Chancery Division deals with business and property-related disputes, competition, general Chancery claims, patents claims, intellectual property claims (patents, trade marks, and copyright), company law claims, insolvency claims, trust claims, probate claims, and appeals from the County Court on matters such as bankruptcy. It includes the Insolvency List, the Companies List, the Intellectual Property Enterprise Court, and the Patents Court. 5.3.4.4 Family Division The Family Division has the inherent jurisdiction to deal with cases where a child who is the subject of legal proceedings must be protected. The most common type of case is where a child is made a ‘ward of the court’. It also handles cases of international child abduction, forced marriage, female genital mutilation, and applications for financial relief where a divorce has taken place outside England and Wales. p. 110 5.3.5 Crown Court The Crown Court deals with trials on indictment (by jury); cases where the magistrates have declined jurisdiction before trial; offences triable either way where the defendant has elected for trial by jury in the Crown Court; and referrals for sentence from the magistrates’ court where the magistrates consider that their sentencing powers are inadequate for the case in question (by virtue of the statutory limit on sentences in magistrates’ courts which currently include unlimited fines, bans, community orders and up to twelve months’ custody, depending on the offence). The Crown Court hears appeals from defendants against conviction or sentence or both in the magistrates’ court. Its first instance civil jurisdiction is limited so much as to be practically insignificant. It is staffed by High Court judges, circuit judges, deputy circuit judges (part-time), recorders (part-time), assistant recorders (part-time), and a jury (for trials). Page 15 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law 5.3.6 County Court The County Court deals with all but the most complicated civil law matters, such as: Claims for repayment of debt Claims for compensation in personal injury cases Cases involving breach of contract concerning goods or property Administration of wills Bankruptcy proceedings Housing disputes, including mortgage and council rent arrears and repossessions. Section 17(1) of the Crime and Courts Act 2013 removed the former geographical jurisdictional boundaries of county courts and established ‘the County Court’ with effect from 22 April 2014. The single County Court consists of an entirely civil jurisdiction: unlike its predecessor it does not have a family jurisdiction. Family proceedings are heard in the Family Court, which was established by s 17(2) of the 2013 Act. The County Court has a national jurisdiction with unlimited financial jurisdiction and its business takes place at County Court hearing centres. These hearing centres correspond to the locations of the former 200+ county courts. County Court proceedings can be submitted to the court in person, by post, or online (for some matters) through the County Court Bulk Centre. Cases are normally heard at the centre having jurisdiction over the area where the defendant lives. The County Court Money Claims Centre (CCMCC) deals with claims for money only. If at any stage an oral hearing is required the claim will be sent to a local County Court hearing centre. There are three ‘tracks’ which a case may take through the County Court. The small claims track (often referred to incorrectly as the ‘small claims court’) is the usual track for: Claims with a financial value of not more than £10,000. Personal injury claims with a financial value of not more than £10,000 where the value of any claim for damages for personal injuries is: £5,000 in a claim arising from a road traffic accident (with some exceptions in which it is £1,000) £1500 (from 6 April 2022) in any other claim for personal injuries. Claims by residential tenants for landlords to carry out repairs or works where the works are estimated to cost no more than £1,000 and the financial value of any other claims is not more than £1,000. p. 111 ↵ The fast track is the usual track for any claim worth between £10,000 and £25,000 and which is likely to be tried in no more than one day. Claims in the fast track also limit oral evidence at trial to two expert fields, with one expert per party in relation to each field. Finally, the multi-track hears any claim which Page 16 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 5. Case law falls outside the small claims track or the fast track. Therefore, the multi-track is generally used for higher-value, more complex claims (with a value of over £25,000). Most commercial cases fall within the multi-track. County Court staff comprise circuit judges, deputy circuit judges, district judges (formerly known as registrars), and deputy district judges (part-time). 5.3.7 Family Court The single Family Court came into existence on 22 April 2014, created by s 17(2) of the Crime and Courts Act 2013. The Family Court has jurisdiction in all family proceedings (with some exceptions) and so there is no longer a separate family jurisdiction in the magistrates’ courts or the County Court. The Family Court is a national court and can sit anywhere. In practice it generally sits at the same County Court hearing centres and magistrates’ courts where family cases were formerly heard. 