Everything you need to know for the introduction to common law course- cases are integrated into the content to make it easier to comprehend. I was awarded a grade 10 on the exam :)
‘Common Law’ [3 meanings]
1. Broadest meaning: Legal system of England/USA vs Continental legal system
-No codification vs codification
2. Best meaning: Case Law in England 1250-1500
-Common law: developed & took place of local law
-Equity: developed after 1500
3. Case Law vs Statutory Law
-Legal system based on case law
Origin of Common Law
Legal development up to 1150
1066: William ‘The Conqueror’ comes from Normandy to England
1. Found legal diversity: local courts apply local customary law
2. Established strong central govt: No immediate changes to local customary law
Development of Curia Regis [Kings Council]
Court of Noblemen ≠ Court of Law
-Administered all kings business [financial, legislative, judicial]
-Branched off into other institutions [Common Law Courts, Chancery, Parliament]
Legal development from 1150
William & his successors developed the common law
Development of common law courts
-Curia Regis branched off
-Centralised: applied law throughout the country
Step 1: Henry II & Circuit judges/juries
1. General Eyre’s
-Representatives of king sent from Westminster
-Travelled around a specific fixed route [circuit]
-Enforce local customary law in local courts in the name of the king
2. Courts of Assizes [Juries]
-Local sheriff received an order to assemble a jury to decide on the facts
-Judge arrived and had to apply the law to these facts
Consequence of this system
1. Judges move not courts
2. Division of Labour
-Few judges
-Judges decide law & jury facts
Step 2: Magna Carta [1215]
-Fixed location: Claimants and defendants must be able to travel to address their disputes
Step 3: Common Law Courts of Westminster
Common law judges apply common law
1. Court of Exchequer
-Taxes [disputes connected with royal revenue]
2. Courts of Kings Bench
-Public law cases relevant to the king [disputes between subjects and king]
3. Court of Common Pleas
Private law cases not relevant to the king [disputes between the king’s subjects]
Development of common law 1250-1500
, 1. Foundation: Local Customary Law
-Legal unity developed in centralised Common Law Courts
A. Apply the commonality
-‘General Eyres’: acquainted with all the different local customs
-Smooth out the differences in the common law courts
B. Declaratory doctrine of common law
- Judge is not making law but declaring a pre-existing custom
2. Characteristic: Limited jurisdiction
-Importance of procedure: ‘Ubi remedium, ibi ius’
-Where there is a remedy [writ] to go before common-law judge, there is law
-The common law developed out of very specific cases granted a writ
3. Stare Decisis: ‘Let the decision stand’
-New legal problem & new rule formed: rule is followed by all other common law judges
4. Division of labour
Local Judges: Small cases common law courts don’t accept
Jury: Establish facts so judges only apply the law
Statute of Westminster [1285]: Nisi Prius Rule [‘if not earlier’]
-Only bring cases to Westminster that have not been decided locally
Procedure
Local courts
Decided by: Local judge or visiting Eyre
Procedure: General access, No writ
Common Law Courts
Decided by: Common Law judge
Procedure: No general access, need writ
1. Writ system
-‘Royal order of the king’: issued by Lord Chancellor
Register of writs
1. Writ of debt
2. Writ of covenant [contracts]
3. Writ of trespass [Violence & weapons against the peace of the king]
2. Having case heard
-Claimant: selects a writ he considers fits the facts of the case
-Lord Chancellor: grants permission by issuing the writ
-Local Sheriff: receives the writ and secures the defendant/ assembles a jury that knows facts
-Common Law Judge: can deny action if writ does not fit the facts
Development of Equity [1500]
1. Foundation: Lord Chancellors Conscience
2. Characteristics: Wider jurisdiction
-Start a new case: do not need a writ to go before Lord Chancellor
-Two scenarios
a. No Common Law Court available: Lord Chancellor decides
b. Not satisfied by decision of Common Law Court: Lord Chancellor revises decision
, 3. Stare Decisis: ‘Let the decision stand’
-New legal problem & new rule formed: rule is followed by all other common law judges
Equity Remedies Common Law
Problem I: Writs
Inflexibility
Provisions of Oxford [1258]
-Act of Parliament: Prohibited Lord Chancellor issuing new writs
-Parliament didn’t want king to steer development of common law
