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This summary details all of the relevant information needed on the english legal institutions and methods law module. All notes are grade 2:1 and above.
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English Legal Institutions and MethodsLecture 1 - Common Law and Equity
Maxims of Equity are the rules that you have to play if you want to use equity. This is justice
or fairness. Such as coming to court with clean hands. This means that you have to come to
court ready to play fairly. These help govern the way Equity operates.
They include:
Equity will not suffer a wrong to be without a remedy.
Equity follows the law.
He who comes to Equity must come with clean hands.
Delay (laches) defeats Equity.
Equity looks to the intent rather than the form
Equally is equity.
Lecture 2 - Precedent
The kings judges only followed other cases that they were aware about. This is a good idea
and is known as ‘stare decisis’. This should be encouraged in the legal system.
Within the period of around 300 years, three key things happened, turning an informal
‘stare decisis’ into a formal system of ‘stare decisis’. This formalizes the entire system.
What is needed to move from ’Stare Decisis’? Following previous decisions to a formal
system of precedent?
Three key developments led to the creation of a system of precedent:
⁃ The development of printing.
⁃ Creation of the Incorporated Council of Law Reporting - created a ranking for law
reports.
⁃ The Judicature Acts 1873-75 - created a fused court structure (between old common
law courts and courts of chancery) and a hierarchy of courts.
The Development of Printing
The problem was that judges could not always talk to other judges. This then meant that all
judges decisions could be printed and therefore this made them available to everybody. This
gave us access to the judges decisions. The people who wrote up the judgements were not
the judges themselves. The judges used to pay people to go into court to write the
judgement or the judges decisions for them.
Espinasse was well known for writing up judgements. Are these judgements accurate?
Creation of the Incorporated Council of Law Reporting
In 1875 this body was set up. This body still exists today. This checks the accuracy of the law
reports that are given to judges and other independent bodies. This shows that we have a
way of getting the reports out to the public and also makes sure that they are accurate
reports. This then gets sent to a judge and is read over to make sure that all documents are
accurate.
e.g. Donoghue v Stevenson (snail in the bottle) The manufacture owed a duty of care to the
, person who consumed the product. What mattered was who consumed it.
1. The Law Reports (Incorporated Council of Law Reporting for England and Wales -
ICLR). Published monthly, checked by the judges before publication and contain the
argument of counsel. They are deemed therefore to be the most authoritative. SEE: Lord
Woold CJ Practice direction (judgements: Form citiation-(Supreme Court) (2001) 1WLR 194)
If the case is published by the ICLR in the law reports serious NO other citation may be used.
2. The Weekly Law Reports (Publishers:ICLR) Judges do not revise these publication,
and the representations of counsel are not included. They are in 3 volumes according to
their importantance. Volume 1 cases are unlikely to be reported in the Law Reports. Vols 2
and 3 are intended for re-publication.
3. The All England Reports (Publishers: LexiNexis Butterworths) These are normally
revised by judges but counsels arguments not included.
4. All other law reports: the specialist series, such as Criminal law reports (Crim lR),
Industrial Relations Reports, (IRL) Justice of the Peace reports (JP), etc.
The Judicature Acts 1873-75
These acts bring Equity and the Common Law together. The Common law remedy is
damages and the equitable remedy is specific performance and an injunction. Specific
performance is where you go to court and you ask the court to make someone do what they
agreed to do. This means that you can ask the court for an order for specific performance to
make the person do what they should be doing. An injunction is the opposite of this. This is
where you go to court and ask the person to stop doing what they are supposed to do. You
can only ask for an equitable remedy if you have behaved remedy. Therefore you can only
get them if you have behaved equitably. These can also be referred to as discretionary
remedies.
These Judicature Acts created the hierarchy of courts. Otherwise known as a court
structure.
The English Legal System Civil Court Structure
Separation of Power - Montesquieu
Keeping law and politics separate. This did not work as the judges were within the House of
Lords, the political side, so the judges were given the chance to either be a Lord or a Lady
which gave them the right to sit in the House of Lords.
Civil Courts
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