English Law - English legal system
Introduction to the English legal system :
I) The importance of the English Legal System:
Lecture from a foreigner perspective.Comparative law is important, comparative perspective. Presentation of the English legal system from a French perspective.
Thanks to this course we can have a different vision, angle of what French law is.
The purpose of this course isn’t to transform us in British lawyers, English law experts. This course is here to brought you a new vision.
A law can gain (entrer) on a lot of territory. We probably knowthat there’s a competition between laws in the world. First state, a good law permit to businessman to createrelationships, values, money.We should interest to have a good law.
When English businessman decides that his contract should be covering by English law which is by the way a freedom they have, it’s very likely (probable) that in case of problem, in case of disputes, this businessman decides to settle the dispute. The businessman decides to use English law.
Why is it an interest for this state? The justice creates some money (feels of the lawyers, the taxes paid by these lawyers). It will create some activity in the country.
The competition takes place between laws of the states. It’s very remarkable that this law competition is supported in the way by an international organization which is the World Bank (in Washington). The World Bank publishes each year a report which is read everywhere in the world and this report is named “Doing Business”. It presents different laws of the country and the rank of the country. Which law is better to do business? The country which was first last year is Singapore. After Hong Kong, New Zealand, USA, Denmark.
In the world, 5 states are Common law countries (UK, USA, New Zealand, Australia, Canada). They have a legal system based on the Common law; they have been built following the models of the English legal system. This law is considered to be very good law for businessman. We should have to understand why Common Law is important.
What Common Law is? To study the English Legal System it’s useful for our future practice to become a business lawyer. Another reason is to understand the influence that English Law can have or had on our French system.
Example to illustrate this influence: A trust in English Law is the institution which characterized the most what English Law is. It’s a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or allof his or her property to a trustee. The trustee holds that property for the trust’s beneficiaries.
This is a way for having a property which is very common. We find trust in wills (testament). We can find also trust in sports. A competition is founded on a trust. The honors of this competition donate to the American’s cup a specific document to the New York club. Trust is very useful. It’s not a contract exactly; it’s a way to have property.
We don’t have trust in French law. It’s a mechanism that works very well and French businessman looking at English businessman. In business, there as a increase pressure. In 2007, a French law created the “fiducie” (trust) = “confiance”.
The institutions of the trust have been absorbed by the French institutions which create his own trust: “fiducie”. This example illustrates that this course is useful to understand better our French law, civil law.There is a clear influence of the English legal system on the French legal system.
Fiducie = Contrat par lequel un constituant (ou fiduciant) transfère temporairement la propriété de biens ou de droits à un fiduciaire, à charge pour ce dernier d’agir dans l’intérêt du constituant ou d’autres bénéficiaires ou dans un but déterminé (définition Wiktionnaire).
II) The story of the UK :
English legal system: the exact title of the country is the United Kingdom of Great Britain and Northern Ireland. It consists of 4 countries: Wales, England, Northern Ireland and Scotland.
Wales differs from the other countries in the legal system since 1535. With the United Kingdom act Wales became annexed by England. Wales has his own legal system since the 16th century.Differences between England and Wales when Wales was annexed by England.
Scotland is a country who has joined the UK as a result of an Act of Union in 1707, the Parliaments are for both countries: England and Scotland. This act joined the kingdom of England and the kingdom of Scotland into a United Kingdom named Great Britain.There is a Common parliament. It creates a Parliament for United Kingdom. There was a Scottish parliament, with this act it disappeared, and this act preserved Scottish law. Scottish law is quite different that Law of England. Scotland has shared legislature with England and Wales.
There was no more Scottish parliament. In the late of 20th century, there was some political pressure in Scotland to get back in his legislature power. Scotland has recovered his own parliament through a devolution process who started in 1997. A referendum was organized and the question was: do you want a Scottish parliament or not? Scottish voted yes (70%), they want back. In 1998, the Scotland Act was acted and created again the Scottish parliament. After a break or 3 hundred years Scottish parliament was born again.
However, Scottish parliament can act his legislation only in certain matters: matters concerning health (culture, education, social work, tourism) and some matters are reserved to the central government (defense, national security, tax system). The distinction isn’t so strict, they can have debates but they can’t vote on it. It should have the consent of Scottish parliament for Westminster parliament. The Westminster parliament is the parliament of United Kingdom, he can create Scottish law but there is no automatic assumption that laws passed in Westminster to Scotland.
C) Northern Ireland:
Northern Ireland is the most recent addition to the UK. It was created in 1920. It was a member of UK as a result of the Act of Union in 1801. The whole country of Ireland has become a part of the UK and after wars, long battle in 1920 the Ireland was separated, partitioned into Northern Ireland and Southern Ireland (EIRE). Northern Ireland did the same as Scotland. Since 1998 the Northern Ireland assembly is the devolved legislature of Northern Ireland. Since the Northern Ireland Act in 1998, the good Friday agreement, more responsibility are for Northern Ireland have been given to this assembly.
This countries can enact their own law for specific matters but we should remember that the Westminster parliament reminds the Parliament of the UK and expressly preserved the rights of Westminster to path legislature. When an act is enacted in Westminster, and is applicable in Northern Ireland and Scotland, it’s called the extent.If an act is extent, there is no sections with in the act that discussed the extension. This geographical and historical reminder was useful to remember what English law is.
The influence of English Law is still important in Canada.
III) Private Law:
Private Law: distinction between private (citizens) and public (despite exist between state and individual) law is the same as the one we make in French Law. Private law concerns dispute that exists between citizens and public law concerns dispute that exist between the states and the individual.
Some famous jurist as DICEYstated that there was no such thing as administration law in England. He meant to a contrast position with the continental based system which has always believed that there is a distinction between private law and public law. There has been some controversy in the 19th century about the distinction should be made or not. For him, there is a difference between public and private law but all people are equivalent in front of law.
Nowadays it’s quite clear that there is a specific distinction. A specific court (administrative court) has been created.The Administrative Court was created to apply specific body of law.The system can be divided in a public and a private law.
System: it’s not a word very commonly used in French law. The system describes how the law is to be applied and created. It envelops procedural law and court system.
Three parts of the course:
- Sources of English Private Law: 4 chapters. Different kinds of sources: domestic law (loisintérieures), Parliament act, case law (JP), international law, customs (coutume)...
- Administration of justice: 4 chapters.
- Influence of English Law today: 2 chapters.
Introduction to what Common law is. The purpose of these 2 hours is to understand this concept.
First, Common law characterizes the law of England and Wales but also of all the legal system which took the English model. But in reality Common law has 3 significations, 3 different concepts:
§1:Distinction between CL and statute law (written law) :
It means that part of law which is contained in the decision of the court. Indeed, in England and Wales law isn’t only passed by Parliament. But law can also develop from the previous decisions of courts. This is the reason why precedent which will explain later is so important in the CL system. Why do we use this CL to describe the body of law from the decision? We have to go back in the history to understand this meaning.
English history, before the Normand invasion: the administration of justice was entirely left to local courts and the law applied by these local courts was customary and so different from one right of the other in the country. The law of the court was a law practiced in the local courts. This situation has changed with the Normand conquest. Guillaume the Conquer invaded England in 1066. The invasion changed a lot of things in the legal system. The Normand set up royal courts composed of judges appointed by the king. New courts, royal court have been created and deformed curia Regis. This court will sit in Westminster. So for the first time courts depending on the king are established in England. This court sit only in Westminster and many people couldn’t afford with the money to travel and go to Westminster whenever they needed to recourse the justice. The second did was to create itinerant royal justices that means a system of judges who travelled around the country to give justice. These judges were appointed by the king. We can say that since people couldn’t go to Westminster but Westminster comes to the people. These itinerant judges become quickly very popular. In the meantime, there are still local courts functioning. But the people preferred to go before the royal justices instead near the local courses. The royal courts were much more attractive to citizens and this court progressively divided all the places for the local courts. Why did they trust more the royal court than the local courts?
First argument is that because they were at royal court a very strong monarchy and the strength of the king who have established this first court was considered a guaranty of this efficiency of the royal courts decisions. The local courts didn’t depend on the king.
The second argument is that maybe this court is more important that the local courts. Civility nation was about land possessions. It was the only way of becoming… civility nation was meanly… the judges in royal courts didn’t know the citizens; they didn’t live in the same area and come from Westminster. That gave a guaranty from equality. Representation of the king has no relationship with the citizens.
The procedure followed by this court appeared more serious than the followed of the local courts.
They didn’t want to impose the royal court but the succeed convinced the people to follow this court.
Main characteristics of the royal court: this courts are centralized, different kind of courts are in Westminster. The judicial power was a king’s monopoly. At that time no separation of powers existed. The king is the source of justice. The idea of justice is a prerogative of the crown, the king. It was recognized that peace is an essential element for collecting taxes and other fees. If there is a war then the lords have to pay for the battle. The king can raise money to keep peace. He offers a system of justice to keep peace in the country. The king had to secured peace and so justice. But of course this was hard for just one man. The king started to delegate his power to others persons, this persons being the royal judges. This is certainly to keep a certain control of these judges but the courts were only in Westminster. If all the judges remain in the same city it perms the king to have a certain control on their activities, the control is done more easily.
The administration of justice in England even today is very centralized. There’s only one first instance court in England which is the high court in London. The centralized system is still alive today. Of course, the centralization has been newest. This itinerary of justice has been taken in the USA. The federal courts are divided in 11 circuits. The judges travel. This idea of judges travelling is an idea which is applied in USA too.
The second factor which we enforce the centralization of the central courts is that they have few judges. The first reason for having only a few judges is that the CL system was very limited. That means that huge members of actions wereabounding to fail because there isn’t fit to recognize form of action. If a lot of actions will fail anyway there was such a need to judges. Formal action, specific form of action.
A big part of the work was left to the jury. The jury has to decide all the matters of fact in a trial. The legal work only for the judges, the fact has been determined by the jury. Determining the fact of a claim is sometimes a very bottom work. We didn’t need so many judges to have the actions decided.
The jury was used for the trials. It was thought at that time that it was better to have a jury. People living in the same area where the disputes abode. They have a personal knowledge of the facts. In France a judge has no power to use personal knowledge to decide the case, it’s prohibited.
There was a specific amend of money to pay. This amend was high. They can’t bring an action before the courts. There are still very few judges in England, the judicial function in England will main very prestigious. The social position and the prestige isn’t the same in both countries. There are so few judges in England that each be considered that having a big power, judges can have an influence on the law.
The idea of having a centralized system was good for the king to control it but also was good because the judges worked at the same place, they knew each other very well and they could speak together about the cases they have to decide. The fact that they know each other gave uniformity to the decisions and this is how a Common Law has been created. It was a Common law because the judges could discuss and achieve the same result whenever the same case arose. Nevertheless there was judges didn’t create the CL out of nothing. They just didn’t imagine the best solution out of nowhere. They were inspired by the customary laws that were in force before in England. So they use customary law as a source of inspiration. Inspiration because they didn’t feel bound by it. They could depart from customary laws whenever they founded to be appropriate. Another influence of developing of CL is canon law. Because a number of judges were church men, probably because they were the only ones who can read and write.
Of course, they were also probably influence by Normand law as most of them they were closely related to the king and therefore often of Normand origin. The role of judges managed to set up a fairly system that finally prevailed other customs and so created a body of law which will be common to the all kingdom. This was impossible through these royal judges. CL today is considered as being characteristic of the British identity. But in fact, this identity was born of a body of law by French jurist. The judges of the king having a Normand origin. It’s a French origin. Roots of the CL are from the French culture.
It continues to be a significantamends of law that exists without a statutory definition. Even today there is a huge part of English law which come from the CL. Murder was defined in the 18th century on the CL. Even if the punishment today is statutory law, the origin is from the CL. This body of law is still important.
§2 Distinction between Common law and equity:
The second meaning of the CL can be understood with the one of equity. The heart of CL was originally what records the writ system (assignation). Writs were documents issued in order to start an action of course. Someone has to issue this writ and this is the court office, the chancellery. At this head of the office, the lord chancellor. The writs were limited in number that is to say that the complained of the litigants had to fit within one of the existing writ which embodied a form of action. The writ isn’t an invention; it was a technic use before the Normand invasion.
For some facts no writ existed and this created some problems. But the function of the writ also changed with the time. In the beginning the writ was a remedy in itself that is to say that were the claimant obtained there writ, the writ was enough for him to have justice. No trial (procès) was needed; a trial was needed just if the other party contested. A writ was a way to avoid judicial procedure. The justice becomes less hasty, the writ itself becomes a document initiating judicial proceedings (poursuitesjudiciaires) rather than avoiding them.The function of the writ was just to instruct the defendant to appear in court.
Each writ was founded on a particular form of action (writ of dept.). These causes of action were classified, divided into 3 categories.
The first was the real action, action which concerned real property. There were actions which concern only personal actions. Another form of action is a mixed action: when the plaintive were both ask for real property and for damages. For each specific actions different writ existed. One of the most famous writs was the writ of trespass meaning that it was a writ that defends to trespass (défensed’entrée) the property.
Writ is a document, a piece of paper that has the royal sign, power on it. Each writ corresponded to a certain procedure. For instance,writ could be determined the competence of the court. They could be also special requirements for the service of the writ. How the writ is given to the defended. The writ was adept to the Sheriff and then the Sheriff asks the defendant to pay to the plaintive the money view to the plaintive. And then the defendant has the choice: order to pay or to appear in court to explain why he was refusing to pay. The Sheriff attached the wrong door to answer the plaintive. The service of the writ was different according to the writ. Limitation period (délai de prescription) could usually from one writ to another. Another particularity is the bottom of proof who admitted most of proof also depended on the writ. For that kind of writ we are allowed just to have testimony, we need write proof. Then the mode of complaint could be different and also some forms of actions founded a specific writ were related to a very speedy and official procedure but others to a dilatory (lente) procedure. The remedies also differed from one writ to another. Therefore, the differences between the forms of actions chosen by the plaintive were a high importance. The difference is also on substantive law (droitpositif). The substantive law applied in a given form of action was also depended on the form of action chosen. And more importantly if the plaintive have to choose one form of action he was bound to fail. And if the plaintive complained could not fit within one of the already existing fits it could have no hope of redress of all. This system was similar to the Roman law. In Roman law only a limited causes of action can difference from remedy.
The problem is that this system is really rigid. If no writ exists, no right exists and so the problem is that the writ system couldn’t answer of all the demands of justice. A number of cases were left without a remedy. The evidence is important in this kind of system. The litigants have to remove the right to ask other writ. If the act couldn’t be proven then no writ could be issued. It was thought that no writ could be issued then no writ can be existing. But even when cases can be issued because facts could be proven, another problem could raise. If there was case, the courts would consider themselves as being bound to make the order for which the proceedings havebeen brought. And this causes injustice.
Example: the case where there is a written evidence of a dept. The dept has paid money, the claimant. But the claimant didn’t destroy the document, he copied for the court. If the evidence exists then the court felt bound to condemn a double payment just because there was the proof that the claim exists. We can see that evidence is really the essence of this system.
This rigidity of this system prorogued the need of the different justices, a need for more equity. The first solution to have more justice is just to create new writs, new forms of actions. And this is how the problem was held at the beginning. A new writ was created when there is no writ for the case. The chancellor could create new writs. At first, new writs could be drifted to adapt the system to new situations. But the problem with this approach was that the ability to create new writs amounted to the ability to create new form of actions. The ability to create new writs was really close to the power to create new rights.
If the chancellor can create a new writ, then he can create a new writ for this plaintive. It means that the judges had the power to create out of nothing new right.
Other time there was an opposition to create new writs by the chancellor. In 1258 the king was forced to accept the provisions of Oxford which prohibited the creation of new forms of writ. New writs can be created but not without authorizations of the king council. The system was remained rigid. The judges tried to bring some flexibility and the sanctions that was needed giving by the king council, then the parliament was flexible to create new writs. It was not useless but a lot of time was spending of creation of new writs.
In the 18th century this system has been given up. The writ has been abolished through a 4 steps process.
First the uniformity of process act in 1832. In this act a single uniform procedure for personal actions was created but the plaintive still had to state in the writ the form of actions on which was relying. The abolition of this system begins with the uniformity of formal actions.
And then the real property limitation act in 1833, this act abolished the forms of actions privately requite for all kinds of real or mixed actions.