-New legal problem: Lord Chancellor could not issue a new writ
Statute of Westminster [1285]
-Act of Parliament: New writs could be issued only ‘in consimili casu’ [‘in similar cases’] by analogy
-Resulted in many strange constructions of writs
Bukton v Tounesende [1348]
Statute of Westminster: strange constructions of writs
Facts:
-Ferryman agreed to transport sheep across river
-Ferryman overloaded boat with sheep
-Boat sank and sheep drowned
-Owner of sheep couldn’t use writ of covenant since they didn’t make a deed [contract in writing]
Result:
-Lord Chancellor issued a writ of ‘trespass on the case’ by analogy: tort of breach of contract
-Writ of trespass because ferryman adopted & violated a public duty to transport sheep safely
Decline of local courts
Division of labour: Local courts do not need a writ
Local courts gradually supressed: No writ, no access
Procedural hardship
Claimant: selects writ that doesn’t fit facts of case
Common law judge: denies action: need to apply for new writ which is costly in time & money
Solution I: No writs for Court of Chancery
Subpoena: summons issued by the Lord Chancellor
-Did not state cause of action
-Told recipient to appear before the Lord Chancellor so he can ask questions
Problem II: Limited Common Law Remedies
Only pecuniary: monetary damages
You couldn’t ask for:
1. Trust agreements to be valid against third parties
2. Injunction: Prohibition to do something
3. Specific performance: Getting what you agreed upon
Solution II: New Remedies in Court of Chancery
1. Trust agreement valid against third parties
-Trust agreement: transferring ownership of land to somebody who promises to keep ownership for
you
-Common law: trustee could sell the land to somebody else because they are not part of the
agreement
-Lord Chancellor: Forces third party to respect trust agreement
2. Injunction
-Lord Chancellor: Stops person from carrying out a wrong
3. Specific performance
, -Lord Chancellor: Compel a person to perform his obligations
Relationship between Common Law & Equity
1. Parallel systems
-Both case law systems
-BUT: Sometimes cover different fields of law
2. Equity is complementary to the common law
-Common law is the basis
-Fills in gaps of the common law regarding remedies
3. Conflict is possible
Trusts Agreements
-Common Law Court: third party wins
-Equity Court: third party loses
Earl of Oxford [1615]
Equity will prevail over common law
Ratio Decidendi:
-Equity is not an appeal system
-Start a new case and decision before Common Law Court will remain unexecuted
Reforms of 19th century to Westminster Court System
Problem I: Uncertain Jurisdictions
Not always clear which Westminster court to go to: Common Law Court or Court of Chancery
Wrong Court: case thrown & start again: costly in time and money
Solution I: Fusion of Courts into one court with one system of appeal
Judicature Acts [1873-1875]
All Westminster Courts fused into The High Court of Justice
-No uncertain jurisdiction
-Different divisions: Case referred to right division
1. Queens Bench Division
2. Chancery Division
3. Family Division
Introduced Court of Appeal
-One for all divisions
Introduced Decentralized Courts
Concurrent jurisdiction: part of the High Court of Justice
Referrals: to High Court of Justice if complicated case
Appeals: often go straight to CoA
High Court judges: partake in sessions of the decentralized courts
Crown Court [public law: serious crimes]Referred to the QBD
Magistrates Court [Public law: petty crimes] Referred to the QBD
County Court [Private Law]
Family Court [Private Law] Referred to the Family Division
Appellate Jurisdiction Act [1876]
Introduced HoL as CoA
-Appeal Court for important political cases
Constitutional Reform Act [2009]
-Supreme Court of the United Kingdom replaces HoL CoA
, -Supreme Court only accepts very important cases from the High Court of Justice
Solution II, Problem I: All courts apply both common law and equity law
Judicature Acts [1873-1875]
Combined administration
-Did not combine common law & equity law but their administration within courts
In principle remains the same
-QBD: still applies common law
- Court of Chancery: still applies equity law
Remedies
-All courts can award common law remedies & equitable remedies
Problem II: Procedural Hardship
Common Law Court: Need a writ
Court of Chancery: Slow
Solution II: Writ system abolished in High Court of Justice
Need privately issued ‘writ of summons’ from solicitor not Lord Chancellor
Asks opponent to appear before court
