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Summary Introduction to law
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- Institution
In this document I covered: - Defences to a breach of contract - vitiating factors. - Law of Tort - Breach of the duty of care - Occupiers liability - Law and nuisance
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WEEK 1 – Introduction to Law:Why is law knowledge important?
- Undertaking professional construction/ property work (Smith v Eric S Bush 1979) -mortgage
valuation.
- Taking instructions contracts (Gibson v Manchester City Council 1979) Housing sale.
- Exercising care when carrying out work TORT (Caparo v Dickman 1990)
Law – The system of rules which a particular country or community recognises as regulating the
actions of its members and which may enforce by imposition of penalties. The penalty could be
imprisonment or a fine.
Rules of law:
The principles encompass the requirements of guiding the individuals behaviour and minimizing the
danger that results from the exercise of discretionary power in an arbitrary fashion.
- Laws are retroactive. Laws can be proactive, but they are classed as retroactive. Parliament
makes the law in order to show people how to act. When people violate the act (parking
where you shouldn’t park) this is where imprisonment or a fine.
- Stability or clarity of law-making procedures. – There is a set process when laws are been
made. If the law is made not following this process this will make it invalid. Laws should be
stable and not changed too frequently as a lack of awareness prevents individuals from
following the law.
- Independence of judiciary. The court system is independent from the government. ‘Check and
balance’. They don’t interfere with each other activities but if one has done a mistake the
other will check and put the mistake right. This will go through the process of impeachment
which is the action of calling into question the integrity and validity of the law. Choices are
free from external pressure, so decisions are made independently.
- Right to fair hearing. If a person is accused of a crime the police will investigate. Before the
person is given a penalty we need to go through a fair hearing. An accused is not guilty until
proven guilty as the jurors will not have a pre-set mind of the case. If you do not admit to
been guilty you to a hearing.
- Access to courts. We have access to court. To have a family court you may not be able to go
as this is a personal/ private matter. This access to court means access to the justice which
means if you do not have enough money to pay the solicitor/ barrister to represent you in
court. You have a legal aid who will look at your income and expenses and if they come to
the decision that you can get a free representative this is called access to the justice. A legal
aid will pay for the court fees.
Features of the English Legal system:
Law is a apart of the legal system. There are different types of legal systems.
- Development of Common Law. Common law is derived from judicial decisions instead of
from statutes. English legal systems are made in England which influences other laws which
is also common law which was valued by the commonwealth at one point.
- Doctrine of Supremacy of Parliament (Features of the English Legal system):
- Court Hierarchical status and independence of the Judiciary.
- Doctrine of Precedent
- Sources of law
- Branches of law – Civil law, Common law, customary law, religious law, common and civil.
- Little codification
- Adversarial system of resolving disputes
- European union law.
Common Law:
, - Rules based on custom and on judicial decisions.
- The common law is a rule of the set of rules made by the English to be applied over the
commonwealth which started with Normal Conquest 1066. As we expanded out are rules
were seen on a global scale.
Doctrine of Judicial Precedence:
- The judicial precedence developed under Henry II in the 12 th century as judges’ decisions
became recorded in law reports.
- When the judge decides on the case if the court deciding the case has a similar case in the
future, they need to follow the decision made by the previous case.
- Stare Decisis (stands by the decided). If the court has decided in one case, they must follow
the same principle.
- Principles requires judges to follow ruling of higher courts where case involves similar facts
and issues. When the law court is bound by the decision ruling made by the higher court.
- Ratio Decidendi: Reasoning behind a judge’s ruling. This allows the judge to conclude. The
judge will have to explain what part of the law he used for arriving at his decision which sets
the precedent for later cases.
- Oibetr Dicta: Other parts of judgements.
Exceptions to the rule of precedent:
- Works in a hierarchical system, when the higher court makes a decision, and the lower court
sits down they need to follow the case of the higher court.
- Conflicting previous decisions. Before 1966 the court would follow previous decisions.
- Previous decision conflicting with Supreme Court Decision. In the case of an appeal the
higher court would follow the supreme court instead of the court of appeal.
- Per Incuriam decisions – Decisions made by a mistake which could be an exception.
- Persuasive precedent – A court could be persuaded to follow judicial precedence, but it isn’t
binding.
Parliamentary Sovereignty:
- Nobody is above parliament which is about respecting the principle of the democracy.
- When we elect a prime minister, we are electing them to represent us and the country.
- Essential principle of the UK constitution.
- Parliament supreme legal authority within the UK.
- Courts cannot overrule legislation. Parliament can make and unmake any law.