5.3.8 Magistrates’ courts All criminal proceedings begin in the magistrates’ courts and well over 90 per cent end there. The main types of hearing are the trial of summary offences; applications for bail; issue of summonses and warrants for arrest or search; Youth Courts for defendants under the age of 18; plea before venue hearings; and committal proceedings for Crown Court trial or sentence. Magistrates’ courts also have an extensive civil jurisdiction, much of which concerns local Government matters. The main categories of civil hearing include: highways, public health, licensing, and recovery of civil debts such as National Insurance contributions and income tax. Magistrates’ court proceedings are heard by either Justices of the Peace (magistrates), usually sitting as a bench of three, or a single district judge (magistrates’ courts) working on a full-time salaried basis. 5.3.9 The Judicial Committee of the Privy Council The Judicial Committee of the Privy Council is the court of final appeal for UK overseas territories and Crown dependencies, and for Commonwealth countries that have retained the appeal to the King in Council or, in the case of Republics, to the Judicial Committee. When we consider the doctrine of judicial precedent in section 7.3, you will see that decisions of the Privy Council are not binding on any domestic court, but are highly persuasive. This is a result of the high judicial standing of its members. It comprises at least three, and usually five, of the following: Justices of the UK Supreme Court Members of the former judicial committee of the House of Lords Privy Councillors who are or were judges of the Court of Appeal Page 17 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Privy Councillors who are judges of certain courts in Commonwealth nations. The Judicial Committee of the Privy Council hears appeals from many current and former Commonwealth countries, as well as the UK’s overseas territories, Crown dependencies, and military sovereign base areas. p. 112 It also hears very occasional appeals from a number of ancient ↵ and ecclesiastical courts. These include the Church Commissioners, the Arches Court of Canterbury, the Chancery Court of York, and the Court of Admiralty of the Cinque Ports. 5.3.10 Tribunals It is usual to think of legal disputes being settled in the courts. However, there are many other mechanisms for resolution, including tribunals. These are an alternative to using the ‘traditional’ courts and their use is, in fact, mandatory in certain types of disputes. Many disputes are dealt with in the network of administrative tribunals that started to evolve to deal with a particular area of specialism such as employment, rent, immigration, and mental health. Tribunals were seen as a more effective way of dealing with specialist disputes in such areas as they had particular expertise to deal with the intricacies of the law and a better understanding of the types of disputes that would come before them. They adopted less formal procedures to hear and decide cases more quickly: this, in turn, helped to minimize costs. The lack of formality also meant that, in theory at least, there would be less need for legal representation. The function of tribunals was first reviewed in depth by the Franks Committee in 1957. It described them as: [Not] ordinary courts, but neither … appendages of Government Departments … Tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. The Franks Committee Report made a number of recommendations for the reform of the tribunal system that would ensure that it had three key characteristics: Fairness Openness Impartiality. It also listed the strengths of the tribunal system as cheapness, accessibility, freedom from technicality, expedition (being able to deal with cases relatively quickly, at least compared to the court system), and expert knowledge of their own area of jurisdiction. Its recommendations were implemented by the Tribunals and Inquiries Act 1958. Later changes were also introduced by the Tribunals and Inquiries Act 1992. Page 18 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law The number of tribunals grew as new tribunals were introduced by legislation to deal with particular disputes. For example, the Mental Health Act 1983 created the Mental Health Review Tribunal, with responsibility for hearing applications from people who had been detained under the Act against their wishes. Each tribunal was operating under the rules stipulated by the particular piece of legislation that created it. For example, there were no uniform rules concerning the availability of appeals against tribunal decisions or the procedures by which an appeal could be brought. These concerns of lack of consistency were addressed by Sir Andrew Leggatt who headed a review of the tribunal system. The brief of this review was to recommend a system that was ‘coherent, professional, cost effective and user-friendly’ and which would also be compatible with the Convention right to a fair trial under Article 6 ECHR. The resulting report Tribunals for Users: One System, One Service recommended that the tribunal system should be unified into a single administrative body. The recommendations of the Leggatt Report were enacted by the Tribunals, Courts and Enforcement Act 2007. p. 113 ↵ The functions of the majority