Introduction To Law And Practice

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Civil Law

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The body of laws dealing with the rights and duties owed by individuals and organisations you eachother.

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Criminal Law

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The body of laws owed to society as a whole.

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The burden of proof.

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Who has the obligation to prove their case. Usually the prosecution or claimant.

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The standard of proof.

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The "weight" of the evidence required for one party to win the case. -Beyond reasonable doubt.

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Common Law

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The body of law developed from written judgements setting out the reasons for a decision. The only remedy available being damages. Judges referred back to these judgements to help decide latter cases.

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Equity

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A parallel body of law to common law. Based on legal principles for fairness and equality. allows for an equitable solution rather than just damages.

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The Judicature Act 1873-75

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Merged Common Law courts and the Court of Chancery and required all courts to now apply both common law and equity. Equity takes precedence.

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Equitable Maxims

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1. Equity will not a assist a volunteer

2. He he comes to equity must come with clean hands

3. He who seeks equity must do equity

4. Delay defeats equity

5. Equity looks you the intent not the form

6. Equity will not suffer a wrong to be without a remedy

7. Equity acts inpersonam

8. Equity follows the law

9. Equality is Equity.

10. Equity sees done that which ought to be done.

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Equitable Remedies

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Specific Performance

Recession

Rectification

Injunction

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The Organs of Government

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Legislative - UK Parliament responsible for creating laws.

Executive - Governs the Country.

Judiciary - To apply the law to individual cases and development underlying law.

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The doctrine of parliamentary sovereignty

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This states That parliament has absolute power. One parliament can not create anyway which limits the law making powers of future Parliaments.

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Green Papers

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A draft proposal of a piece of legislation. Published so that feedback can be obtained.

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Types of bill.

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Public bill- Effects the whole Country.

Private bill - Effects a limited area or a limited group of people.

Hybrid bill- Apply to the whole country but has a greater effect on a minority.

Government bill- Proposed by a government minister.

Private members bill- Proposed by an MP who is not a government minister.

Law reform Bill -

Consolidation bill

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Creation of an Act of Parliament.

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1. First Reading

2. Second reading

3. Committed stage

4. Report stage

5. Third reading

6. Royal asscent

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The Human Rights Act 1998

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The Human Rights Act 1998 came into force in 2000. It allows for alleged breaches of the ECHR to be dealt with by UK courts.

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S1 The Human Rights Act 1998

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Lists the Articles of the echr to which the UK has agreed. It also contains the Protocols to which the UK has agreed.

O'Halloran V UK [2007]

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S2 The Human Rights Act 1998

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Requires UK courts to take into account any decisions of the European Court of Human rights. Non-Binding.

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S3 The Human Rights Act 1998

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UK Courts must interpret all legislation in a way that makes it compatible with the ECHR rights in S1.

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S4 The Human Rights Act as 1998

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Provides that if the Supreme Court, High Court, Court of Appeal and Judicial Committee of the Privy Council cannot interpret an Act in a way that complies with the ECHR rights then they can make a declaration of incompatibility.

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S6 The Human Rights Act 1998

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Provides that only public authorities are required to comply with the ECHR rights in S1

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S7- The Human Rights Act 1998

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Provides that if someone suffers a breach of their human rights they can bring legal proceedings against that public body.

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Delegated Legislation

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Secondary Legislation passed under the power of the parent or enabling act. It is usually delegated to a government minister who is assisted by civil servants and experts.

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Statutory Instruments.

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The most important form of delegated Legislation. There are four types:

Regulation -Fills the gaps in law. More technically detailed than an Act of Parliament.

Rules - Used to set out the processes which must be followed . Used typically in court processes.

Orders - Used for a special functions, the majority are Road closures but are also used to bring into force sections of Acts.

Orders in Council- Orders passed by the Monarch or the Privy Council.

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Controls on delegated Legislation

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Publication- S2 Statutory Instruments Act 1946 provides that Statutory Instruments are Published asap after they are made.

Laying before Parliament - If a piece of delegated Legislation is created under thebpower of a parent act it musr be laid before parliament for them to scrutinise.