Then in 1852 the CL procedure act dropped the requirement that any particular form of action should be mentioned on a writ.
And finally, the judicator act in 1873 is the complete abolition of the forms of action. It interesting to note that in the USA the traditional writ system also applied. But they abolished the all writs act in 1789. United States Federal court to issue all writs necessary or appropriate in age of their respective jurisdiction and agree about of the principles of law today all kinds of writs have disappeared from the US legal system. Only a few writs have escaped abolition.
A writ now in England is only the act to initiate a procedure (assignation). But there’s also an importance of the service of the writ today in England. If the writ can be served in the English territory then this is a justification to the English courts to have jurisdictions.
Before the abolition of the form of actions, one could say a remedy comes before right. 19th century: the forms of action were given and the causes of action have to be deduced there from. The cause of action (legal basis) comes for the form of action which is a way… the abolition of the form of action in itself wasn’t enough to allow English law to welcome immediately new causes actions. The doctrine of precedent wasn’t abolished. The judges still had to find a private case on which to rely the remedy to the victim of a wrong. Something else was needed in order to free the court from this rigidity. This is how equity emerged from this rigid system of the writ system. Because parties plaintive couldn’t obtain satisfaction if they didn’t have the writ, then litigants develop the practice to go directly to the king. They develop petitioning. But before deciding what to do with this case the kingwould take advice, the Lord Chancellor the same that could issue new writs. The Lord Chancellor hadn’t only legal; it was also a conscience man. Concept of natural, universal justice.The king originally made these decisions with the advice of the chancellor, but soon he has delegated this power to the Lord Chancellor. The task of individual decisions, petitioning decisions was left to the Lord Chancellor. And then, litigants present directly to the Lord Chancellor by passing the king.
At the beginning, the Lord Chancellor issued decreases the decisions in the king’s name.Then, he gives justice in his own name. This is a way of creating a new kind of court, the office of chancellery become the chancellery court. The bases were only equity. The decisions were founded on equity and this is how equity should be distinguished from CL.
At the beginning 2 kinds of court: chancellery court equity and royal court decide with the precedent with the case law. It also gave rights to the possibility of having a conflict between equity judgment and CL judgment.
More over this dual judicial system was border some from the litigants. They have to pay to fees (honoraires) to lawyers. It’s very expensive to have these parallel courts. This is the reason why at the end of the 19th century with the judicator act, the JA merged the administration of the system of law and equity. A court of CL could apply equity principal and the litigants could be in one court.
Nowadays, both systems are applied by the same court.
§3: Distinction between Common law and civil law :
Civil law as the traditions, so civil law countries. When French lawyers used CL it’s often opposite to the civil law system. We can say that CL and civil law represent different families (familles de droit). In comparative law, law is categorized among different families. Civil law is one family, CL is one family.CL and civil law are opposed and are considered at different families.
The civil law is also named the continental system and it differs from the CL in that it’s based on the primacy of written law. The role of the statute law is different in CL and in civil law countries. But this opposition is also historic. In continental Europe the law is influenced by Roman law. We can see the heritage of Roman law. Another distinction is that in civil law countries the way to create the law is to enact a series of law and built a court. The codification wasn’t important as continental system in CL system. Of course, today these differences aren’t so important as they could be before. But the traditions still and the way of thinking the law, practicing the law is different. A Scottish law was before being part of UK, it was a civil law system. Then with its participation to the UK, CL has been applied in Scotland and so for the English lawyers. This distinction between CL and civil law give an end to an introduction of what CL is.
We start with the first part of this course: sources of English law.
Part 1 : Sources of English law :
As in French law, the sources of English law are diverse. But the strength of this sources are quite different than the strength they may have in civil law countries. And also the interactions of the sources are so different in the English system.
It has been an evolution of the importance of the strength of each source. For centuries, English law was only Common Law that is to say the law created by the royal courts. And statutory law was a secondary source of law. Statutes were in fact enacted in order to bring exceptions to the CL. This explains why the statutes were interpreted in a very narrow way. Statute was the exception; the normal law was the common law. The law was still the main expression of law in civil law. And then the rules of law contained in the statute. Only when the courts applied this statute.And so then the substance that was in a statute law was better known through the courses. There was like a shift (changement) in the apprehension, application of lawsembodied in statutes. Statute law is a secondary nature. You would quote the decisions that applied this statute. We find the laws in decisions but not in the statute.
Nowadays since the 2nd world war the importance of statutory law has grown. Everything needed to be regulated and case law is too slow to adapt the law at that kind of time. At that time the amount of this legislation grew (for instance social security cannot be made through the decision of courts, so it was necessary that an act on social security be enacted). Nowadays statutory law is the main source of English law. 2013: there are almost 3000 pieces of legislation enacted just for this year, there will be more. The statutory law is important today in England.
What are the sources of English law? Statute law, case law (JP), customs and equity, the international sources in England.
Chapter 1: a domestic source of law: the legislation:
Legislation: law passed directly or indirectly by Parliament. It’s not only the laws this is all pieces that the parliament adopt or that he delegated at other parties to adapt.
The etymology of the word: the word is originate in the French word. At the beginning, Parliament was an expression used to describe the consultative meetings on the English monarchy with a large group of nobles and prelates (church men). The word parliament was the place where the monarch talks with the nobles and the church men. At that time, the language used by the monarch and the elite was French. It comes from the word “parler”.
The Parliament today is composed of 3 bodies:
- The monarch, now the queen.
- The house of Lords.
- The house of Commons.
A) The house of Commons (HC):(assembléenationalemais pas trèsapprorié) :
It’s close to “comment”. The commons were the none nobles and the none church men. The commons are people who are neither nobles neither church men.
King Eduard the 1st which who in 1275 called his first Parliament. He called not only the nobles and church men but also the knights of the shire (chevaliers) who represented the county (zone rurale) and he called also burgesses (bourgeoisie) who represented the city. It was accepted that Common people, that is people affected by taxations, that they have to give their consent to taxations in Parliament. It was established that the Commons have to participate and consent was to be adopted. In the 14th century, two distinct houses of Parliament emerged. On the one side, the nobles and church men and on the other side the Commons. Nobles and church men were in House of Lords.
Today the house of Commons is a democratically elected chamber of Parliament. There are 650 members of Parliament (MPs) as they are 650 constituencies (local division in England to elect a representant, a MPs). Every five years an election is organized, but very often there is an election before the expiration because of the politic games. The system is quite easy, the person who gets the more vote will be elected, there is no proportionate system.
MPs aren’t only for England, there are also for Scotland, Wales and NI. This is a parliament for the whole territory, in addition there is also a Parliament in Scotland and a national assembly in Wales and in NI. This isn’t the English Parliament.
It’s organized on the basis of political parties. There are 3 main political parties in England today which are the labors, the liberal democrats and conservative. Nearly all members of Parliament represent a political party. But even more the cabinet found by the Prime Minister is composed only of members of Parliament or Lords. You need to be elected to be part of the government in England. It’s not the case in France.
As the cabinet is formed only of members of Parliament that means that the HC is really the place where the opposition can have a big role. It’s the concept of the shadow government. It came from the opposition, when there are elections the opposition forms a shadow government. There is a distinct role of the most important members of opposition.
Government opposite to the shadow government in HC =>voir plan de la chambre des Communes.
Distinction between frontbenchers and backbenchers. The frontbenchers (who sit in the front) are members of Parliament who are members of the government. The backbenchers are Member of Parliament who aren’t part of the government.
B) The house of Lords (HL):
Unlike the members of Parliament they aren’t elected. The majority are appointed by the Queen on the recommendation of the Prime Minister or of the HL appointment commission.
Before the Lords had inherited titles (nobles and churchmen). It’s not a democratic system. It has been a long struggle to change that. But it changes in 1999 with the House Of Lords Act. This act removed the right of most hereditary peers to sit and vote in HL. It has been agreed with the HL that some of them will stay, 92 peers will remain in the HL and will able to sit and vote. The 92 hereditary peers (paires) is a fix number. When one dies there is an election to elect another hereditary peers. The lords that have been expulsed maybe candidate to be elected when one of the 92 dies.
Today there are around 160 Lords. There are 2 categories of Lords:
- The Lords temporal: different kinds of lords temporal:
· Life peers: a peer is a member of the HL. They are people appointed by the Queen on the recommendation of the Prime Minister or the appointment commission of the HL.
· Elected hereditary peers:these are the 92 remaining peers.
· Until 2009: judicial peers. They were the members of the HL who are from the judicial comity. The HL doesn’t have a judicial function anymore and the highest judicial function is now played by the UK Supreme Court.
Lords temporal because there are Lords spiritual who are 26 bishops of the Church of England. This presence of church men is still controverted in England. Why only the church of England? There is lot of confessions in England and only one is represented in the HL. We mustn’t forget that there is a democratic process since 1999. There was a bill, a proposal to review the composition of the HL which was presented in 2011. It was presented that 80% of the Lords will be elected and not appoint. But these bill was dropped in 2011 and the project is now buried.
There is more benches in the middle for independent lords.
They share the task with the members of Parliament of making law, of considering what public policy should be and thirdly the government is responsible before the HL and the HC (holding government to account). They ask questions to the government.
II) The parliamentary sovereignty:
Parliamentary sovereignty is a principle of the UK constitution; it makes parliament the supreme legal authority in the UK. When we said that the Parliament is sovereign that means that nobody over the parliament exist in the UK.
This PS has several legal consequences:
1) No judicial review in England: judicial review means the possibility for courts to examine whether an act is in conformity with the constitution or not. For instance, in the USA there is a judicial review. Judges may decide that an act that is invoked before them, that this act is contrary to the US constitution and therefore they decide to not apply it. This isn’t possible in England since what the parliament does is sovereign, nobody can judge what the parliament is doing. That means that the legal system as in France doesn’t apply in the UK, the law can’t be attacked by anyone like in France.
2) Any earlier inconsistent legislation is automatically repealed. If the parliament decides to adopt a new act and if this act contradicts an earlier act then this new act will automatically repealed the other act.Because the current parliament has always right.
3) Contrary to the French Constitution, Parliament may pass any kind of law without restrictions;there is no limitation as to the issues that the Parliament can deal with. There is only one formal limitation: the parliament cannot pass a law that attempts to bind its successor either as to the content of legislation all the manner and form of enactment, he cannot forbid a future action of the parliament because the future parliament will be sovereign too.
The acts of parliament are in England the supreme form of law.
However there are some developments which affect this PS.
Over the years, parliament has passed laws that limit the application of PS. These laws reflect political developments but within onside the UK:
- The devolution of power to bodies like the Scottish parliament and Welsh Assembly.It has given some limitations to the PS.
- The Human Rights Act in 1998 which is the act that transposes European convention in the English legal system. This act has given some limitations to the PS.
- The UK’s entry to the European Union in 1972. EU law has to be applied by the courts and whether a contradiction exists between EU law and UK law because the EU law prevails.
- The decision to establish a UK Supreme Court in 2009, which ends the HL function as the UK’s final appeal, court of appeal. Parliament lost a portion of his sovereignty during this process.
These recent developments have limited the Parliament sovereignty.
Nonetheless, we should still remember that Parliament is sovereign and that Parliament could repeal any of the laws implementing these changes.
This principle is important to understand the process of legislation in England.
III) The types of legislation:
Legislation is for one part what emerged from the parliament and there are different words to describe an act of Parliament = Statute, legislation, Act. They mean the act which is passed by the Parliament and then enacted by the Queen. There are different types of legislation.
Distinction should be drawn between what recall primary legislation which is the bodies of act passed directly by the Parliament. And so this is the statute and act.
There is also a secondary legislation which is passed by other bodies than the Parliament. This bodies being delegated of the Parliament to adopt this kind of legislation.
In France, there is “lois” and “règlements” (primary and secondary legislation).
Very often, the law on a particularly subject comprises combination of primary and secondary legislation. Some facts are governed by primary and secondary legislation.
Usually, the primary legislation lay down a frame work of principles and rules and then the details are left to the secondary legislation. A very big difference between primary and secondary legislation is that the possibility of judicial review.
For primary legislation there is no judicial review but there is a possibility of judicial review for the secondary legislation. That means that there was act of parliaments are immune for challenges in the courts and secondary legislation can be challenged in the courts.
A) Primary legislation:
An act of Parliament begins as a Bill. The birth of an act of Parliament is a Bill.
A Bill: it’s a proposition of a law and when it’s passed it’s become an act or a statute: when the law has been passed (Royal Assent).
Bills are introduced in the HC or the HL for examination, discussion and amendment. When both houses have agreed on the content of the Bill, it’s then presented to the monarch for approval. And when Royal Assent is given, a Bill becomes an act of Parliament and is law.
A Bill can be discussed first in the HC or in the HL. But for many matters, it should start in HC (with money consideration).
Most of the time the Bill comes from the government but it can also be introduced by individual members of Parliament or Lords. Some private individual organizations may also propose a Bill.
Different types of Bills:
- Public Bills:
· The one introduced very usually by government and these public Bills modified the law through England and Wales, and sometimes Scotland and NI. It should be applied in all territory and concerns everyone living in England. For instance, the Human Rights Act is a public Bill because it is applied in the whole territory.
· “Private member’s Bills”: They can also be introduced by MP’s and they are called private member’s Bill. MP’s parliament who aren’t in the government, it’s a proposal from a backbench member. Example : the Abortion Act in 1967 which legalized abortion.
- Private Bills: they aim at changing the law that applies only to individuals or to organizations. Usually, they are promoted from organizations, lobbying groups, local authorities,and private companies.
The process of passing a Bill: there are 5 steps:
- First reading of a Bill. This is something which is really short. The title of the Bill is read out and then the date is fixed for the second reading but nothing more takes place at the first stage.
- Second reading: at this stage, the House considers the principles and purposes of the Bill and then there is a first debate on this Bill at the second stage. After some discussions a vote is given and if the Bill is voting on, then he can move on to the next stage. But if the vote is no, the second hearing is defeated and it’s the end of the Bill.
- The third stage is the comity stage. A work that is more efficient than in assembly. He studies the Bill and proposes amendments of the Bill (Commission).
- After this comity stage there is a report stage. The Bill is reported back to the whole House and there is a discussion of the amendments.
- 5 step: third reading, the whole House considers the Bill and vote. When the Bill has been adopted by one House, the same work starts again in the other House. The second house may adopt amendments and modify the Bill. When it happens, the amendment Bill must return to its original House. If a common’s Bill (HC) has been changed by the HL, it has to go back in the HC. Some others describe that at the ping-pong game. Some solutions have been found in order to avoid this ping-pong game (“navetteparlementaire”).
· 2 ways of solving the absence of agreement b/w both Houses :
- An agreement to carry the Bill over the next station. Usually one Bill should be adopted in the same station that it has been presented and if it hasn’t, the Bill is let. A Bill has a certain time life. The two houses trying to reach a solution to adopt the Bill.
- The big weapon: the Parliament Act that can give the HC the priority and the final decision. Example: Hunting Act 2004, there has been a ping-pong game between HC and HL. The HC wanted to prohibit the fox hunting (chasse des renards). HL proposed some amendments to have possibility to have fox hunting, to give some authorizations. HC was decided not to allow this kind of Hunting, HC refused these amendments and the Lords refused to rethrow the amendment. There was an act of parliament which gives presidencies to the HC, then the Bill could be passed and becoming an act.
The HC is permitted to override the HL’s refusal: it was adopted in the 1911 after the HL’s refused to pass the final’s Bill in 1909. At that time, whenever the HL refused to adopt an act, the Bill can’t be adopted, the HL had a veto. The liberal government responded to this refusal by introducing this Parliament Bill which was adopted by both Houses. Even if the HL agreed to adopt this Parliament Act, it has consequences for the HL to lose one of his powers, but it was accepted for some political reasons. This act permits to avoid this none ending ping-pong game.
Finally, there is the Royal Assent. The monarch has to grant the royal Assent. The last time a monarch refused to give the Royal Assent was Queen Anne in 1706. Now, the monarch cannot really oppose to grand the Royal Assent. When was an act comes into force, the Bill becomes an act of the date of the Royal Assent, but it doesn’t necessarily mean that it enters into force at that time. There will be a provision when the act will enter into force.
Humans Rights Act 1998 entering to force only in October 2000, after 2 years.