of existing tribunals have been transferred to the new First-tier Tribunal created by s 3 of the Act. This First-tier Tribunal is divided into a number of chambers, each of which has its own area of specialism as shown in Table 5.2. Table 5.2 The Chambers of the First-tier Tribunal General Regulatory Chamber Charities Community right to bid Environment Electronic communications, postal services, and network and Information systems Estate agents Exam boards Food safety Gambling Immigration services Information rights Pensions regulation Standards and licensing, including letting and managing agents, secondary ticketing, consultant lobbyists, copyright licensing, and conveyancing Transport, including driving instructors Welfare of animals Individual electoral registration Social Entitlement Chamber Asylum support Criminal injuries compensation Social security and child support Page 19 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Health, Education, and Care standards Social Care Chamber Mental health Special educational needs and disability Primary health lists War Pensions and Armed War pensions and armed forces compensation Forces Compensation Chamber Tax Chamber Appeals against some decisions made by HMRC relating to: Income Tax PAYE tax Corporation Tax Capital Gains Tax National Insurance Contributions Statutory Sick Pay Statutory Maternity Pay Inheritance Tax VAT Excise duty Customs duty The First-tier Tribunal Tax Chamber also handles some appeals relating to goods seized by either HM Revenue and Customs or Border Force and against some decisions made by the National Crime Agency. Immigration and Asylum Permission to stay in the UK Chamber Deportation from the UK Entry clearance to the UK Human rights applications The First-tier Immigration and Asylum Chamber also handles applications for immigration bail from people being held by the Home Office on immigration matters Property Residential property Land registration p. 114 ↵ It is envisaged that further tribunals will be added to the new structure as part of a phased implementation programme. Page 20 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law Section 11 of the Act created an Upper Tribunal, which provides the normal route of appeal from decisions made by the First-tier Tribunal on a point of law. However, some decisions (such as decisions relating to asylum support and criminal injuries compensation) do not carry a right to appeal and can therefore only be challenged via judicial review. Some cases will commence directly in the Upper Tribunal. The Upper Tribunal is divided into four chambers: Administrative Appeals Chamber Tax and Chancery Chamber Lands Chamber Immigration and Asylum Chamber. Section 13 of the Act provides that a route of appeal lies from decisions of the Chambers of the Upper Tribunal to the Court of Appeal (Civil Division) on a point of law. See Figure 5.3 for an overview of the general structure. Figure 5.3 The structure of the tribunal system p. 115 ↵ Section 44 of the Tribunals, Courts and Enforcement Act 2007 created the Administrative Justice and Tribunals Council. This was a public body with responsibility for supervising and regulating the administrative justice system. In relation to the tribunal system, the Council had to review and report on the operation of the tribunals under its supervision and scrutinize legislation relating to tribunals. Page 21 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 5. Case law However, it was abolished in August 2013. Current oversight is provided by the Administrative Justice Council which is the only body with oversight of the whole of the administrative justice system in the UK, advising government, including the devolved governments, and the judiciary on the development of that system. 5.4 The European Court of Human Rights 5.4.1 A brief history The European Convention on Human Rights and Fundamental Freedoms is a creation of the Council of Europe although it is, at least in part, based upon the 1948 United Nations Declaration of Human Rights. The Council of Europe was formed in 1949, shortly after the end of the Second World War, with its aim of international cooperation and the prevention of the kinds of widespread atrocious violations of human rights which had occurred during the war. The European Convention on Human Rights was signed in Rome in 1950, ratified by the UK a year later, and came into force in 1953. The European Court of Human Rights was established in 1959 as a final avenue of complaint for claimants who had exhausted the remedies available to them in their domestic courts for alleged breaches of Convention rights. At the same time, the European Commission of Human Rights was also established. The Commission’s role was to decrease the caseload of the European Court of Human Rights by filtering out some cases and attempting to resolve others by conciliation. The individual’s right to petition the European Court of Human Rights became available to UK citizens in 1966. The European Court of Human Rights and the European Commission of Human Rights were abolished on 31 October 1998 and replaced by a single Court of Human Rights. Questions of admissibility (formerly dealt with by the Commission) are now dealt with by its judges sitting in committee. It is based in Strasbourg. 