Parliamentary Committees

Judicial Review

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Substantive Ultra Vires

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If the content of a piece of delegated Legislation is beyond the scope of its parent act it is considered to be substantive Ultra Vires.

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Procedural Ultra vires.

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An enabling act may set out procedures for which delegated Legislation should be created under. If these procedures are not completed the legislation has been passed with procedural Ultra vires

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Advantages of delegated Legislation

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Technical and detailed.

Speed

Flexible

Saves Parliamentary time.

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Disadvantages of delegated Legislation

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Volume

Poorly drafted

Obscure

Lack of democratic control.

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Court Hierarchy -Civil

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County Court

High Court + Divisional Court of the High Court.

Family Court

Court of Appeal Civil Division

Supreme Court

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Court Hierarchy -Criminal

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Magistrates Court

Crown Court

Divisional Court of the High Court

Court of Appeal Criminal division

Supreme Court

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Ratio decidendi

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The proposition of law which decides a case in the light or context of the material facts.

Binding element

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Institutions of the EU

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Council of the EU

European Council.

European parliament

Commission

The Court of Justice of The European Union

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Council of the European Union

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Legislative function. It is responsible for creating laws with the European Parliament.

Executive function. Responsible for economic and police policys with member states.

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Obiter dicta

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A legal discussion which is not necessary for the case at hand but explains a point of law that may be relevant to future cases.

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European Council

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Executive Function. Headed by the President and consists of heads of state. It defines the general political direction and priorities of the EU

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Sources of EU Law

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Treaties - Primary Legislation

Directives - Sets out the law in general terms. applies to all member states it is addressed to.

Regulations - applies to all member stated are directly applicable

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Court of Justice of The EU - Jurisdiction

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Actions for annulment

Actions for failure to act

Direct actions

Proceedings for failure to fulfill an obligation

Preliminary proceedings under Art 267 Treaty on the Functioning of th European Union.

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When can you issue straight to the High Court?

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If the claim is for more than £100,000 or the claim includes damages for personal injuries and the value exceeds £50,000.

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CPR Tracks

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Small Claims Track - Below 1000 for personal injury or below 10000 for other claims.

Fast Track- Used for claims exceeding 10k but below 25k.

Multi-track - For claims that exceed 25k.

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Types of Criminal Offence.

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Summary Offence - Least serious offences which are tried in the Magistrates Court.

Either-Way Offences- Preliminary hearing at the magistrates Court. Could be tried at Crown Court.

Indictable Offence - Must be tried at Crown Court following a Preliminary hearing.

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Magistrates

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A lay person with no legal qualifications who reside over cases in the Magistrates Court.

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Advantages of Magistrates

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Cost

Community Justice

Local Knowledge

Diversity

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Disadvantages

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Inadequate Legal Training.

Reliance on legal advisors

Middle-class Bias.

Case-hardened

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Jurors

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Must be aged 18-70

On the electoral role

Have been a resident in the UK since 13 for atleast 5 years

Not mentally disordered

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Barrister - Qualifying

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Academic Stage

Inn of Court

Vocational Stage

Call to the Bar

Pupillage

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Solicitors - Qualifying

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Academic Stage

Vocational Stage

Admission as a Solicitor.

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Cilex - Qualifying

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Student member

Level 3 diploma - Associate

Level 6 Higher Diploma

Graduate Member

Qualifying Employment

Fellow

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Negotiation Advantages

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Time Efficient

Speed

Inexpensive

Confidential

Informal

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Negotiation Disadvantages

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One party could be at a disadvantage if the other party has a more dominant position.

If oneparty is unrepresented they would be at a significant disadvantage.

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Mediation

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A mediator will shuttle between two rooms which contain each party. They will present the othersnargument and continue back and forth to reach a resolution.

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Mediation Advantages

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Objectivity

Informal

Parties can contribute to the content of an agreement

Legally binding

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Conciliation

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Similar to mediation however the conciliator can propose compromises and agreements.

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Arbitration.

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Both parties submit their arguments to an independent Arbitrator who then makes a final decision.