B) Secondary legislation:
Delegated legislation is the same. This is the legislation which isn’t passed by Parliament but this is legislation passed by other bodies like government ministers, local authorities or other regulatory agencies (“AAI :autadmind”). This bodies need an enabling act which an authorization from the Parliament to adopt this legislation. Sometimes the enabling act may be very restrictive but most of the time it’s written in a very brought language. Regulation is secondary legislation. It can also take the form of a rule or order. Even if the adoption of these statutory instruments is regulated, there are some possible dangers inherent in the secondary legislation. These possible dangers are inconvenient, are the lack of straitening because this kind of legislation is passed very quickly. This legislation is written without the help of the parliament commission, there are professionals in the elaboration of laws. There is a risk that these bodies might abuse of their power to legislate.
Some discrepancies on how statutes are made…
- Marriage (Same Sex Couples) Act 2013: the date is the date of the Royal Assent (17th July 2013). It’s extremely detail with 69 pages.
- French Law, 17 mai 2013. We have the modifications of the civil legislation. There is just 7 pages.
English act is very detailed; they try to think of all the consequences that the act may have whereas in French law we preferred to deal with principles. But English jurist don’t like general principles, they like the details provisions. This is why there is no code in England. There is a strong refusal to have general formulations in a code. Rules of law are written in a very abstract way. The languages of the act are quite detailed.
IV) Statutory interpretation:
Interpretation is in general the discovering of the meaning of words, this is the search of the meaning of a word. Since in law we just have words, this exercise is very important in law and in legislation in particular. An interpretation may be needed when there is an ambiguity in the drafting of a statute or even when there’s an error that might has been made by the parliament.
To know what a specific word in a statute means is of the almost importance:
- Example: Fisher v Bell (1961). In this case, an ambiguity arose about one specific word in one act, in the Restriction of Offensive Weapons act in 1959. In this act there is provision which states: “any person who manufactures, sells or hires or offers for sale or hire’s a flick knife (couteau à crand’arrêt) shall be guilty of an offence”.
Mister Fisher had a shop and displayed in his shop a flick knife. He was prosecuted for this offense. He argues that he didn’t make an offer while just displaying the knife in the shop.
Pb: What’s an offer? Is a display in the shop an offer for sale or hire of a flick knife? The word offer can have 2 meanings: a law of contract. It has the meaning of the everyday conversation but it may have also a technical legal sense which is the proposition made by a party to another person with this proposition containing terms and this proposition being made with an intention to be bound by the terms of the proposal. More less the same definition has “l’offre” in French contract law.
If this is the technical meaning in English law, the display in the window shop isn’t an offer. If we understand this act with the ordinary sense then this Mister Fisher could be prosecuted of this offense. The technical sense was adopted by the judges and so Mister Fisher wasn’t prosecuted. Whose task is it to interpret? It’s the task of the courts when they have to decide a case. Statutory interpretation is the activity courts have to undertake. The lawyers also, the barristers, if they want to convince the courts of such meaning of one word in the act they have also to indicate which interpretation the court should follow. This isn’t only the judge task.
How to interpret? There are some rules of interpretation. There are some rules of interpretation.There is a sort of guide lines for judges when they have to interpret a statute.
A) Rules of Interpretation:
1) The literal rule: this is nothing unusual that a court interprets literally the rule. The judge must look at the literal, grammatical meaning whatever the result is. This is the most restrictive rule since it gives really small space for judge to understand what the word could mean. The problem with that rule of interpretation is that it may lead to unfair or even absurd conclusion. In the case Fisher v Bell, it’s a literal rule interpretation. The judges didn’t look at what the intention of the legislator was, they just decided between two possible meanings of word, and deciding just for the legal one. Then, another rule is the golden rule of interpretation.
2) The golden rule: this rule says that you should interpret a word according to a literal sense unless to an absurd result. Courts should give the reasonable meaning of the word. We may found an example: this is a way to achieve an intention of the Parliament to give the word their reasonable meaning. Example: the case R(Crown) v Allen (1872).Mister Allen who was already married, married another woman who was his cousin. Under an act the fact that a man marries a second woman is an act of bigamy, there is an act which prohibits the bigamy. Mister Allenb said that “I’m not a bigam because my second marriage with my cousin is actually void. Marriage between cousins at that time was considered to be void. He argues that he didn’t commita bigamy. But then, when the case was brought before a court, the court has seen that there was an absurdity in interpreting the word marriage as the strict legal sense. But if the word marriage in the act prohibiting bigamy was to be interpreted in the brother sense, then this person could be charge of bigamy. We have to interpret the word as a valid marriage or just the fact of having celebrity the marriage even if it’s void? In that case, the golden rule was explained and used that if the court sticks to the legal meaning of marriage, it will lead an absurd result. They thought that they have to give the reasonable meaning of the word marriage in this act, this is a way to overcome the absurd result that the literal rule can give.
3) The Mischief rule: Heydon’s case (1584).Under this rule of interpretation the judge will look at the act to see what the purpose of the act was. And what mischief act (actemalicieux) the law was trying to prevent. Example: the case Smith v Hughes (1960): a case about prostitution. Prostitutes in house thought to attract the attention of men passing in the street but they remain in the house. There is an act that, a street offenses act (1959) which prohibit to being the street and to solicit in a street the prostitution. When these ladies were prostituted, they argued that they remain in the house. The problem here was that the street offenses act didn’t make clear where the prostitute had to be when the solicitation took place. The statute was ambiguous. The court looked at what was the mischief that this act was trying to prevent. This mischief was that just to prevent a gaveling of prostitute in the street and this act was also made to clean up the street so the course decided that it didn’t matter where the prostitutes were in houses or outside the house. The solicitation was projected in the street and that was considered to be important. And so wherever the prostitutes were, the act could be applied because the courts looked at the purpose of the act and what kind of mischief was being prevented.Who can said that mischief can be attempted to be avoided in the law? It’s an act of interpretation to decide what kind of mischief was prevented.
4) The purposive approach: it’s something rather new in English law. This approach seems to ensure that the wording of an act is interpreted in the light of the purpose of the lined. With that approach it is possible for courts to look not only inside the act but outside the act to discover the purpose of it. This approach has been introduced in the English law mainly because of the EU law (interprétationtéléologique) when we try to see in an act what were the purposive of this act. There is an example in the case R v Z in 2005 (attorney general for NI reference).
Mister Z and others were charged under the terrorism act of 2000 because they belong to an association which name wasReal Irish Republican Army. The terrorism act prohibits the Irish Republican Army but the problem here was that this person didn’t belong to the IRA but to another IRA which wasn’t named in the act.
Real IRA: included in the Terrorism Act 2000.
The question was: Is Real IRA included in the terrorism Act of 2000?
The defendant, Mister Z argues that the words used by parliament hadn’t made clear the intention of the parliament to include the real IRA on the list of prohibited organizations. And since it was different names, different organizations he shouldn’t be prosecuted. He tries to use the literal interpretation of the text. But the courts found otherwise using this purposive approach. They thought that what the purpose of the terrorism act was. The purpose was to try to fight the Irish terrorism so whatever the exact name of the organization is, it considers to be prohibit. The court decidesthat the real IRA was on the blacklist of prohibited organizations and these persons were prosecuted.
These 4 rules of interpretation are the rules that courts have to use when they have a problem of interpretation. There is no strict rule say that courts should start with a rule and not using another one. There is no a strict frame work which articulate, coordinate these rules of interpretation, it’s the decisions of the courts. These rules are useful but sometimes they aren’t enough in order to find what a statute really means. Courts may use aids to construction to have an interpretation.
B) Aids to construction:
1) Aids in the Act of Parliament itself: this act can give some information concerning the meaning of the word. There are some details such as the notes, the title and the preamble that might help to interpret an act. => The same sex Marriages act.
2) Aids outside the act of Parliament:
- Explanatory notes: the government may write explanatory notes on a statute to explain what the purpose of the act was.
- Interpretation Act of 1978 which gives some general principles and gives some definitions of frequent provisions and terms. For instance, in this act it’s said that when a rule uses the singular it should also include the plural. Such rules may be used by courts in this act. And then, there is a possible Hansard.
- Hansard: the nomination for the official reports of the parliamentary debates. All the work of the parliament is reported in a publication which name is Hansard. Hansard was in the 19th century the printer of the Queen and he initiated this process, it was a private initiative at the beginning. There has been a controversy of the use of Hansard by courts. Is it possible, can the courts use Hansard or not? (travauxparlementaires). It’s a very normal rule to interpret the statute in France. But it’s not the case in England. For many years, the courts refused to allow the use of Hansard. This was held in the case David v Johnson (1979).This case stays the traditional approach which is we don’t use Hansard to interpret the statute. A court may not refer to parliamentary materials.
Modern approach: in the Pepper v Hart (1993).The court decided that it could use the report of parliamentary debates. This case was dealing with a taxation issue for teachers in a private school that could sendtheir children to this school for one fifth of the normal fee. They gain more and they wanted to tax this school on the money that they spared. What a cost of the benefit was for taxation purpose? The use of Hansard was helpful since this kind of this fact was discussed during the debates. They could refer to the report and they will have an interpretation of the statute. For this reason it was allowed to use the report of the parliamentary debates in this case. But it’s not really used by courts.
- The Human Rights Act 1998: this act has given a rule of interpretation which is that the court must interpret UK legislation in a way which is compatible with the EU Convention rights (CEDH). The English courts should always give the meaning that is compatible with the CEDH.
- What Parliament is? Houses function? And what they do.
- Legal consequences of parliamentary sovereignty?
- Primary and secondary legislation.
- How primary legislation is passed?
- Particularities of statutes in England? (Compared with civil law countries).
- Main rules of interpretation.
- And what aids courts may use to construe statutes.
Chapter 2: A domestic source of law : case law :
Case law is one of the distinctive natures of law of the English law system. We have to remember that case law and English law was built on the case law. CL is the law which comes from the royal courts.If we compared with statutory law it was built of the CL. CL is something at the heart of construction of EL.Case law is judgment law. It was built with the royal court. It’s still an important source of law but what is important to understand in case law it’sthe courts principles which are binding precedent.
Case law is a body of decision but one principle which helps building the case law is the doctrine of binding precedent (précédentobligatoire) which means like cases must be decided alike (de la mêmefaçon). That means that whenever the facts of the litigation are similar to facts of a previous case then the actual case should be decided according to the previous law. This idea is that when a case was decided like that you should be decided in the same way.
This system exists in the civil law system. This idea exists in all legal systems. This isn’t something specific in the English legal system. In consistency it’s an important element of justice. In that sense there is nothing particular in English law about such a practice. However what is particular is the idea of precedent has developed in a narrowed sense. The justice must look at earlier decisions. This doctrine of the obligation of justice to look at previous decisions is also called the doctrine of stare decisis.
Doctrine of stare decisis: this doctrine has built by precedent and doesn’t apply to all legal issues. There are matters of laws which are governed by case law where the doctrine is used and some matters are:contract law, tort law(responsabilitédélictuelle) and also to a certain extent property rights are governed by case law.
I)which decisions are subject to the doctrine of binding precedent?
In reality this is not any one question but we have to answer 2 questions:
- Which jurisdictions are subject to the doctrine of binding precedent? Hierarchy?
- Which decisions by which jurisdictions?
However, we have to deal with a preliminary issue. How decisions get published and what is the report of these decisions.
A) A prerequisite: the reporting of judicial decisions:
It’s essential for the construction of case law. We find case law in the Law reports and as it is so important to have the reports of the case law that several reports are developed. There are many law reports in England; there isn’t one official law report. The report of case law was originally a private initiative. All the reports are published on a private initiative.
Hansard: the reports of the parliamentary debates. It’s different from what we have in France.
The abbreviations of some reports:
- Appeal Cases (AC)
-Ch is for chancellery division; Fam is for family division; QB is for Queens bench.
- Weekly Law Reports (WLR)
- All England Law Reports (All ER)
It’s important to have knowledge of English law. There is an official definition: this is “an account of case vouched by a barrister who was present at the hearing”. This barrister understands the case; it’s a guaranty of the quality of the report. He was present at the hearing because it was the way to know the judgment. Report is to report what it’s discussed during the hearing.
But nowadays, this notion of reports has changed because nowadays judgments are given immediately in royalty without being read out by the court. In this context, the function of reporter can be viewed as less important. However, English lawyers still considered their reporters as an important thing.
Reporters: “the workers bees of the law”.
How the editors select the decisions they want to publish? All decisions aren’t necessary reported, there is always a choice which is made by the editors which reporting a case. To the contrary of what happens in France, in England there is always a selection of cases which are important or not. And decisions report is important since courts expect to hear only reported cases or they take to account not reported cases. The selection has an impact.
Which law reports should be used in courts?
The courts need to know the private cases and the lawyers need to explain what private cases will be used. A practice direction : Citation of Authorities 2012.
How lawyers should present which kind of law report in their pleadings? There is a hierarchy which is made between the law reports. In first there is Official Law Reports. In this practice direction it is said that when a judgment is reported in an officially report which is made by a private council, only one report should be used and not another one. Reports published in Weekly Law Reports or the All England Law Reports. And if decisions aren’t reported in such law reports, they published in specialist report. The court decides the hierarchy of the reports.The hierarchy is made by the judges itself.
Abbreviations of the courts (neutral citation)
B) The hierarchy of courts:
- ECJ: EU Law => European court of justice (in Luxembourg).
- ECHR: European Court of Human Rights (CEDH) (in Strasbourg).
Both courts play a role in English legal system.
- Supreme Court: before 2009, it was the House of Lords. Appeal courts on civil and criminal matters. It is the Supreme Court of both Scotland and NI.
- Court of Appeal (civil/criminal): into civil and criminal decisions. These decisions may be brought before the Supreme Court.
- High Court: it plays different roles. 3 divisions: QB div, Chancery div, Fam div. The first for criminal cases and the rest for the civil cases.It plays the role at sometimes the first instance but it can also be court of appeal for decisions given by other jurisdictions.
- Crown Courts: serious criminal cases. The QB has an appeal role from this jurisdiction (criminal and civil). There is also the County Courts (civil).
There is Magistrate’s Courts which is a criminal and civil jurisdiction which decisions may go to the Crown Courts for criminal matters.
These decisions of all these jurisdictions bind themselves.
C) The vertical and horizontal dimensions of precedent:
1) Vertical dimension: higher courts bind lower ones:
It’s the simplest to understand. If a legal system is to have a doctrine of binding precedent it may see obvious that high courts will bind lowers courts. The vertical dimensions reassess few difficulties in practice. There were examples of decisions which didn’t follow a decision given by the high court. We can find some examples of non-obedience of decisions.
An exception to vertical dimension of precedent:
- Case of Court of appeal: Schorsh Meier GmbH v Henning  1 All ER 152. A dispute arose from (was expressed in currency). The question was:Should the court be entitled to express this judgment? And what for a currency (the only one to have legal) is it permissible. The House of Lords has previously decided in this decision : all English Courts should give her judgment.
- House of Lords : (moodle) in Re United
There must no used in currency. However, 2 judges of court of appeal thought that this rule was too old and not accurate for our times. They decided to rely on the change of circumstances to depart from this decision of the HL. In The decision Schorsh Meier they decided not to follow the decision of the HL. The justification not to follow the HL decisions was the changes of circumstances: the entry of England in EU and the crisis in 1970’s. One provision of the treaty of Rome provided that this provisions acclaiming should be able to claim in any currency of the… this case didn’t go before the HL.
=> 2 conflicting cases (CA/HL):
There was the decision of the HL and there was the decision of the court of appeal. Which decision should be follow? They decided to follow the decision of the HL but then, when the cases came before the HL, the HL decided to change its decision and decided that an English judgment maybe formulated expressed in a formal currency.
In another case: the same point arose: a contractbetween Swiss seller and English buyer. We have conflict of decisions.
It was a problem for first instance judges. The first instance judges decided to follow the HL decision when a question was again in a case.
Which decision should a lower judge follow?
HL :Miliangos v George Franck Ltd  =>vertical dimension of binding precedent. Lord Simon criticized the first instance judge for following the HL saying that it is the duty of a subordinate court to give credence to the decision of immediately high court, not withstanding that it may appeared to conflict with the decision of the still high court.
Why is it a duty for the judge to follow the immediately high court? The decisions of the still high court must be assumed to have been correctly distinguished in the decision of the immediately high court. It is supposed that court of appeal decision has been to distinguish the previous decision of the high court. It’s an argument of hierarchy given by the HL.
