Lecture notes
Civil Justice System Lecture notes
- Module
- Civil Justice System
- Institution
- University Of Leicester (LE)
Lecture notes of 31 pages for the course Civil Justice System at LE
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Civil Justice Systemth
Lecture 1 - 5 October
Practice essay (WK 14)
Assessed essay (WK 17) – 30% of the mark
Exam worth 70% of mark in Jan 2017
Cases, academic article and judicial speeches – Westlaw, Online and Blackboard.
4 main topics discussed:
The sources of law = where the law comes from
Precedent = stare decisis.
Statutory Interpretation = judges interpret legislation or construe it to apply to the
facts of a case
The people involved in the justice system
Legal professions = solicitors, barristers
Judiciary = how judges are appointed – issue of diversity
The structures through which justice is delivered
Tribunals = deal with disputes between the state and citizens
ADR methods = Alternative dispute resolutions = solve disputes outside of courts
Courts
The basic principles of justice (Fair Trial)
Article 6 of the European courts of Human Rights
Access to justice
WHAT IS THE ENGLISH LEGAL SYSTEM – what does it contain?
, Category 1: Common law v Civil law
a) Common Law jurisdictions:
Precedent – Source of law, case law developed by the courts.
Jury trials – lay members to determine the facts. Jury decides using the facts of the
case – beyond all reasonable doubt (criminal matters) or balance on probabilities (civil
disputes). Magistrates = decide criminal offences sit in groups of 3 who are volunteers
Divided legal profession and professional judges = experienced barristers
Adversarial system = judge takes hands off approach, acts as an empire – lawyers
have the freedom to present their cases (have control)
b) Civil Law jurisdictions:
Codes – general rules which cover all types of cases and disputes
Doctrine of scholars – academics who write books and articles
Career Judges
Inquisitorial approach = judge takes an active role – intervenes, calls the witnesses
Category 2: Common law and equity
Law of equity emerged in 14th century because of rigidity of common law, and soon
developed its own jurisdiction and principles and own court = court of chancery.
The Judicature acts 19th century untied the 2 systems and established that common
law remedies are available as of right while remedies in equity are discretionary =
include specific performance, injunction (request the court to stop somebody from
doing something that breaches the law), estoppel (one party relies on a promise made
by another party after a contract had been formed)
Category 3: Common law and Statute
Common law = developed from previous cases i.e. from the decisions of superior
court.
Statutes = legislation/Acts of Parliament that come from the legislature (includes
delegated legislation). Statues will take preference over the common law because of
parliamentary supremacy.
Category 4: Private law and public law
Private law governs disputes between citizens (tort, contract, property)
Public law governs disputes between citizens and the state (tax and administration,
criminal law)
Category 5: Civil law and criminal law
Civil matters are disputes between private individuals (private law) or between the
state and an individual (public law)
Criminal matters are prosecuted by the state against the individual who is accused of
breaking specific criminal rules. Standard of proof = higher – beyond all reasonable
doubt
Category 6: Substantial and procedural law
Substantial law = sets out the rule which is to be followed e.g. Consumer Rights Act
2015
, Procedural law = sets out rules by which the substantive legal matter is determined
e.g. CPR, rules of evidence.
Common Law = The Sources of Law
Legislation = most important one currently. Doctrine of parliamentary sovereignty =
supremacy over case law/precedent.
European Law = developed by the legislative power in EU = composed by 3 bodies,
European commission (only body to propose legislation), parliament and council.
Highest court is the European Union Court of Justice.
Primary Legislation – (Acts of Parliament/statutes) HOC and HOL
Secondary or delegated legislation – Developed by the Government regulations;
areas where there are controversial issues. Cases of emergencies – parliament
can’t fit in their schedule – government may develop or implement through
delegated legislation.
Case law – principles developed by the courts historically when there was no
legislation to solve a dispute. Courts often do now is statutory interpretation (part of
case law – low courts have to follow the interpretation) which is deciding how to apply
primary legislation or EU legislation to specific facts and disputes.
Other sources of law (less important) = ways which the law can develop
Equity – historically developed by the court of chancery. Specific courts deal with
this
Custom – traditionally important and now is still relevant in areas such as
international and constitutional law.
International treaties – conventions signed by the government, states which only
binds them directly doesn’t bind citizens unless transposed through domestic
legislation.