5.4.2 The Human Rights Act 1998 and case law The Convention is an international treaty that binds the states which sign it to certain standards of behaviour towards individuals. However, the Treaty was not enacted as part of the law of England and Wales until the Human Rights Act 1998 which received Royal Assent on 9 November 1998 and came into force on 2 October 2000. This means that individuals may rely on (most) Convention rights in domestic proceedings. Section 2 of the Human Rights Act 1998 requires courts to take into account any previous decision of the European Court of Human Rights. This effectively allows the overruling of any previous English case authority that was in conflict with a previous decision of the European Court of Human Rights. This enables the courts to build a new body of case law where human rights issues are raised. The impact of the Human Rights Act 1998 on the doctrine of judicial precedent is dealt with in section 7.4. Section 6.3 describes how to find decisions of the European Court of Human Rights. Page 22 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law p. 116 Chapter Summary Common law and equity The common law evolved following the Norman Conquest in 1066 It emerged from a combination of local custom and case law The common law became very bureaucratic in operation, costly, and time-consuming The common law did not recognize certain rights Equitable rights and remedies became available from the Court of Chancery Where there was conflict between law and equity, equity prevailed The administration of common law and equity was fused by the Supreme Court of Judicature Acts 1873 and 1875 Equity has its own system of equitable maxims (doctrines), rights, and remedies including injunctions, specific performance, and rescission Custom Local customs can be enforced as exceptions to the common law In order to enforce a custom, it is necessary to show that it meets a very stringent set of conditions Custom is consequently very difficult to prove Custom is typically used in connection with disputes over land The courts, their personnel, and their jurisdictions Criminal courts determine guilt or innocence of defendants and dispense punishment to convicted offenders Civil courts primarily deal with the resolution of disputes between individuals Trial courts hear cases at first instance—before any appeals Appellate courts consider the application of legal principles to cases that have already been heard at first instance The Supreme Court of the United Kingdom is the final court of appeal for all UK civil cases and criminal cases from England, Wales, and Northern Ireland The Court of Appeal is divided into Civil and Criminal Divisions The High Court is divided into three divisions for administrative purposes—the King’s Bench, Family, and Chancery Divisions The Crown Court primarily deals with trial by jury in criminal cases Page 23 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025  5. Case law The County Court deals with all but the most complicated civil law matters The Family Court deals with almost all family matters All criminal proceedings begin in the magistrates’ court The Privy Council hears appeals from certain Commonwealth countries and UK overseas territories, appeals in professional disciplinary cases, and ecclesiastical appeals Tribunals are specialist bodies established with the aim of providing quicker, cheaper, and more accessible routes to justice p. 117 The European Court of Human Rights Not to be confused with the European Court of Justice The European Court of Human Rights is based in Strasbourg The European Convention on Human Rights was signed in Rome in 1950, ratified by the UK in 1951, and came into force in 1953 The individual’s right to petition the European Court of Human Rights became available to UK citizens in 1966 The Human Rights Act 1998 came into force on 2 October 2000. This means that individuals may rely on (most) Convention rights in domestic proceedings Section 2 of the Human Rights Act 1998 requires courts to take into account any previous decision of the European Court of Human Rights This enables the courts to build a new body of case law where human rights issues are raised Further Reading You can find a consideration of the creation of the UK Supreme Court in J Lennan, ‘A Supreme Court for the United Kingdom: A Note on Early Days’ (2010) 29 Civil Justice Quarterly 139. A brief discussion of the single Family Court can be found in H Johns, ‘The New Family Court’ (2014) Family Law 110. The discussion of custom as a source of law is covered very briefly in this chapter. If you would like to know more, then see EK Braybrooke, ‘Custom as a Source of English Law’ (1951) 50 Michigan Law Review 70. Notes 1. Although actions for recovery of land, known as ‘real actions’, did enable successful claimants to recover their land at common law. 2. Courtney v Glanvil (1615) Croke Jac 343; 79 ER 294. Page 24 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 5. Case law 3. Earl of Oxford’s Case (1615) 1 Rep Ch 1. 4. Senior Courts Act 1981 s 49. 5. QB 62 (CA). 6. 1 WLR 1504 (DC). 7. Senior Courts Act 1981 s 31(3). 8. Council for Civil Service Unions v Minister for Civil Service 1 AC 374 (HL). 9. Human Rights Act 1998 s 6. © Emily Finch and Stefan Fafinski 2023 Find This Title In the OUP print catalogue Page 25 of 25 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025