Judge should stick to the hierarchy principle when they are confronted to conflicted decisions. For the HL that is important is to follow the hierarchy. First instance judge should follow the decision by the immediately superior court and not the high court because it is assumed that the court of appeal has understood, distinguished the case rendered by the HL.
2) Horizontal dimension: do courts bind themselves?
A decision of a court of appeal should bind itself.
A jurisdiction is bound by it on decisions.
=> Does the Supreme Court bind itself?
The mid-19th century the HL took the view that it will be bound by all his previous decisions. In 1861 the house changes his mind but the definitive statement of the position of the HL is usually taken from the speech of Lord Asbury in London Tramways v London County Council 1898. In this decision in 1898, the HL expressed the view that it was bound by his all previous decisions.This rule remains study for more than fifty years after. It’s a position very difficult to sustain for more than 50 years. But in 1866, it issued a practice statement where the HLassists the previous court free to depart from his own decisions. It’s interesting to note that this decision wasn’t made previously in a decision but in a practice statement. It should deal with only matter of practice rather than law.It’s argue that the question of the binding precedent it’s just a question of practice of law. Anyway in this statement the HL deciding to free itself but this statement should not be overestimate because in that statement which has written by Lord Gardner he wrote that the necessity and importance of the doctrine of judicial precedent is reaffirmed. But they acknowledged that this doctrine could read in back to time in justice in specific circumstances because it could restrict the proper development of the law by impeding the necessary evolution of law. But the text says depart from and doesn’t say other… The HL wish not to follow the precedent and not the other rule on decisions. The word use is departing from and no other ruling previous decisions. And they also said that this possibly to depart from previous decision should be exercised not too often. They should be specific reason to do.
This specific reason is that the earlier decision was influenced by the existence of conditions which no longer prevail and in modern conditions the law out to be different. Another reason to justify departing from previous decisions is the issue from public policy that is involved.
They want to sustain a certain legal certainty and they want avoid retrospectively the basis of contract law, tort law which are governed by case law. The HL also said that changes in the law should be preferentially come from the parliament because is it better equity to forty the consequences of the changes its act to law. The parliament can make instructions, can see what kind of changes new act will change in real life.
One procedural aspect:when lawyer think that precedent should be departing from then the composition of the issue they should be explaining why a change of precedent should be maid and they will be convinced to make this decision. The Supreme Court will be more judges who will decide if the decisions should be departed or not.
=> Does the Court of appeal bind itself?
The court of appeal is split in 2 divisions: civil and criminal div. The rules of precedent differ in some respect whether it concerns the civil or criminal div.
· Civil division: as a principle the court of appeal is bound by its own decisions. This principle was set up in that case Young v Bristol Aeroplane, 1942. The case which gave in doctrine that the court of appeal bind itself. It tells the principle but also foresees 3 principles exceptions to this principle :
- The first exception that is foreseen in this case is when court and counter to conflict decisions of its own. Two conflicting decisions and the court have to select one decision and so have to depart from the other one. Such a conflict should not appear since the court of appeal is bound itself but it might be that a conflict appear only later after the decisions was given that we realize it conflict with another one. The conflict isn’t seen in the first place. It has to see which rule of law is the better.
- The second exceptionarises when the HL of the SC makes a subsequent decision which is inconsistent with a decision of the court of appeal. It’s not really a conflict but an inconsistency between 2 decisions. This is inconsistency should be solved since both decisions should not stand a long time. The court of appeal should declare to follow one decision and should follow the decision of the HL, SC.
- Third exception:whether the court decision may should be not be bound by a previous decision which was given per incuriam. A decision given per incuriam is a decision which was rendered with false information’s that is to say when the jurisdiction decided a case without having totally the knowledge of what the law was.They missed a precedent of a statute law was applicable. We should not let this thankful decision be comparers for the court.
These exceptions were said in the decisions Young, they will be more exceptions to the fact that we have to follow our own decisions.
· Criminal division: the principle is the same. The leading case, young case has operated also for the criminal decisions. But the rule is more flexible when it is applied by the criminal division because it’s more important to protect the liberty of people than the stability of the cases. In such cases, justice is more important than certainty. Whenever the liberty of one person is in question then the court of appeal is allowed to depart from previous decisions more easy. So this is the rule that was set up in that case. There is a certain resistance from some judges in the court of appeal and in particular one famous judge Lord Denning who tried to establish the principle that the HL practice statement should also apply to the court of appeal.
Lord Denning in David v Johnson. In this case, we can see the opposition of Lord Denning. It concerned a couple which lived in a flat but the woman was regularly battered by her husband and this woman after having fledge the domicile she applied under the domestic violence act, she applied for an instruction ordering her husband to stop using violence and go out the flat. The earlier cases the court of appeal has declared that a person with a proprietary interest in some property could not be excluded from that property under this statutory act. There was a previous decision. This husband argued on this previous decision. If the court of appeal will to follow his own previous decisions then they should not issue his previous decision. The court of appeal declared that it was free to depart from his previous decision and therefore allowed the woman’s application to order an injunction to husband to quit the flat. Lord Denning writes that the court of appeal should apply the same guideline as the HL and not to follow his own decision.
One of his colleagues agreed also that the court of appeal should be able to depart from his previous decision. The court should not be bound but expressed his idea in a different mind. Lord Denning argued that if an error has been made then this court (of appeal) has no option but to continue the error and leave it to be corrected by the HL. But the problem is that he HL may never have the opportunity to correct the error. And so this error maybe perpetuated indefinitely. The argument made by Lord Denning is that if we don’t follow the previous decision the error will be perpetuate.
His colleague said that it should not be adopted as a principle that we are able to depart from our decisions but we should just hunt another exception lay down in the Young case. This exception would be that if applying a previous case will entrain a serious mischief or abuse then we should be an exception not to follow the previous decisions. The HL agreed with the court of appeal that an injunction could be granted but disagreed on the use of precedent saying that the court of appeal had been wrong to deviate from the exceptions lay down in the young case. Still today the young case principle is applied.
=>Do lower courts bind themselves?
As to the lower courts it’s somehow more complex the high court may act either as a first instance judge. The depending of this rule of binding precedent would be different. When a high court exercises its jurisdiction at first instance then its decisions are not binding upon itself. There is however a tendency to follow his own previous decisions but here the previous decisions only play a role of judged have… Court of equal jurisdictions doesn’t bind each other. The judges are tented to follow his own decisions given the principle of judicial comity but isn’t commentary.
When the high court exercises its jurisdictions at the appeal level then the decisions of the courts are binding upon themselves and upon the lower courts. In that case the rule is applicable to the court of appeal then applies for the high court.
At which level the high court exercises his jurisdiction?
High Court: supervisory jurisdiction.
Previous decisions have a strength persuasive authority. The principle that this is the judges feeling we should trust what other colleague has made. Appeal level: the same rule is applies for the high court but it applies also the 3 exceptions.
Then, there is also another kind of jurisdiction that the high court can make. The high court made serve at a supervisory jurisdiction. We speak about supervisory jurisdiction to describe the fact that it’s not the fact that is judged by the high court but the decisions making process. The judicial review is thisexercise the high court as a supervisory jurisdiction, exercise the judicial review. A review is a means of challenging the legality of a decision make in a process. The judicial review doesn’t look at the Maries. It’s not bound by another decision of a divisional court. There is 3 divisional courts in the high court. And finally, we have still free our courts below the high court. There are bound by these decisions, they aren’t bound by its previous decisions, the lower courts. The previousdecision has still a persuasive decision.
Since the doctrine of binding precedent is of the almost importance how case law is built is to explain what built the English system.
II) The doctrine of binding precedent or stare decisis :
Stare decisis means to stand by decisions so it means that all courts bind all lower courts and bind themselves so stare decisis is strictly the synonym of binding precedent. We should not think that everything is binding in a decision. What really stands in a decision?
There is a crucial distinction to make between the ratio decidendi of judgment which is the binding part of the judgment and so the other part of the judgment that we call obiter dicta.
A) The ratio decidendi :
The ratio decidendi can be defined as the rule of law upon which the decision is based. A ratio means reason and decidendi of the decision; it’s the legal reason of the decision. The ratio decidendi isn’t the decision reached in a case but the law in the decision. We can also defined that any rule of law expressly or inclementlytreated by the judge as a necessary step in reaching his conclusions that is to say that the rule of law isn’t always expressly stated in the decision and so this makes very difficult the finding of the ratio decidendi.
=>How to find the ratio decidendi of a case?
Judges don’t mention in their decisions the ratio decidendi. This isn’t something which is the specific write of the judgment. Indeed the big part of the work of the lawyer is to find the ratio decidendi in the decisions. What is the ratio in this case? Their job is to identify the ratio in the cases. Sometimes there are various possibilities of what is the ratio decidendi in the case.
1) Identifying the material facts = identifying the appropriate level of generality or abstraction:
The more abstract the statement of the fact is the greater of subsequent cases will form in the principle.
Example: Donoghue V Stevenson in 1932. It’s about a bottle of beer and a snake. She was a Scottish woman, she was in a bar and a friend of her bought a bottle of beer and she drinks the bottle, she realized that there was a discomposed snake in the bottle. The specific problem here was that on the legal formulae she didn’t herself bought the bottle. She didn’t have a contract with the bar tender, with Mr Stevenson. There is a different of liability if we have a contract or if we don’t have the contact. The problem was whether in the absence of the contract. There was no such a general rule to say that we should to sell the good product. In this decision the HL decided that there is a duty of care that a bar tender has to words his consumes. This is a liability justify by negligence. How this decision has be used for other cases?
For instance, if you think that the duty of care was established only when beer was sold then you will limit the application of this rule to only cases where beer was sold.
Would the solution be same for lemonade?
The lawyers have to ask themselves would the decision be the same with a different fact. The ratio for that decision is not line to the fact but it was beer. This material fact concerns any drink and not just beer. The fact of this decision should be understood that there was a duty of care of the bar tender. If the case is to be read only if it wills concerns the ginger beer we would be have another ratio.
If case read to concern only ginger beer =>narrow ratio.
If case read to concern food and drink =>wider ratio.
The judges don’t necessary themselves explain that this case should be applied to other circumstances, this is the task of lawyers to understand what this fact should be drawn in order to make a rule of law in future cases.
If case read to concern manufacturing goods =>still wider ratio.
Reading a case might lead to different readings to find the ratio.
2) Identifying the issues raised by the parties:
To find the ratio you should find the legal issue raised by the parties. The legal issue was here in that case the liability of the bar tender, of the seller.
3) The arguments:
The arguments that each party used for the case should be analyzed. In our case the arguments of the defendant mister Stevenson: he argued that a tort of negligence doesn’t exist by itself. Argument of the plaignant: Mr Stevenson should have been more cautious in selling its bottle.
4) The solution:
It’s that there is a possibility of liability for negligence. Finally what really is the ratio decidendi of the case?
A decision may have a lot of ratio. And does happen frequently if a judgment is based on more than one line of reasoning then both ratios will be binding and a court cannot pick a choose. They use different legal reasons.
Both ratios will be binding: the court has to follow the both ratios in this case. Multiple ratios are lightly to occur since in appeal court there was always more than one judge. Each judge may render his own judgment.
Different reasoning => different ratios. In England, the judges speak with the first person. Different opinions, different judges made by several judges in the charge of the case.
The ratio decidendi should be distinguished from the obiter dictum (obiter dicta). Not all elements of a decision are binding. What is binding is the ratio and what isn’t binding is the obiter dictum.
The obiter dictum is an element of the decision which is a statement of law but which hasn’t been used to justify the decision. Obiter dicta are legal statements but which aren’t basis on the decision, they are stating in passing.
It still interesting to see obiter dicta in a decision since or may have some strength; they may be used in a future decision to what has an element of the reasoning.
B) Handling ratios:
In certain circumstances, previous decisions should be followed and in other circumstances previous decisions should not be followed. An earlier decision is said to be followed in a little case. Following of a decision where the facts of two cases are sufficiently similar to convince the judge to follow this case.
Then it is also possible that an earlier decision will not be followed when they are different cases. An earlier case has be doubted or even disapproved when the fact are the facts of two cases are sustain the case but judges have decided that the decision should not be follow. Another ruling: a decision is said to be overruled when a court wishes that this case should not be follow anymore.
=>When a court may not follow an earlier case?
The most significant technic is distinguishing on earlier case. It’s simply away or says that it is a relevant to the current case. It can try to distinguish the fact and can said that the fact aren’t the same, aren’t similar so I haven’t to apply the same decision. They are distinguishing the material facts. Sometimes, it’s down just to avoid the application of one case when the judges are clever in their statement of the fact.
The per incuriamdoctrine: whenever a decision is taken on the trunkful basis. The court didn’t have the information or they didn’t know a decision or a statute. Then it permits the court no to follow the ratio. And another signification of the doctrine is to say that the decision if it had been taken we haven’t been the same. Then, the final doctrine is the changes circumstances doctrine, this is a doctrine which justify that a court will not follow a previous decision because the circumstances has changed and it’s legitimate to change the rule of law.
III) What is the nature of judge-made law?
What is this kind of law that judges are creating? 2 aspects are interesting to note and to be addressed:
- the question whether judges when they render their decisions whether they discover or whether they create a rule of law. This question relates to the legitimacy of the judge-made law. Indeed judges aren’t elected so they shouldn’t have any legislative power if we accept the doctrine of the separation of powers.
A) Discovery or creation of the rule of law?
The declaratory theory
If we accept this doctrine we should ask ourselves what judges are doing to apply the rule of law that they are making?
The declaratory theory: doctrine in the 19th century. It means that when judges make decisions, they are merely declaring what the law is and what it has always been. Another way is to state that the decisions of the court are the evidence of law and not the rule of law by itself.
=> The declaratory theory means that the judges discover what the law is that they don’t make it.
Blackstone lived during the 18thcentury, he is famous because he wrote the commentaries of the laws of England in 1766. He was the first to write a treaty on English law, the first book to explain what law was at that time and his commentaries were used in the USA to explain the law there and these commentaries are still today sometimes important in the USA.
He is said that “the judge isn’t delegated to pronounce a new law, but to maintain and expound the old one”. The judges don’t pronounce the law but just say what it is.
He presupposed that the law exists before it is put into words but this theory explained, justified that judgment law is retrospective.
=> This theory helped in justify that there was no problem of legitimacy at all.
=> This theory helped to justify that the court decisions could apply even to facts occurred before the decision was given, rendered. They just declare what the law was.
DDHC => it’s the idea that judges are declaring and not making the law is the same conception that the revolutionary.
It might seem a little bit hypocrites to say such a thing. There is a creation; it was criticized in the 19th century by John Austin in the “childish fiction”. For this kind of jurist, it is obvious that judges are creating law and furthermore it’s a denial of responsibility for judges to deny that they are creating the law. They don’t recognize what they are doing. One of the most several critics comes from the judiciary.
Loid Reid => it’s a fiction.
The fact that judges are creating law is not so disturbing because the area of case law is contract law, tort law and property. These areas of law don’t really affect public interests. The issues which are affected by case law are issues which don’t generate public interest.
We should remind that in any case statute law may reverse judicial law, statute law may always abolish a decision by setting new rules which not coincide with decisions. New principle that other rules a judicial decision that means, what only decisions which parliament is reeling to tolerate will have long term existence. These nuances help to accept this declaratory theory and the fact that the judges are making the law.
B) Judge-made law operates retrospectively:
We usually not accept that in statutory law.
When the court declared what the law is there are also in the meantime declaring what it was at the time of the transactions or evens giving rise to the litigations in question. When the judges are saying, this is the rule of law that should be applied in that case, they are saying that this was the rule of law existed.
=>The law, as it is now declared to be, will affect all previous situations.
=>Difference with statutory law.
Provision at the end in the statute to say this statute will be applicable in a certain date, in the absence of such provisions, when the statute enters into force, it was the day of the Royal Assent. This is different of case law applies.
Ex 1: Kleinwort Benson Ltd v Lincoln City Council (1998)
In that case, parties, a financial institution and a local authority. The parties are entered into a financial agreement none as an interest rate swap agreement and when they entered into that agreement at that time to entering to that agreement it was lawful a city council could enter in that kind of agreement.