- Judicial review is when the parliament has made a law which imposes on freedom of speech
so the law would be unconstitutional so then someone can challenge the law the court will
investigate this. If the court finds that this law which is against the constitutional the court
will say that the law is unconstitutional.
- Parliament cannot pass laws that future parliaments cannot change.
R. (on the application of Miller) Vs Prime Minister Cherry V Advocate General for Scotland;
Prime Ministers advice to prorogue for 5 weeks in the period leading up to the date for the UKs
withdrawal from the EU was unlawful.
Had the effect of frustrating or preventing the constitutional role of parliament in holding the
government to account and no reasonable justification had been given for that. Parliament had not
been prorogued.
In this case Boris Johnson tried to suspend the parliament to avoid the issue of the withdrawal of the
EU.
Judicial Independence:
, - Independence of Judiciary is a concept where the judges are free from any fear, favour or
influence (external pressure) so they make the decision independently in accordance with the
law.
- Judges free from improper influence. Improper influence sources include executives,
legislature, individual litigants, pressure groups, the media, self-interest other judges (mainly
senior judges).
- Judges of the high court cannot be removed from office without an address passed by both
houses of parliament. They are immune from the risk of being sued or prosecuted for what
they do in their capacity as a judge.
English Court system:
Queens Bench division: Technology and Construction Court (TCC):
TCC specialists claim court dealing with technically complex cases where a trial by a specialist TCC
judge is desirable.
County Court:
- Jurisdiction is exclusively for civil matters.
- Action in Tort/ contract not exceeding 25K or 50K for personal injury claims.
- Action for the recovery of land.
- Equity jurisdiction
- Disputes under the rent, landlord and tenant and housing acts.
Magistrates’ courts:
- Summary criminal case/ committals to the crown court.
- Simple civil cases (family, youth courts, licensing of betting gaming or liquor).
- Appeals are heard with the Crown Court/ County Court (civil matters).
- Heard by 3 magistrates or District judge without a jury.
Tribunals:
- Hears matters related to: immigration, criminal injuries compensation, social security,
education, employment, child support, pensions, tax and lands.
- Decisions appealed to the appropriate High Court.
Branches of the law:
, - The law is divided into 2 main branches – public and private law.
- The branches often overlap and its only by convention that the branches exist.
Public law: Criminal law: deals with crimes. Constitutional law. Administrative law. International
law
Private law: Contract and commercial law, Tort law, Property law, Inheritance or succession law,
Family law andCorporate law
Codification:
- The collect and systematic arrangement, usually by subject, of the laws of a state or country,
or the statutory provisions, rules, and regulations that govern a specific area or subject of law
or practice.
- Codification denotes the creation of codes, which are compilations of written statutes, rules
and regulations that inform the public of acceptable and unacceptable behaviour.
- Civil law systems based on comprehensive codes were installed in countries such as:
Germany, France, Austria, Switzerland, Italy, Japan and Spain.
- Common law systems based on precedents developed in England, South Africa and Australia.
- Jurisprudence in colonial America was based on the English common law system.
Adversarial system of resolving disputes:
- Parties to a case develop and present their arguments, gather and submit evidence.
- Call and question witnesses and generally control the information presented according to the
law and legal process.
- Parties represented by lawyers who actively present the concerned party’s case.
The European Union:
- The participation of the UK in the EU is a major defining feature of the English Legal system.
- It had introduced a new level of legal authority, fresh laws, novel approaches to regulation
and additional court systems.
- The implications are extensive and profound.
Brexit:
- 3rd Reading of EU (withdrawal agreement|) Bill 2019.
- Legislation needs to be passed 31/1/2020.
- UK exits EU.
- Secure Trade Agreement (Transition period 31st December 2020).
Typical civil dispute:
- Claimant/ Plaintiff – person making the claim.
- Defendant – Person against whom the claim is being made.
- Judge – Makes rulings on points of law made and applies the law to the facts.
- Counsel – Researchers the statutes and case law.
- Appeal – May be possible.
- Standard of proof – balance of probabilities.
Criminal: To charge someone with something, crime, police, prosecution, the accused, the defendant,
theft, to bring a case, to fine.
Civil: Claimant/ Plaintiff, compensation, contract, damages, family law, intellectual property, private
individual, the defendant, to bring a case, to bring an action.
Sources of law: Case law, statute, act of parliament and legislation.
Public civil law: constitutional law, administrative law and revenue law.
Private civil law: law of contract, law of tort, family law.
Legal terms: Contract, treaty, substantive law and procedural law
Litigation: The act or process of bringing or contesting a legal action in court.
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