THE DOCTRINE OF PRECEDANT
Origin of common law
Historically placed – courts developing and development of case law/precedent =
Norman Conquest 1066 AD – William the conquer arrived to the throne and
established a central government in Westminister. He then started to send judges
around the country to the leader of kings justice and in doing so the judges starting to
apply the local customs and when they found times that were rational or contradictory
then they started to moving these out and starting a process of unifying/uniforming the
law through judge made law over time. Over the 13th century so can’t talk about an
emergence of common law. But when the reporting of these cases came precise in
19th century when these precedents weren’t just followed but defining feature of a
common law = became binding = lower courts had an obligation to apply the legal
principles developed by the higher courts.
But fragmentation of power in medicinal society produced patchwork of legal
courts/systems merged together with the Judicature Acts 1873-75
Doctrine of Stare Decisis = treat similar cases should be treated alike – need of certainty
which allows parties, individuals and society to predict their affairs = predict outcome of a
dispute if it reaches the court
Doctrine of stare decisis (follow the previous decision) needs to be distinguished
Distinguish precedent from Res judicata (thing that has been decided) – judge or court
makes a decision – parties have a few weeks to appeal for a decision and don’t
appeal within that time frame and that decision is firm and you can’t go to court for the
same case that has been decided (extremely exceptional)
Distinguish between court (contain names of the parties and pleading and court
decision and law report (legal reasoning of the judges – more than 1 judge then all
, their reasoning (for/against) will be included). Sometimes 2 judges may agree on the
outcome and not the reasoning = becomes complicated to identify what is the
precedent of the particular case. But helps to develop the law by identifying different
arguments in favour/against legal proposition.
Advantage: Let the decision stand because there’s legal certainty (resolving disputes
in a consistent manner).
Disadvantage: But uses passed social standards to current situations. Slows down
the development of law where it is not evolving around society views.
English legal system in context “the law is certain but also certainly indented. The law
is consistent but constistely wrong = strenths of weakness of dotrine of precedent =
provides certainty and consistency but has limitations due to pass precedent.
How to minimise precedents that use passed social standards? Get rid of outdated
standard
Acts of Parliament/Statutes = overrule precedent. Because of doctrine of
parliamentary sovereignty = parliament is the only democratic institution, supremacy
of deciding what the law should be. But when precedent is overruled there is a
presumption that the statutes would respect the principles developed by the case law.
Expectation = statute has to be very clear about how precedent/principle is overruled.
Human rights act 1998 – S3 requires judges to interpret domestic legislation in so far
possible in a way which is compatible with human rights convention. S2 to take
consideration of case law.
Judges (high court and above judges) may make law in order to adapt legal principles
to meet contemporary needs – develop the law in regards with the changing views of
society e.g. no discrimination against homosexuality.
Courts in order to avoid a precedent which would lead to an outcome that is injustice
to the parties are able to distinguish the facts of a previous case/law (legal question
asked to the court). Exceptional circumstance could argue that the previous decision
was reached per incuriam (ignorance of a binding precedent/statutory provision which
should have been taken into account in the previous case in regards to a particular
precedent.
However, this would go against certainty and other rules would be undermined and
the authority of the courts
Overruling = where a court decides that the legal principle in a previous case is wrong
= cancelled and a new precedent is developed. Can only be done by a high court and
above.
Precedent in common law jurisdictions
Precedent = divided into facts and legal principles (most important /essential legal
principles when reaching a decision =ratio decidendi “the reason for the decision” and
the rest of the discussion in a judgement is the obiter dicta = “things said by the way”)
Judges interpret statutes and cases stating what the law in a judgement:
1. Binding evidence which is ratio decidendi – precedent must be issued by the same
or superior courts with reported decisions = (SC, COA, HC) = only these courts can
issue precedent & legal principle needs to be a connected to the important facts of
the case = “material facts”. If one element is missing then there will be different
levels of persuasion – courts don’t need to follow that particular outcome/can do if
they want to. Especially if it comes from a higher court = biter dicta from the
supreme court would be extremely persuasive.
2. Persuasive evidence of the law which is obiter dicta “other things said”. Used as
persuasive precedent for future cases. Can become a ratio in a future case.
Judgements are not binding.
Judges can’t decide de novo, they make an analogy between previous (what the
precedent is) and the new case. In doing so, it is there when they decide the ratio of
the previous case, parties and legal representatives argue and provide different
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