But in a previous decision, in a decision dating of 1991 the HL held that when entered into by local authorities such transactions weren’t lawful. In that decision, the legal issue was whether what was now seen to be a mistake of law was a good ground for allowing recovered of the money which had previously change hands.
The solution depended on whether courts will apply that decision to facts that occurred before this decision was rendered. The HL held that the contract was void and so ordered the restitution.
Ex 2: R v R (Rape : Marital Exemption) (1991)
Mister R had been charged with attempting to rape his wife and for his defends he argued on 2 different legal arguments.
English law didn’t recognize the possibility of a man raping his wife and so he couldn’t be an offense to attempt to rape her. He relied on 2 legal principles:
- Sir Matthew Hale’s statement 1736.
- Sexual Offences Act 1976.
He argued 2 things:
- Previous case dating from 1736 said that a man cannot rape his wife, his wife has accepting to be married.
- A rape is committing when he has unlawful intercourse. It’s a lawful intercourse so it’s not an offense.
He pleaded guilty. The judges weren’t convinced by these arguments. On appeal both the court of appeal and the HL held that the husband should be convicted. The HL changed the previous case but they justify themselves by saying that the modern view of marriage and of equality within marriage means that the old rule of 1736 has become offensive to the point where it can no longer be sustained.
This husband thought that it was lawful but by recognizes it wasn’t, the judges create a new liability. It’s a problem with some text that a new rule is apply to a fact that when that fact has committed the person didn’t know what the law was, it can creates problem with article 7 of European convention of Human Rights (ECHR). There is a strict principle which says that no one should be held guilty of any criminal offense an account of any act or omission with didn’t constitute a criminal offense at the time it was done. It’s an important principle.
The European Court of Human Rights which considered the case found no problem, no bridge of the convention because the defendant here could reasonably have foreseen that the law would be changed.
Some academics are thought that was where the retrospective effect could be avoiding it.
=> Proposition: prospective overruling. It’s just an idea that courts should not necessarily apply the new rule at the state in the case they are considering.
Rétroactivité des revirements de jurisprudence: propositions to try not that the decisions the new rule of law will not be immediately applicable but only in the future. It’s a proposition done in France but not in England.
IV) What are the advantages and disadvantages of the stare decisis doctrine?
=>Degree of certainty upon which individuals can rely in the conduct of their business since like cases are treated alike. And since the decisions are very detailed, future litigants know witha great degree of certainty what the decisions will be.
=>Greater flexibility than codify law because courts can create a new precedent each time it has to solve a new case.
=>A better understanding of the decision: the decisions are very detailed, it’s easy to understand.
=>Particularity of the case makes that the solution that is found in that case is unduly influenced by a desire to do justice and not necessarily to create the best rule of law.
=>Rigidity (to modify the law) it’s kind of difficult no to apply a previous case.
=>Complexitysince there is a hugeamount of cases and no statement of principle so it’s hard, complicated to find the principle of the decision the ratio decidendi.
=>Not rational because it may lead to illogical distinctions maid only to distinguish a former case that has become unsatisfactory.
=>No systematic development of the law, if you need to know all the cases then no systematic development of law.
=>Social discrimination: if you need a new rule, if you want to change the rule, you have to appeal and it costs a lot of money.
=>Lack of appreciation of the impact a decision may have.
=>Retrospective affect: it’s not so well in comparison to statute law, it’s not compatible with the principle of justice.
=>Undemocratic:the one who are doing the law aren’t elected by the citizens.
Chapter 3: Other domestic sources of law :
In ordinary language, equity simply means fairness but in English law it applies also to a specific set of legal principles. Nowadays, equity has also a particular meaning in the financial world; it means the value of a company.
Businessman spoke about private equity meaning the money of a corporation which isn’t public (capital d’investissement). But the meaning that we will interest today it’s the meaning of a specific set of laws. Set of legal principles was developed in opposition to the edification of CL.
A) Historical developments:
It’s a particular branch of English law. It’s not outside the law as we could consider with our French as. But this particular concept must be understood in the light of these historical developments.
The beginning gets back to 1066 with the invasion of the Normans. The Normans introduced the itinerant justice to travel around the country to give justice. They gaveled together and spoke about the solutions;they built the itinerant justices which construct the CL.
· CL => writ = set out the cause of the action = the grounds upon which the claim was made. We need writ to go before the court. If there is no writ available there is no claim possible.
When a writ didn’t exist until the 13th century the judges agreed to issue new kind of writ but from the 13th century on, they stopped to use new kind of writ.
· CL: only one remedy: damages. When someone has a claim, the only way to repair is to allow him or her damages. But damages aren’t always the appropriate solution.
=>Inadequate. For example: a party has been promised the chance to buy a piece of land but then the seller didn’t want.
They petition the king who was considered to be the “fountain of justice”. Only the king could bring to these people the good solution. They try to get some redress for their wrong.
He passed his claims to the Lord Chancellor => court of chancellery. He was usually a church man, a man who was considered to be the king conscience. Litigants’ parties began to petition the chancellor directly and by 1474 the chancellor began to make decision of the cases on his authority. The decisions were rendered in the name of the Lord Chancellor.
How did the court of chancery work?
Litigants appeared to the chancellor, he questions them and he would render a decision based on his moral view. The decisions rendered by the Lord Chancellor were made on his conscience, what he found was best.
· No strict rules of procedure:The chancellery court can also make oral witnesses. The procedure was easier than a procedure before CL courts. The procedure was established by oral witnesses could be heard, the parties could be directly questioned.
· Decision made upon conscience: they didn’t need to apply the CL.
· He decided to offer some remedies. He could enforce rights not recognized by the CL. He could order a decree of specific performances (execution forcée) which is something wasn’t still possible in CL.
· Critics :
- Arbitrary: risk that decisions will be arbitrary because case is just considered on a view.
- Solutions unpredictable: the solutions were quite unpredictable.
The court of chancellery were still popular, the CL courts made all these critics to words the chancellery courts.
A conflict could also appear between the solution between the chancellery courts and CL courts.
- Risk of conflicts with CL law rules:
=>The Earl of Oxford’s case (1615): equity prevails. The king decided that equity should prevail when there is a conflict between the 2 courts. The revelry between both systems continued and the chancellery court in the 16th century begin to be more criticized. To the contrary of how it’s begun, equity courts began to follow their precedent and they began to follow the system of the binding precedent. The system began to be less flexible than it was before. Moreover the court was overwhelmed with cases and the absence of strict procedural rules made the litigations ends. The procedure becomes more and more slow and expensive.
These critics grew until to attempt a reform which was proposed in the beginning of the 19th century but until the end of the 19th century nothing was really done.
Common law courts and chancellery court could merge: it’s the fusion troughthe Judicature Acts of 1873 and 1875. It provided that equity and common law was applicator to the 2 courts. CL courts could also apply equity and the chancellery courts apply the CL.
Wewsill have 2 bodies of principle but only one system of court.
They are some several principles in equity but by all courts may apply. Equity remains a specific branch of law but which is administered by all courts.
B) Equity today:
The judicature acts didn’t merged the equity and the CL, it still exist: rules of equity system and rules from CL system.
The principle that equity prevails on CL is still in force. It was writing in black and white in the judicature act and now this principle is in the Supreme court act of 1981.
It relies on certain maxims designed to ensure that the outcome of the case is really fair.
1) Equitable maxims:
· “He who comes to equity must come with clean hands”.No claimant can get an equitable remedy if he has done a wrong before and a wrong that there is a relationship with this claim. He shouldn’t be able to get an equitable remedy.
· “He who seeks equity must do equity”. That means that no person can get an equitable remedy if he or she refuses to act fairly to words it opened.
Basically both maxims express the same idea. However, these 2 maxims apply in different times.
=> The first maxim is applied to the behavior of the claimant before he or she brings the claim, that means that before bringing the claim he should have behaved fairly. For instance, in the case D&C Builders v Rees (1966): in this case a small company has worked on the else of a couple and when the work was done the builders claim to the prize but the couple refuse to pay the entire prize saying that the worse was flowed, the job hasn’t be done correctly. The builders didn’t accept this some but they accepted this limited amends of money but after having accepted, they want to have the rest of the prize. The couple opposed this claim by invoking an equity principle to oppose the doctrine of estoppel means that you cannot receive in a way that create an expectation for somebody else and then change your mind.
It was decide that the couple hasn’t behave fairly enough to be able to be invoked this legal argument, this doctrine of estoppel.
=>Chappell v Times Newspapers Ltd (1975): employees of the newspapers have been threatened to be fired if they didn’t stop it. They ask the court for an injunction preventing the employer from firing the employees. The court was ready to issue the exemption but only if employees accept to stop their strike after the injunction was granted. The employees refused so the injunction was refused. The second maxim was used. As they said that they wouldn’t stop the strike, they wouldn’t behave fairly in equity, the equity remedy could not be issued because during the process employees show that they aren’t agree.
· “Delay defeats equities”. If a claimant waits too long before bringing his action then he cannot claim an equitable remedy anymore. Leaf v International Galleries (1950): here the claimant bought a painting described by the seller as a gaining constable and five years later, the claimant discovers that the painting isn’t constable. He claimed the equitable remedy of rescission (nullité). He asks to have his money back. As he waited five years before claiming it was considered to be too long and so this equitable remedy wasn’t committed.
Where a claimant case relies on a rule of equity rather than a rule of CL that rule of equity can only be applied if the maxims are satisfied. In CL there is nothing of that sort.
2) Equitable remedies:
In CL, the only remedy possible was damages. And the written while equity developed in chancellery courts was because other remedies were given by the chancellery court.
- Injunctioneither ordering or forbidding the defendant for two some things. There are different types of injunction:
=>Mareva injunction: injunction freezing the assets of the defendant that is prohibiting him for disposing of his accept or removing them from the court’s jurisdiction.
=>Anti-suit injunction: prohibit someone to bring a claim before another court. For instance, the judges in London prohibit the defendant of bringing before another tribunal in England. Whether he can do when the defendant has brought his claim before a foreign tribunal. A German and English are entered into a contract, they have chosen that in case of dispute the tribunal which should know the case, solve the dispute will be a tribunal in London. A dispute arose between them; the German party doesn’t respect that clause and bring the claim before a German tribunal. The English businessman will go before the English court and ask for a anti-suit injunction. It’s really something specific to CL system.
- Specific performance (executionforcée): orders the defendant to perform the contract he has bridged.
- Rectification: orders to alter the terms used in a document if they are erroneous and if they don’t reflect the real intent of the parties.
- Rescission (récision): it’s a sort of amendment of a contract and it restores parties to a contract to the position they were in before the contract was signed.
There is actually a discussion within English jurist about the possible murder of these remedies in the CL set of rules. There is a discussion some are for some are against the fusion meaning that what is it needed? These remedies don’t make the distinction between equity remedies and CL remedies. It’s a specificity of the equity system.
3) Legal concept created in equity: TRUST :
There is no real equivalent to trust in the European civil law system. In the recent years, France has adopted the fiducy in 2011 which is a concept closed to the trust.
It’s a CL institution.
A trust is created by a person, that is called the settlor, that transfers some property to another person, who is called the trustee, for the benefit of another or others persons, called the beneficiaries of the trust.
Ancestor: the USE:
The ancestor of the trust was called the use and the use was the same institution but only the name was different. It’s when a person who are named the feoffor has transferred the legal title to some property to another person (feoffee to uses), for the benefit of some other person, called the cestuique use.
It emerge when the knights enrolled in a crusade before leaving the country they were often given the title of the property to a friend or relative in order for that person to take care of the property in his absence and for the benefit of his family. But sometimes this relative who was given the legal title didn’t act in a fair way and chasing the family away. The legal title of the property was in the hands of this relative.
Only the legal title means that you had the property. CL courts recognized only the legal title and not the act which said that the feoffee to use should take care of the property. If family wants to be protected by courts, court denied because they haven’t the legal property.
If CL didn’t recognize their rights then the only solution that they had was to go to the chancellery court. They went to the chancellor to get some redress and the chancellor accepted to enforce the obligations undertaken by the feoffee to uses.
=>Created a new form of ownership:the equitable ownership. It was recognize that 2 types of ownership could exist: the legal title and the equitable ownership.
This institution of trust comes from that time. The problem was that the king is opposite.
This new equitable ownership would deploy him of his feodo rights. The king tries to get read of this uses.
=>The statute of uses:
The statute didn’t abolish uses but whether was comfort the legal title to the property to the beneficiary of the use.
Dead only with land… and speaks only of “a person”.
It spoke only about a person. The transfer of a property which wasn’t a land was possible and the feoffee could be a corporation because it wasn’t a person and statute speaks just about the person. The statute didn’t put an end to the practice of having uses.
For which purposes is the trust used?
- Succession: it’s the trust for succession purposes. In a will it is often used when a father has his children and upon his death a certain price of his property should be transferred to a trustee for the benefit of his children until the rich of 25.
- Commercial purposes: when 2 companies want to carry out a big project together they may create a trust where they each transfer some good to the trustee for the purpose of carrying out the activity which the trust has been set up.
- Charitable trust – purpose trust: a kind of purpose trust. In that case, the trust isn’t set up for a benefit of a specific person but for the completion of a specifically. For instance, a trust may be set up for the benefit of a category of person.
Can it be created outside a declaration of will?
Yes it can.
- Express trust (will): it is a voluntary trust, a trust set up to the will of one person.
- Statutory trust: trusts which are set up by the operation of law.
- Constructive trust: when courts decide that the trust has been, it’s constructive trusts (interpretation), they are constructed by a court that is to say that courts construct the will of parties. They said that they remark that such person had wanted to set up one trust.
Hague Convention(La Haye) on the Law applicable to the Trust:
This is a convention which was made in 1985 which enter into force in 1992 and as it named suggest, it determines the law applicable to trust. Even if a country doesn’t know the legal concept of trust, it mightrecognize the trust if it uses this convention.
For instance, when a North American sets a trust over a house in France, this convention will determine what is the law applicable to the relationship between the set law, and the trustee and the trustee and the beneficiary.
II) Custom and soft law:
The custom was the basis of the CL. When itinerant justices rendered their decisions at the beginning they based them on customs but of course nowadays this is quite worn that the decision has a legal basis of the decision.
Defined in the Tranistry case (1608) as “such usages as has obtained the force of law”.
- Time immemorial: continuously. It should have been satisfied continuously.
- Reasonable, clear and certain, consistent.
- Exercised as of right.
The role of custom is very small; the only area when custom is used is in public international law cases.
B) Soft law:
It’s opposite to hard law and soft law. Soft law opposite to hard law means that part of law which isn’t binding. All that kind of law (primary legislation, secondary legislation, case law) is binding.
Besides some acts aren’t really binding, they are considered to be part of law => soft law. They are a kind of law but they are applied not because they are binding but because of their persuasive authority.
Ø Model Contracts :
Do you really enter in a contract by accepting an offer?
Every day we enter in a contract as a consumer and we don’t negotiate our contract. Model contract is what we sign contract that has been drifted in order to be used for thousands of people. Model contracts are contracts that are already drifted and that are used for many occasions, opportunities. If this model contract is entered every day in a lot of person, the rules set up in this contract are repeated, followed by all professionals and consumers. A way to impose some obligationsis to propose a model contract which is applied by a lot of persons.
Model contract are a part of soft law because the repetition of use in such contract may start the use of such contract may to apply for a lot of person, mechanism of repetition.
There is a real flow where English lawyers have the lead in the major of financial contracts. There are for instance two associations:
· ISDA: international swap and derivative association which provides model contracts for derivatives product, a model contract of swaps or currency swaps.
· LMA: London market association. As its name suggest it has sit in London and this association is very powerful in the law market. Almost all banks that will entry to a lawn agreement will use the model contract that the LMA has drifted. Such models aren’t free, they are expensive but it serves as a basis for the conclusions of law agreements.
By drifting such model contracts it’s a manner that they may implicitly give, set up some rules which are enterprises in that branch. Model contract is a kind of soft law.
Ø Model Law :
It’s not a domestic, national law but this is a text proposed as a model that states may choose to adopt, to modify and to incorporate in its own law. Model law is a text negotiated by representatives of nations and which deals with a specific topic. The model law that encountered so far the bigger success is the model law on arbitration made under the offices of the UNCITRAL: commission of international trade law. This Commission negotiates some texts on the international trade. One of his texts is the model law of arbitration. It’s not a convention it’s just a text which be drifting by different nations. It’s a proposal negotiate together. At the end of the negotiation they have a text and then the text may choose that take to proposal.This is just an offer. A lot of states have adopted the model law on domestic laws. It’s the case of different Common-Law countries: Canada, Australia, and England which adopted the text.