Competences of the Different Courts
The overall system:
1. One court
2. One system of appeal
3. System of referral between court
Referral ≠ appeal
Higher Court
HoL [now SC]
CoA
Senior Courts
High Court of Justice
QBDCommon law cases
Chancery DivisionEquity cases
Family DivisionDisputed Divorces
Crown Courts Serious crimes with Jury system
Inferior Courts
Magistrates CourtsPetty crimes
County CourtsTort & contract
Family CourtUndisputed divorces
Appeal in English Law
1. 13th century: Centralised Westminster Courtsno appeal
-Appeal not needed: courts of first and last instance
-Few judges discuss cases over dinner
2. 19th century: Decentralised local courtsCoA
-Appeal is needed: local courts make decisions in first instance
Appeal is still not a right, you need ‘leave to appeal’
, -Court you are appealing from gives leave
-CoA or SC need to accept case
Stare Decisis vs Doctrine of Binding Precedence
Until 1850: Principle of
Stare Decisis
Less legal certainty
Foundation: General principle
-Judges stick to previous decisions
-Precedence is persuasive not formally binding
-Judge can deviate from previous decisions: common law developed
Consequence
No comprehensive case reporting
-No system of appeal: cases don’t need to be published
-Judges discuss cases over dinner
a. Yearbooks [1272-1535]
Purpose: Educating law students & legal practitioners by
discussing cases
Use today? Cases are not reported properly: use is limited
b. Private reporting [1535-1865]
Purpose: More professional than yearbooks: practitioners and
judges discussing cases
Use today? ‘Books of authority’: used as precedence
After 1850: Official Doctrine
Of Binding Precedence
More legal certainty
Foundation: Judicial self-binding doctrine [common law]
-Next judge is officially bound by the previous decision
-Precedence is formally binding
-Only the legislator can change the law
Adopted with retroactive effect
- All old cases are binding precedence
-‘The older the case, the better’: start with oldest cases
Example: Pinnels Case [1602]
-Consideration is retroactively required to conclude a contract
Consequence
Official Systematic Law Reporting
-System of appeal: cases need to be published
1865: Incorporated Law Reporting Council for England and Wales
-Lawyers produce an official report on the case
-Binding precedence even if not officially reported
Doctrine of Binding Precedence
Referring to cases:
Cases officially reported by Lawyer
Cases not officially reported by lawyer
Old cases in archives
× BUT: Foreign casesprecedence is persuasive not formally binding
Which courts are bound by which decisions?
, Supreme Court of the United Kingdom
A. London Street Tramways v London County Council [1898]
Doctrine of binding precedence & HoL [SC]
Ratio Decidendi:
-HoL [SC] is bound by own previous decisions
B. Practise Statement [1966]
-HoL [SC] is not bound by own decisions
-BUT only change direction rarely
Court of Appeal
Young v Bristol Aeroplane [1944]
Doctrine of binding precedence & CoA
Ratio Decidendi:
-Bound by own previous decisions and previous decisions of HoL [SC]
-Exceptions to own previous decisions:
1. Decision is given per incuriam
2. Conflicting decisions of its ownChooses which to follow
3. Own decision conflicts with HoL decision Bound to follow
decision of HoL
Senior Courts: High Court of Justice/Crown Court
-Bound by decisions of higher courts [HoL/CoA]
-Bound by own decisions if given in divisional court
Divisional Court
-At least two sitting judges in court
Froom v Butscher [1979]
Doctrine of binding precedence & senior court
Facts:
-If not wearing a seatbelt made you liable for contributory
negligence
Ratio Decidendi:
-Decision not given in divisional court & so not binding on
senior court
Inferior Courts: Magistrates Courts, County Courts and Family Courts
-Bound by decisions of all higher courts
HoL/CoA
High Court/Crown Court: even when decision is given by individual
judge
-Not bound by own decisions
Tribunals
-Bound by decisions of all higher courts
HoL/CoA
High Court/Crown Court: even when decision is given by individual
judge
-Not bound by own decisions
When is precedence not binding on judge?
1. Overruled by a higher court
-Lawyer proves the binding precedence was overruled
-Overruling ≠ reversing
Overruling: Different cases
-Decision A decided by a lower court in one case [eg High Court]
-Decision B decided by higher court in different case [eg CoA]
-Previous binding precedence is overruled
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