It has also Scotland adopted his own legislation on arbitration which was inspired by the UNCITRAL model law on arbitration but also with some slight changes. Model law is soft law, it’s not a binding text but it creates law.
Ø Private Code of ethics :
They play a certain role. This code which has drifted by private entities may be binding if a person or a category of person makes the statement that he or she will follow the rules of principles and trend in such code. This is an undertaking by certain persons to abide certain principles.
The MacBride Principles: non fair principles, kind of corporate code of conduct for US Companies doing business in NI which have to follow them. These principles aren’t binding but they are complete by US companies.
Code of conduct of the bar in England and Wales: Barristers in England have to follow it. It is made by the barrister themselves, it’s a private origin.
All these kind of text even if they aren’t binding they are part of English law because it’s becoming a part of soft law.
Chapter 4: International and foreign sources of law in England:
Nowadays, a legal system cannot be studied as if it existed in a closed space. This is a reason why we study international sources that may be applied in England by English courts. These sources are increase as it is the case in French law.
Ø A factual element:
Persons are traveling. This implies that courts in England may apply a law which isn’t its own law but the law of a foreign state if it seems appropriate to do. French courts as English courts don’t necessary apply their own law.
Ø Conflict of law rules:
To apply a foreign law courts will apply specific rules. This factual element corresponds also to a legal element states tend to conclude treaties which don’t only affect the states relationships but which also concerned private entities, citizens etc. More and more treaties concern the private relationships of citizens crossing borders.
This is the legal reaction of the factual element.
It seems relevant when we study English legal system also to examine such sources.
A treaty is an international convention concluded between countries, states. We may speak about bilateral conventions when there are 2 states.
A) Conclusion and ratification of treaties:
Who concludes treaties?
This is the government who has the responsibility for concluding treaties and more specifically this is the secretary of states for foreign and Common-Law affairs (ministère des affaires étrangères). The signature is the responsibility of the government and before2010 the Parliament ratified the treaties. Now it’s the government who decides to ratify and they didn’t need the authorization of the parliament.
Who ratifies treaties?
- Since the Constitution Reform and Governance Act 2010: new statutory role for Parliament in ratifying treaties. Under this act the government must lay treaties subject to ratification, before parliament for 21 sitting days before it can ratify them. Parliament must authorize ratification.Now the HL or HC may object the ratification and it may block ratification definitely. The treaty may never be ratified.
B) Application of treaties in England:
It doesn’t work in the same way as in France. Unlike many countries when England signs treaties, they don’t automatically become part of domestic law.Citizens cannot rely on them in proceedings brought in courts.
Then, why does UK sign the treaty if no citizens can invoke them before courts?
Even if it’s not possible for citizens to invoke, there is still an international obligation undertaken by the UK to incorporate the treaty provisions in its own legal system. When a treaty is ratified, when the UK took the legal international obligation then it has an obligation to incorporate these provisions into his own legal system. This is what recalls in international law dualism as opposed to monism.
English system is a dualist system. International legal system may not enter into the English legal system. For states which follow the monism then the international law may enter into the French legal system and don’t need to be incorporated in order to be apply by French courts.
When the UK signed and then ratified the Hague Convention on the civil aspects of international child abductions. The provision has been incorporated into the Family Law Act of 1996.
They are 2 treaties which don’t need to be incorporated to be applicable. 2 exceptions:
- European Treaties.
- Treaties on functioning of EU.
II) EU law:
It’s important in English law because the UK is part of the EU since the 1973. The same year, Ireland and Denmark joined also the European Communities. This was made possible through the European Communities Act of 1972which enable the joining of the European Communities.
It has changed some of his basis legal principles.
A) Source of EU law:
1) The treaties:
- TEU: Maastricht treaty (1992), the articles of this treatyorganizes the organs of the EU. There was the last modification in December 2009 with the Lisbon treaty.
- TFEU: which enables EU law to be produced (traité de Rome).
-Charter of Fundamental Rights: this is a treaty which state fundamental rights which was adopted in December 2000 but this charter didn’t have any binding legal force at the beginning, it was just a text. That changed in December 2009 when the TEU was adopted because section 6 at the article 6 of TEU provides that the Union recognizes the rights, freedoms and principles set out in the charter of fundamental rights. And article 6 says also that charter will have the same legal value as the treaties.
Both texts (CEDH and CFR) are sharing the same interest and share a number of provisions and there is a wish of consistency. Article 52 of the charter provides that in so far as this charter contains rights which correspond to rights guaranteed by the convention, then the meaning and scope of these rights shall be the same as lay down by the charter. Whenever the rights set out in the convention and in the charter the… there is a wish of a number states to say that if we recognize the same rights they should have the same meaning. It’s the primary legislation.
2) Secondary legislation:
- Regulations: (règlements)
- Directives: they aren’t applicable in the number states but they should be incorporated in the national legal system of each state.
- Decisions: they concern only individuals or a category of individuals.
- Recommendations and opinions (avis): they don’t have binding force.
We may say that when states undertake their obligation to incorporate to their own legal system this act undermines Parliamentary sovereignty. Some offers have a spoken about the..of parliamentary sovereignty.
B) Application of EU law by English courts:
A major part of EU law is applied by national courts.
1) Direct effect and direct applicability:
We should distinguish both.
=>Directly applicability (no need to incorporate them): it doesn’t need to be incorporated into a national regulation, statute. Regulations and decisions are directly applicable. It becomes part of EU law without any incorporation.
=> The direct effect is something different, it means that a provision of EU law create rights which are enforceable by a court of a member state. When a EU law has a direct effect, it creates a right for individuals and not only for the member states.
The national direct effect should be divided:
- The direct effect place between the states and individuals =>vertical direct effect. Vertical direct effect when an individual may invoke that text against the state.
- The direct effect may also be used along individuals. If a private individual has the right to invoke EU law against another individual then it is say that this act of EU law will have ahorizontal direct effect.
Regulations and decisions: direct effect vertical and horizontal.
=> The direct applicability and direct effect of EU law varies according to the type of legislation involved:
- Treaties: yes/yes
- Regulations: yes/yes
- Decisions: yes/yes
- Directives: No/?
Direct effect of directives?
The court of justice decided that a directive could have a direct effect but only in certain conditions.
· Vertical effect if:
- A directive may have a direct effect if the state hasn’t implemented the directive in the specific period of time.
- If a directive is clear enough and if it’s unconditional, it’s only individuals against a state or public entity but not private entity.
This has been decided in a famous case which implied a British citizen in the Van Duyn v Home Office (ECJ, 1974): it was Ms. Van Duyn who wanted to enter into the British territory but has been refused the right to enter in the UK. She was a member of the scientologist. She protested and she argued that this refusal to enter into the territory was contrary to the treaty of Rome and the government responded that the treaty of Rome allowed some exceptions on public policy grounds. The government justified his refusing that she belong his group of scientologist. She replied that a directive which hasn’t been implemented in UK, a directive says that refusal of entering in territory should be justify on individual ground.The government should be justifying the reasons. The case was referred to the ECJ and the ECJ says that Ms. Van Duyn has right when she rely on the directive even the directive hasn’t been implemented because the directive is clear enough and unconditional. It gave rights to this doctrine that a directive may have a direct effect but only a vertical effect.
2) Supremacy of EU law:
The principle of supremacy of EU law is not explicitly stated in the treaties but it has been pronounced by the courts, by the ECJ.
- Van Gend en Loos (ECJ, 1963): in that case ECJ stated that EU law was distinguishing from international law. EU law is an autonomous legal order.
- Costa v ENEL (ECJ, 1964): conflict between Italian la and EU law. In that case the court stated that (moodle).
- International Handelgesellschaft (sociétécommerciale) (ECJ, 1970): even if there is a conflict between German law and EU law, then EU law prevails even if it’s primary or secondary legislation.
These cases undermine Parliamentary sovereignty. The Parliament may do whatever act the only thing that the parliament may not do is to bind the ends of future parliament.
English jurisdictions should apply EU law when there is a conflict with a provision of a statute or an English regulation. Whenever there is a conflict between English laws, even the English courts should apply EU law and not national legislation because the act adopted by the parliament will not be applied.
English courts have the authorization not to apply English law.
- R v Secretary of State for Transport, ex parte Factor tame: Spanish fisherman argued that a law enact that has been adopted by the parliament; the merchant shipping act was contrary to EU law. There was a conflict between the merchant shipping act 1988 and EU law.
C) Supervisory role of the ECJ:
National judges are the one who apply the EU law. With 28 number states there is a risk that EU law may be interpreted in 28 different mines. It’s a wish for the very beginning to create the ECJ in order to uniform to say what the interpretation of EU law should be.
The ECJ may give his opinion to how interpreted the EU Law.
Need of uniform interpretation:
- Art 267 TFEU: procedure. Concerning the interpretation of the treaties there is preliminary rulings (questions préjudicielles).
Courts have the obligation to refer a question before the ECJ. Before the lower courts they have a choice when judges ask themselves but when they really should refer of the ECJ.
When should lower courts refer a preliminary question?
=>Bulmer V Bollinger (CA, 1974): the court of appeal through the voice of Lord Denning gave the principle of the abidance when courts should may references to the ECJ. When they have to take into account the expenses and the delay that have a consequence of such preliminary ruling and Lord Denning says thatcourt should refer a question when it’s a question really difficult and important.
It undermines authority of superior courts, the doctrine of binding precedent. Even the Supreme Court may refer, shall refer the question of application to the ECJthe decisions should be applied and are binding on the English courts. The doctrine of binding precedent is affected by the fact that English courts should apply the principles of EU law and not the binding precedent.
III) European Convention on the Protection of Human Rights and the HR Act 1998:
A) The non-direct applicability of the ECHR:
In 1950 the convention was adopted signed by some countries in Europe. Nowadays there are many countries which are member of ECHR: 47. The European Convention became binding in 1972.
A convention need to be incorporated in the English legal system to have effect. But for a very long time the UK refused to incorporate the convention. Consequently the convention wasn’t recognized by English courts as far of English law. Citizens in the UK who thought that their rights under the convention had been reached couldn’t claim their rights before domestic courts. They still could go in Strasbourg before the ECHR because the UK accepted in 1966 the right of individuals to bring their cases before the ECHR.
For a very long time English courts couldn’t apply the convention and citizens needed to go to Strasbourg. And if the UK was sanctioned then the government was expected to modify its law which violated the rights.
This lake of incorporation didn’t mean that fundamental rights could be bridged. Fundamental rights, freedoms were protected by the CL but in the CL way that is to say protection depended on individual cases. It didn’t bring really a sufficient amount of predictability regarding the protection of fundamental rights. A piece of legislation is protected: a statute delete a discrimination. But there was not a general statute protecting the fundamental rights. This changed in 1998 when the Human rights Act was adopted in 1998.
B) The Human Rights Act 1998:
This act incorporates the European convention. It incorporates the articles which protect fundamental rights and also the first protocol is incorporated. It has the effect to strength the protection of individuals.
What are the Convention Rights?
- The right to life (art 2). Provision which has been used in cases relate into about aversion.
=>Pretty v the UK (ECHR 29 april 2002): it was Liam Pretty, she was a British citizen and she was ill, a motor neuron decease, degenerative decease. There was no remedy for that illness. She wanted to be able to legally coming suicide with the help of her husband. She asked the authorities in UK to have that right and she wanted to ensure that if her husband helped her that he wouldn’t be prosecuted. The right of euthanasia doesn’t exist in the UK the authorities denied this claim. The claim was before the ECHR. She said that the convention protects the right to life. A corollary of that right is also the right to die. The court didn’t accept that arguments and refused to say that UK violated the article 2 when it refused to allow her to legally coming suicide.
- Freedom for torture, inhuman or degrading treatment (art 3)
- Freedom slavery of forced labour (art 4)
- The right to liberty and security of the person (art 5)
- The right to a fair trial (art 6)
- The prohibition of retrospective criminal laws (art 7): the no member states may adopt criminal laws that would be retrospect.
- The right to respect for a person’s private and family life, home and correspondence (art 8).
=>Christine Goodwin v the UK (ECHR, 11 July 2002): the court said that a transsexual, a man who became a woman has the right to marry a person of the opposite sex. The question would be irrelevant since they have adopted the same sex Marriage Act. Before it wasn’t possible, it was consider that the changing wasn’t total change. Christine Goodwin won and the UK has violated the art 8 and the art 12 which is the right to marry.
- Freedom of thought, conscience and religion (art 9)
- Freedom of expression (art 10)
- Freedom of assembly and association (art 11)
- Right to marry (art 12)
- + enjoyment of these rights without discrimination (art 14)
- 1st Protocol:
=> The right to peaceful enjoyment of one’s possessions (art 1)
=> The right to education (art 2)
=> The right to take part in free elections by secret ballot (art 3)
How the Convention rights should be applied in England?
This isn’t only a copy based on the convention, this act states something else.
- English judges should take the case of law of the convention of Human Rights into account.Judicial duty to take case-law under the Convention into account (s. 2 of the act)
- English courts should interpret all legislation in a way which is compatible with Convention rights (s. 3)
- Declaration of incompatibility (s. 4) : it says that a court of the level of the high court are above have the power to make declarations of incompatibility where primary legislation conflict with convention rights. It affects the parliamentary sovereignty, the courts may make a declaration of incompatibility, it doesn’t mean that the court won’t be able not to apply legislation but just make a statement that this legislation is incompatible with Convention rights. They need to change the law to make it compatible with convention rights.
- When a statute is about to be adopted then the government, the ministers should make a statement of compatibility of that Bill (s. 19)
- Vertical and horizontal effect? (s.6) whether they could have a horizontal effect or just had a vertical effect.
There was some doubt about the horizontal effect of the convention because section 6 of the HRA provides that it is “unlaw for public authorities to act in a way which is incompatible with Convention rights”. It should have only a vertical effect because only public authorities but some other said that courts are a public authorities so they apply the convention rights, that means that it’s also an horizontal effect.
Horizontal effect in Douglas v Hello!  EWCA Civ 595: when he was married they were contracted specific magazine but some pictures of the weddings were published in Hello! The question was whether the couple could rely on art 8 which protect the right to private life. The court of appeal relate on art 8 of the convention to say that art 8 was applicable, it could be evocable by individual against individual, so it had a horizontal effect.
=>Compliance with case law of the European Court: the act says that English court should take into account a case. The problem was real in a case where in a decision:
- R v Saunders: the court of appeal accepted some evidence in the criminal case. But that person who had been condemned on the basis of that evidence brought his case before the European Court saying that to admit such evidence was unlawful and violated to art 6. The European court agreed with Mister Saunders saying that admitting such evidence was a violation of art 6 of the convention. When the same fact arose in 2 different cases in R v Morrissey and R v Stainesthe court of appeal was faced in difficult problems. It had 2 different cases: they apply the precedent of the domestic court and apply a solution that already had been sanctioned, condemned by European court. Because of the lake of binding precedent then inconsistences may apply and judges may be confronted into difficult to choice.
=>Legal status: the HRA is a simple act, an act as any other act; it doesn’t have a superior force than other acts. It’s not considered to be part of the constitution. That means that any act maybe removed by another act. It’s very existence to put into danger because it’s not considered as constitutional law. Nobody can be guaranty that this act will not be repeal one day.
C) An illustration of European court decision and the English response:
=> Prisoner’s right to vote.
- ECHR hirst (number 2) v the UK, 6 October 2005: judgment given by the grand chamber. A prisoner who had been convicted in England and pursued to English law because he was a prisoner and he couldn’t vote, he couldn’t participate to any elections. He claimed that he is right to vote, it’s a right protected by article 3 of the first protocol of the ECHR. His right was violated because he is ban on voting. The European court found that the applicant before the European court had been subject during the time and due to his statutes as a convict prisoner so that this person had been subject to an discriminate restriction and his right to vote. The court held that there had been a violation of the ECHR. The court didn’t make any reference to disenfranchisement and it was a violation of article 3. Section 46 of European Convention provides that the state should perform, enforce the decision of the court. As a result, UK should do something when it had been condemned by the European court.
=> Response of the UK government:they would take an action plan for legislative reform, in other words, they promised to do something about the act that prohibit prisoners to vote in England but it was just a promise. There is a specific body in the Council of Europe: the comity of ministers. It’s the body which controls the execution, the enforcement of the courts decisions.
Dec 2009: no action was taken. The comity of ministers expressed serious concern about the delay in implementing the judgment.
Because the comity of ministers saw that UK government didn’t make anything to comply the decision, they accepted a new case:
- ECHR Greens and M. T. v the UK, 23 November 2010: the same question was asked to the court. Whether the legislation imposing blanked ban on voting in national European elections for convicted prisoners is violate or doesn’t violate the first protocol?
The decision was easy to take for the European court, same problem, same solution. The court said that the UK violated again the article 3 of the first protocol.
It begins more and more urgent for the UK to try to do something to demonstrate the wish of make some changes.
The court wanted to warn the UK. Next time, the court will have the same request from prisoners then the court might take a pilot judgment: specific procedure in European court.This is a procedure developed in order to identify the structural problems underlying repetitive cases against one or several countries and imposing an obligation to state, to address those problems. It’s one judgment for many cases => the pilot judgment. The impact of this pilot judgment is very big, very intense it means that a state has been (reelected ?) to enforce a previous case and that….
No state is reel in to have a pilot judgment against it. The court decided to adjourn more than 2000 cases concerning the same question: adjournment of examination of 2353 other cases. A lot of pressure was on the UK.
Finally, the government drafted a proposal to reform the existence legislation. In November 2012, the government published a draft bill on prisoners voting eligibility.
- The first proposal: to prohibit to voting sentence to 4 years imprisonment or more.
- Second proposal: a ban of voting the prisoner’s sentence to more than 6 months. Only the prisoners who were less than 6 months in prison can vote.
- Third proposal: proposal for voting to all prisoners.
It was noted by the comity of ministers. They would wait until the bill is examined by the parliament. The comity of ministers givessometimes: 30 September 2013. The bill wasn’t adopted in the Parliament.
David Cameron: “giving prisoners the right to vote would make me physically sick”.
The UK Supreme Court gains a decision:
- They argued that English law was incompatible with ECHR. They asked the court to make a declaration of incompatibility between the act which prohibit prisoners to vote and ECHR.
=>The Supreme Court denied this argument. => October 16 2013
- The second argument was based on EU law: they argued that provisions of the treaties should allow prisoners the right to vote and to prohibit the contrary to EU law : direct application of EU law (elections to the European Parliament and municipal authorities).
- The court said that the EU treaties don’t guaranty any right to vote paralleling that recognized by the ECHR in its case law.
- The Supreme Court said finally that eligibility to vote in member states is basically a matter for national legislatures.
· Bad relationships between English press and the ECHR :
Ex : “European Courts of human rights…” (the Guardian, 14 october 2013).
· Bad relationships between English politics and the ECHR :
Ex : “David Cameron…” (the Guardian, 16 october 2013).
IV) Foreign law:
There are many cases in England where English courts apply a foreign law.
A) Why should English courts apply foreign law?
A German and French being married => foreign situation. They do it in France before the officer, which conditions? Conditions of French law?Or German law?
It’s a case of private international law. In that sort of cases a foreign law may be apply by English Courts when there is a foreign element in the case. How will he determine the law that he should apply?
English courts apply more and more foreign law.
· Tolerance and avoidance of injustice. Ex: a French who will marry an Italian and they will get married only in church. They will follow the Italian procedure. They living in France after would they be considered married if they were marry only before the church?
· Comity: doctrine of comity. It says that if I agree to apply foreign law it’s very likely that judges will also accept to apply my law. It’s a reciprocity between states.
B) What is Private international law?
It’s not a body of international law. Almost all its sources come or came from municipal laws. Nowadays, in England the main source of private international law is EU law. It’s becoming more and more international.
Provides mechanisms for determining where legal situations have links to more than 1 legal system:
- What courts or other authorities should have jurisdiction.
- What law should apply.
- What effects should be given to decisions taken abroad.
C) Procedural aspects of the application of foreign law:
It’s not the same for a court to apply foreign law or English law. There is 2 difficulties:
- The court should know that the case has a foreign element. The court itself should ask the question whether or not it should apply foreign law: question which receives different answers in England. In England it is considered if none of the parties invoke the application of the foreign law then the court may be silent and take the case as if it was an international case. Need to plead foreign law.
- English judges may not know all the laws of the world, it’s considered in England that it is to the parties to prove foreign law. Need to “prove” foreign law.
How? Expert witnesses, a lawyer who will call to give a witness, a statement to explain what the sources of law on a specific issue is.
The judge examines the witnesses. In France, this isn’t the case (certificat de coutume). There are different traditions before English courts and French courts. In England, it will be asked to have someone to ask him or her questions.
D) The mean to apply foreign law: the conflict of laws rule:
Binational couple: what are the conditions to be married?
The case law, the doctrine elaborates some specific rules.
Examples of a conflict of laws rule in England:
· For capacity to marry: “As a general rule, capacity to marry is governed by the law of each party’s antenuptial domicile” (case law + doctrine). To connect the legal situation, the capacity to marry to one specific legal system. Domicile is a connecting factor; it has been brought by courts and the doctrine that the main important element of the situation of the couple is their domicile before they are getting married. With that rule, then the person who will marry the couple will know which law should be applied. If they aren’t domicile of the same state, it’s the law of Germany for example if they live in Germany.
There are a lot of international contracts. You would have three legal systems if it’s a contract between 3 countries for instance. The conflict of law rules that exist hasn’t been may apply but it’s the law of EU law for Regulation.
· Contract :
- Art 3 Rome I Regulation: the parties may choose the law applicable to their contract. The law may not necessary be linked with the situation. It’s just the wish of the parties.
- Absent such a choice: art 4 of the Rome I Regulation.
“1. To the extent that the law applicable…” Where the seller has his habitual residence. This is how courts may apply foreign law.
- How international law is applied in England.
- How EU law is applied in England.
- The notion of direct effect, (vertical and horizontal) and direct applicability; which acts are concerned.
- Hierarchy of norms (International law, EU law, English Acts).
- The role of the ECHR (convention and case law).
- The application of the Human Rights Act 1998.
- The application of foreign law in England.
Part 2 : the administration of justice :
Chapter 1: the Judiciary:
· Court different from tribunal:This isn’t a distinction in England. In England, we will study the court system. Besides the judicial system of courts, there is a parallel tribunal system.In tribunal, there is a less formal procedure however judges witting in the tribunal are expecting to conduct themselves according the same principles of justice us by the court.They should apply same principles of justice. The procedure is quite different. Many tribunals were created for having very specialized judges: for instance, the employment tribunal.
The justification of the distinguishes system of the court is thatwhen new rights have been created after the Second World War, new rights were created : for example the right to a school place, the right to unemployment benefits. The rules establish some limits to these rights. These needs to dispute for instance between employee and employers the possibility to emigrate. In a very specific area of law, tribunals have been created in order to go with that enormous work to be specialized. Judges would be very specialized and be able to give decisions very quickly. The advantage of these specific tribunals is that cases are resolved quickly and the procedural rules are more flexible than the one used in courts.
A court to the contrary, is where the law is applied and constructed and the development of the court system has been so long that today it’s quite complicated to understand and also confusing sometimes. Unlike what happen in France which destroyed the court system there wasn’t such a big ban in England, we can trace the history of courts.
· Judicial system: complicated and confusing. We should avoid making some parallels between French courts and English courts. For instance, it isn’t wear that one court in England is in the meantime a first case court and also an appeal court. It’s an exception in France. One court in England resolved the cases in civil law and in criminal law. In France, we have 2 times according to the type of litigation. The judges may sit in different courts and so it will be necessary to remember what kind of judge sit in what kind of court.
I) lower courts:
A) The Magistrate’s courts:
1) Types of cases:
Ø Criminal: 350 Magistrates courts in England and Wales deal nearly with 2 million cases per year.
o Summary offences: such as criminal damage under 5000£, can be dealt with by magistrates.
o Either way offences: such as theft of higher value, criminal damage can be dealt with either by magistrate’s court or Crown court.
o Indictable offences: such as murder, can only be dealt with by the Crown Court.
Most of the criminal cases involved sentences offenders who were pleading guilty. On the contrary, the work is bigger to have a verdict when they didn’t plead guilty.
Offenders can appeal against the decisions at the Crown court. In that case, a judge and different magistrates consider the case from the beginning.This appeal at the Crown court is possible only if it concerns the facts of the case but if the defendant is appeal from the magistrates on a point of law the appeal ruled is to the high court.
Ø Civil: they should go before county courts but magistrates make decisions on some civil matters such as enforcing council tax payment. A very limited area of a civil issue in the Magistrates courts. Cases involving family dispute and application by local authorities to take children into care, very few cases.
2) Who sits in the Magistrate’s court?
=>3 lay magistrates, or
=> A professional judge who sits alone: a district judge.
Lay magistrates are volunteers, they aren’t professional judges, they are local volunteers, and they are also called “justices of the peace”. Criminal matters are judge by no professional judges, they receive a legal education but they aren’t lawyers and they are doing voluntary and unpaid. These magistrates will treat the less serious criminal cases. When the case involved a serious criminal case the decision will be rendered by the district judge, it’s a fulltime judge, it’s a member of the judiciary. He usually deals with longer and more complex matters.
B) The Crown court:
1) Types of cases:
· Indictable offences (murder).
· Either way offences, where the defendant chose to be tried by the Crown court. It could depend on the choice of the defendant; the defendant may choose to be tried by the Crown court if he pleads not guilty.
· Defendants convicted in magistrate’s courts, but sent to the Crown court for sentencing due to the seriousness of the offence.
· Hearing some appeals from the magistrate’s courts.
2) Who sits in the Crown courts?
The cases are presided by either:
-A high court judge
- A circuit judge: circuit judges are appointed to one of seven regions of England and Wales andthese judges will sit either in the Crown or County courts. Lawyers who have held a right of audience that means the right to appear in court as aninvoquent.
- A deputy circuit judge
- A recorder: fee paid judge; he doesn’t receive a salary from the judiciary. His statute is very close from one of the circuit judges about the practice is that recorders don’t hear appeals from district judges.
The jury decides if the offender is guilty or not (not for appeal, in that case: magistrates).
C) The County court:
County courts deal with civil matters.
1) The cases:
Ø Civil only:
· Businesses trying to recover money they are owed;
· Individuals seeking compensation for injuries;
· Landowners seeking orders that will prevent trespass
· More complex cases involving large amount of money will appear at the high court. A part from the bigger one, the main civil cases are by the county court. Some county courts may also their cases in bankruptcy and insolvency.
· Wills and trust < £30 000
2) Who sits in the County court?
Most county courts are aside at least:
- One circuit judge: he raises more over 50 000£.
- One district judge
- Family circuit judge: some specialized judge which will be called the family circuit judge: dispute involving parents about their children.
II) The High Court:
The HC is divided in 3 divisions: chancery, Queen Bench, family.
The high court is in the meantime a first time court and an appeal court.
Presided by the chancellor of the high court and this division is assigned very specific civil cases.
The types of the cases are:
· Corporate and personal insolvency disputes.
· Business, trade and industry disputes
· The enforcement of mortgages
· Intellectual property matters, copyright and patents
B) Queen’s Bench Division (QBD):
Types of cases:
Civil: “common law” business. The CL business means contract and tort. Regarding the criminal matters, judges of the QB division hear the most important criminal cases in the Crown court.
It should be added that the QB division has also different matters which are specialized such as the commercial court and Admiralty court.
Judges who sit in the high court can hear all the cases relating to children. Judges in the high court also hear appeals from family proceedings court and cases transport from the county courts or family proceeding courts.
CIVIL:civil justice is date with the county court but also with the high court for the more complex cases. These civil cases may be heard in appeal courts where public may attempt. There are some hearings in the judge’s private room without any public and some matters are decided by the judge in private but on the basis of the paper alone without discussing with lawyers and parties.
There isn’t a jury, the jury almost disappeared for the civil cases, exception for label and slender. Hear before a jury.
- Crown prosecuted Service (ministère public): when he decides to prosecute someone or acknowledged crimes. Magistrates hear most of criminal cases but for more complex criminal case than it will be heard by a district judge sitting in a magistrate court for even more serious case the case will be heard by a circuit judge sitting in the crown court. And for more serious criminal cases high court judge sitting at the QB.
III) The court of appeal:
The appeals are heard by the court of appeal or the Supreme Court.
Criminal division and civil division: both are based in London but they have occasional meetings as wear in England and Wales.
A) Who are the Court of Appeal judges?
They are the heads of the division; the judges sitting in the court of appeal are called the lord justices, the lady justices of appeal.
They are usually experienced judges with a long experience and the appointment is made by the queen on the recommendation of a selection panel convict by the judicial appointment conviction.
B) Both divisions:
Does a right to appeal exist? Is this a fundamental right to make an appeal of a decision?
Everyone is convicted, should have the right to appeal that decision. The law has been changed in France in 2000 =>courd’appeld’assises.
This isn’t how it is in England. Bringing an appeal in England is subject to obtain permission. This permission may be granted either by the court which gave the decision or more usually by the court of appeal itself. This is also the case in the USA but only for the Supreme Court, the Supreme Court may give authorizations.
- The criminal division hears appeals from the Crown court and usually the bench consists of a Lord or a Lady Justice and 2 high courts judges. The criminal division is presided by the Lord Chief justice which is the constitutional reform act of 2005 the head of the English judiciary.
- The civil divisionis headed by the master of the rules and civil divisions may hear appeals from all divisions of the high court and in some instances from the County court and certain tribunals.
IV) The Supreme Court:
- The Supreme Court is the new name for that was before the HL. This has been changed by the constitutional reform act of 2005.
- Oct 2009: the Supreme Court replaced the Appellate Committee of the HL (the Law Lords). The reform was considered to be necessary because the previous system wasn’t compatible with the constitutional doctrine of separation of powers. The HL was at the same time one of the houses of the British parliament and the highest court in the English judicial hierarchy. It took some time to make that reform.
- They are 12 justices, they are called the justices. Usually they are 5 maybe 7 but they aren’t 12.
- The Supreme court hears appeals but only appeal of points of law of the greatest public importance.
=>For the whole of the UK in civil cases, and
=>in criminal cases for England, Wales and NI.
=>Cases on devolution matters
Some legislative powers have been devoluted.
V) The judicial committee council:
· Judicial committee Act 1833: the ancestor of the judicial committee is the private council, the council from which the king used to take advices.
· Commonwealth and domestic jurisdiction :
- Commonwealth: hears appeals from independent Commonwealth countries + from the Unites Kingdom’s overseas territories.
- Domestic: hears appeal from the Jersey and Guernsey: important appeals from the disciplinary, the Veterinary Surgeons act. Very few cases are debt with the judicial committee of the private council.
Before 2005, the cases concern the devolution process were brought to this council but since 2005 and in effect 2009 this devolution matters have been directed by the Supreme Court.
Chapter 2: the judiciary: the people:
(The legal professions)
The judiciary in England is very far from ours. There are differences between the English judicial system and ours.
Three main differences:
- A judge may sit in simultaneously in two courts. He is allocated to one specific court.
- There isn’t a strict separation of civil and criminal casesin the sense that a court such as the magistrate’s court may hear criminal and civil cases. In France, the courts are divided in criminal matters or civil matters. “Tribunal de police” will deal only with infractions and not deal with the civil matters.
- Appeal maybe heard by a court of first instance or by the court of appeal. Sometimes the high court which is also a first instance court will hear appeal from cases coming from lower courts. This is something that we don’t know in the French judicial system.
I) the authorities of the judicial system:
A) The Lord Chancellor:
He is one of the most offices of state (fonctionsd’Etat) taking back in many centuries. For centuries the Lord Chancellor played a vital role in the English legal system.
Before the Lord Chancellor was:
- A member of the government (executive power).
- Speaker of the House of Lords (law-making power). He was a member of the HL and he participated in the law-making process.
- Head of the judiciary + judge in the HL (judicial power).
The Lord Chancellor either appointed judges or recommended judges for appointment. He was simultaneously a part of the three powers which is something that could not be maintained in a democratic country. The situation ended late, at the beginning of the 21st century.
It changes with the Constitutional Reform Act of 2005:
The Constitutional Reform Act changed the role of the Lord Chancellor. It was suggested to delete, to eliminate the functions of the Lord Chancellor. It raisesa lot of oppositions. The function remained but of course his role has been changed by this reform.
- The role of the Lord Chancellor is to be the ministry of justice, the secondary of state for justice.
- Heads the Ministry of justice (secretary of State for Justice). The other functions have to be abandoned.
Under the Constitutional Reform Act the lord chancellor ceased to be the speaker of the Lords, he was replaced on his position by the Lord Speaker. In addition, he isn’t now the head of the judiciary. The head of the judiciary is today the Lord Chief justice. Consequently the Lord Chancellor may no longer sit as a judge.
His role is to be the ministry of justice.
- Uphold the continued independence of the judiciary. The constitutional reform act states specifically that the Lord Chancellor has to guaranty the independence of the judiciary and it should not seek to influence particular judicial decisions, he doesn’t participate in the judicial process but he guarantees that the judicial process is independent.
B) The lord Chief Justice:
He became when the Constitutional Reform Act come in force, the head of the judiciary of England and Wales. Before it was a role assured by the Lord Chancellor. That means that he is the president of the court of England and Wales.
- Became the head of the judiciary of England and Wales.
- Head of Criminal Justice (President of the criminal division at the court of appeal). Behind the president of the court he also may sit in different courts.
- Entitled to sit in Court of Appeal, High Court, Crown court, county court, magistrate’s court.
In France we don’t have someone who is the president of all the courts. There is the first president of the “cour de cassation” but not the same responsibility as the Lord Chief Justice.
The Lord Chief Justice has main statutory duties:
- Represents the views of the judiciary to parliament and government.
- He allocates resources for the judiciary;he is the one who decides what kind of resources will be used in the courts. He has a role in the training of the judiciary in England. A part depends of the decisions of the Lord Chief Justice.
- He sits in important criminal cases. He is the president of the sentencing council. It’s a specific body that we don’t have in France. Sentencing applies only for criminal matters, a part of the judgment with deals with the punishment. He plays a big role in criminal matters.
C) The Master of the Rolls:
It is the title of an English judge ranking immediately below the Lord Chief Justice. His name comes from his original function which was to be responsible for the save keeping of charters, and records of important court judgments. As important court judges were writing in Rolls (parchemin) the name of his function came from what he does. The Master of the Rolls is the civil justice of English and Wales. It’s the president of the civil division of the court of Appeal, he was being the leading judge.
It’s the head of civil justice (president of the civil division of the CA). He presides the most difficult and sensitive cases in civil matters. He is also a responsible for the organization of the work of the judges of the division.
D) The Attorney General and the Crown Prosecution Service (CPS):
- The Attorney General: member of the government who advices the government on matters of law. Moreover the Attorney General may prosecute in criminal matters. By statute the consent of the Attorney General is required for the prosecution of certain offences.
- CPS: created by Prosecution of Offences Act 1985 (before: the police force was prosecuting). This is a new body which was created to play the role of prosecutors to prosecute persons suspected to have committed offences. The body has been created only in 1985. It was the job of the police force; it was the body which prosecuted the persons suspect to have committed offences. Much power was given to the police force to investigate, to decide whether a suspected person should be brought before a court. This is the reason why the Crown prosecution service has been created in 1985.
- CPS: responsible for prosecuting criminal cases investigating by the police. The persons working in the CPS aren’t judges. In England, this function of prosecuting representing the interest of the society isn’t a function assumed by judges.
It also advice the police on prosecution and it prepares the cases for courts and also present criminal cases at courts. The CPS is under the supervision of the Attorney General. They would be an interference of the executive power in the prosecution. We could feel that the Attorney General has been received advice from the policy of the government.
The independence of the CPS is something that is respected and increased in England. That has been one case when a minister tries to intervene in a judgment. It has lost his independence. The lawyers working for CPS aren’t judges and for sometimes the CPS has some difficulties to recruit talented people.
There has been a changed in 2004 which allowed the member of the CPS to be appointed as judge. Sort of bridges has been created, it has become possible for lawyers working at the CPS to be appointed judges.
II) The judges:
A) Which judges? The diversity of judges in England& Wales:
Judges in England are only doing judging. In France, they aren’t only judging.
1) Justices of the Supreme Court:
- 12 Lords/Lady Justices (only one woman). 100 judges in the CDC.
- Most senior judges but very surprisingly in court they don’t wear neither a week or a gown in the Supreme Court.
2) Justices of the court of Appeal:
Judges at the court of Appeal are specialized; it’s not the case in England.
- Hear both civil and criminal cases.
- Who are they?
- Lord Chief Justice.
- Master of the Rolls.
- President of the QB Division.
- President of the family division.
- Chancellor of the high court.
- + Lord/Lady Justice of Appeal
- Appointment: by the Queen on recommendation of the JAC (judicial appointment commission). They appointed the most valuable lawyers.
3) High Court judges:
They hear civil cases. They are in London.
4) Circuit judges:
Just a circuit judge:
- is appointed to one of the seven regions of England and Wales.
- A circuit judge will sit in the Crown court and county courts for civil matters.
- Barristers and solicitors who have held a “right of audience” for 10 years. This is a right to appear in court as an advocate. There is continuity in the carrier and the most achievement for lawyer is to become a judge. This explains the link that exists between both professions. A circuit judges tempt to specialize in either civil or criminal cases and some are also more especially in area such as conventional law or construction law.
The circuit judge may sit in the court of appeal but only in the criminal division.
5) District judges:
- They will judge in the county court, only civil cases in a particular region.
- A district judge may also sit alone in the magistrate’s court for the most important casesthat may arrive at the magistrate’s court (civil and criminal cases).
6) Magistrates-Justices of the Peace:
- Nonprofessionals (28 000 volunteers) they decide to be involved in the community and to sit as a magistrate for the less serious criminal cases (equivalent du tribunal de police). They aren’t paid and consequently they work and they will receive some legal train but this is not your profession. The magistrates are appointed by the Lord Chancellor and not by the Queen.
B) A common status: the independence of the judges:
Historically the Lord Chancellor was the one who selected and who appointed the members of the judiciary. The appointment of judges was in the hand of the government. This resulted in the judiciary being preceded as having a lack of independence.
The criticism of lack of independence let the government to call in a constitution paper and how judges should be appointed in December 1999. The law society published also a constitution paper to organize the selection process and the appointment process of judges. The bill was proposed as a constitution of bill, this resulted from the Constitutional Reform Act in 2005: implemented judicial appointment committee (JAC).
The JAC has 15 members and these members come from different professions, they are judges but not only: one solicitor, one barrister, one magistrate and members who are neither a lawyer. This could be also compared in a way with the CSM. The JAC select a candidate for the judicial office and they will study their… and they make some recommendation for appointment to the Lord Chancellor. Depending of type of position if they are district judges or circuit judges the process might be a little bit different. Whenever a position is published a panel is composed of 5 members, they have to select a candidate on the recommendation of the Lord Chancellor.
Judges are chosen from that small group of people who are solicitors or barristers. They are seen as very competent people and very experienced in practice, they are able to be some respect in the court.
High judges: For the most important judges, the JAC appointed a selection panel to make the selection candidates. Then a panel will sent into a report to the Lord Chancellor. At this stage, the Lord Chancellor can either accept the selection or reject the selection if in his opinion the candidate is not competent for the office. In that case, the lord chancellor will ask the panel to reconsider the selection.
The LC has a veto. This veto has a limit after 3 rounds of proposals to the Lord Chancellor then he has no choice but to accept the selection. After the Lord Chancellor gives his consent, the person is appointed by the Queen in the letter of appointment.
Supreme Court:the tradition is that the prime minister will also be consulted in the nomination and the judges appointed necessary will have received the consent, the recommendation of the prime minister. Traditionally, only the senior judicial appointment for senior judges was made only for the ranks of barrister. Solicitors may also be appointed, eligible for appointment as senior judges.
The appointment is the guarantee of the judicial. It’s important to protect the independence of the judges to the easy remove by the government.
The process is different depending on the categories of judges :
- Senior judges (SC, CA, HC): the Queen (petition of both Houses of Parliament). Only the Queen may remove these judges but only if both Houses of Parliament have petition her to remove these judges.
- Other judges: the Lord Chancellor, with the agreement of the Lord Chief Justice. He cannot do it on his own, he need to have the agreement of the Lord Chief justice.
Incapacity, inability or misbehavior, they are some cases where judges have been removed on misbehavior but also outside the courts.
There isn’t a similar process in the appointed process and in the removal process. Judicial independence is protected in other ways.
3) Judicial independence:
- Large salaries: the salaries of judges are large not necessarily as large as the one that successful lawyers are making but the salaries are right enough just to be sure to maintain the quality of candidates.
- Immune from being sued: it’s the fact that judges are immune from the sued only regarding the exercise of their jurisdiction. They will not be sued because they have sent someone to prison for example.
This statutory issues that ensure the independence should also go with the fact that judges are judging themselves, should be conscience of their behavior and of saying when an issue of bias (when the possible conflict of interest would be the possible when a judge may be lacking impartiality).
- Self disqualification is an issue of bias arises.
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte(No 2)  1 AC 119: in that case the House of Lords had ruled that the former president of Chili Pinochet who was accused of.. against Spanish national who were resident in Chili in the 1970’s could be extruded to Spain to face trial. The House of Lords has said that he could be extruded to Spain. It emerged, became known that one of the judge who had voted for the extradition Lord Hoffman had links with Amnesty International which campaigned for justice, political prisoners. It has been asked whether the decision to authorize the extradition of Pinochet was made on independent rules. When Lord Hoffman had contributed to the decision he hasn’t said that he was a member of this organization. It was considered that the fact that he didn’t reveal the fact that he was a member of the organization creating an impression of bias sufficient to justify the extruded.There was a rehearing to decide whether if Pinochet could be extruded or not.
Pinochet was too holding to face his trial in Spain; they allow him to live in UK.
4) Wigs and gown:
This is how judges, they have to wear in courts. Judges were requiting to wear a wig (perruque) and gown (robe). It depended on the season, whether they heard criminal cases or civil cases. In 2008, a reform was thought to be necessary because it’s an old fashion in the way to give justice. Not for the civil cases.
For criminal cases the judges still wear a wig and so will do the lawyers who represent in the procedure.
For one week, it’s possible to have a camera on the Court of Appeal.
III) The lawyers:
There are 2 categories of lawyers in England: solicitors and barristers.
They have a paper work.
1) Areas of work:
=>For a long time, solicitors have a monopoly for different kinds of legal work in England:
- Administration of a deceased person’s estate (administration d’Etatd’unepersonnedécédée).
- Conveyancing (=transferring title or ownership of a property or land from one person to another) = transfert de propriété.
- Conduct of litigation.
These areas of work were reserved to the solicitors.
=>Opening of legal services to other professions:
- Administration of Justice Act 1985: LicencedConveyancers, regulated by the Council for LicencedConveyancers.
When they are licensed these people may work in the same area as the solicitors are doing and making the necessary paper work for the transfer of ownership or property.
- Legal Services Act 2007: reserved legal activities to other persons duly authorized by different bodies. According to this act there are reserved legal activities which can only be carried on by authorized…they are specifically mandated to regulate these activities.
Charter institute of patent attorneys which regulate… these legal activities being reserved…
Today the main work of a solicitor isn’t only to drive contract but it is also to conduct in a litigation, to represent the clients before the court.
2) Appearances in court:
- For a very long time, solicitors couldn’t represent their clients before high courts. Solicitor could represent their clients only before Magistrate’s court, county court and on different tribunals. If one of their clients was tried before the high court then the solicitor needed to ask a barrister to do something. That means that the barristers had a monopoly to represent clients before the high court.
- This has changed in 1990 with the Courts and legal Services Act: the monopoly of solicitors has disappeared. They need to complete an advocacy assessment to do something. Moreover there are a separate for right of audience, criminal and civil advocacy.
Only ten percent of the solicitors have today this right of audience.
3) Forms of practice:
- Solicitors may practice either as a sole practitioner or in a partnership.
- Partnership Act 1890. They gave all the means to practice but the partners remain responsible for their activities but recently the partnership that could be concluded was a partnership regulated by this partnership act of 1890.
- Limited liability partnerships act 2000 (société à responsabilitélimitée) :more solicitors to exercise their profession under that kind of partnership.
A solicitor is more specialized or not.
- In 2012 = 166 000 solicitors; 10 102 private practice firms.
- To qualify as a solicitor one most holds a law degree, a graduate diploma in law.
- +Legal Practice Course (LPC).
- Training contract (2 years) with a firm of solicitors. They may practice 3 different laws during these 2 years.
5) Regulation of the profession:
- The law society which was created in 1985 both regulated and represented solicitor’s interests.
- This dual role has been criticized. It was said that it wasn’t possible to represent professions and to regulate conflict of interest.
- Creation of the Solicitors regulation authority (SRA): the body which regulate the profession.
A code of conduct is published for solicitors: conflict of interest, confidentiality. There is a Solicitor disciplinary tribunal.
The Barristers may give advices to their clients but one of their main roles is to appear in a court. In a way we could say that the barristers are sort of the elite of the lawyers in England, they are very few.
= 15 000 barristers.
It reflects the fact that these sorts of lawyers are considered to be the elite of the lawyers.
- Academic stage (LLB)
- Vocational stage: Bar Professional Training Course, it’s organized by the bar and this last usually one year.
- Pupillage: one year spent as a pupil in barristers chambers.
- Obtain the tenancy in a barrister chamber.
-Queen’s Counsel (QC) (now also open to solicitors). This is a specific title which was reserved to barristers. Only barrister could be receiving this title. It’s just a specific title which means that you have achieved a good career; it’s a sort of recognition of the ability to work as a barrister. This title is also opened to solicitors.
Judges who are chosen usually are from a QC.
2) Appearance in court:
- Monopoly of right of audience until Courts and legal Services Act 1990.
- “cab rank” principle: it means that a barrister must take a case no matter how bad the case is. It’s a duty for barristers to accept cases.
- Traditionally: no instructions taken directly from the public: the barrister could not be instructed by the public. They received their instructions from solicitors. The law has been changed and
- Since 2004: barristers may accept direct instructions.
3) The forms of practice: the Chambers and the Inns of Court :
Most of the barristers are self-employed.
- Self-employed barristers work in “chambers”.They will share chambers, it means that they will share offices and most importantly they will share the clerk.
- The clerk in a chamber has abig role since all the cases are send in a chamber to the clerk and the clerk is the person who dispatches the cases to the barristers. He is also responsible for the bills to client.
- Inns of Court, responsible for “calling” barristers to the Bar: the Inns of Court are 4 in London. They exist for 4 centuries and they are responsible for calling barristers to the Bar.The Inns of Court are a sort of social club in England. During their pupillage the future barristers are ask to a specific amount of dinners to share the social life of the barristers. The Inns provide but also support for students. They may grant scholarship and provide for courses, law education.
4) The regulation of the profession: the Bar Council:
- Only one bar council, the authority which regulates the profession. This is moreless the equivalent of the law society for solicitors but unlike the law society, the bar council is the unique body which represents barrister activities. There is a code of conduct for barristers which is written and published by the Bar Council.
In France avocats à la cour (appel) et avocats aux conseils (CE, CDC).
Fusion in the Future? They are some discussions to both professions should be merged into one.
Since 1960’s: moves towards breaking down the division:
- Abolition of solicitor’s monopoly on Conveyancing (1985).
- Courts and legal services act 1990: abolition of barrister’s monopoly to represent clients before high court.
Arguments for fusion:
- Expense, it’s too expensive to have 2 kinds of profession.
- Inefficiency, it will be more efficient.
- Waste of talent, 2 professions.
Arguments against fusion:
- Specialization: job better alone.
- Importance of good advocacy. Advocacy is very important.
D) sanctions available to the Court :
By adopting theses provisions of arr-ising courts to take sanctions it should also a move from the adversial system to a lord judge sentered system.
- award of costs : the indemnity rule. This principle was departed from only in exceptional circumstances. Principle that the loser will have to pay always the cost of the winners depending on the behavior of the party who had been at the end. When a party hasn’t complied with court directions for instance when the party hasn’t respect a specific delay then this party will have to pay heavier cost. The winning party will not be awarded the possibility to have the cost by the party.
- Strike out the claim, or part of it : possibility for the court to have part of it. Possibility for the party to apply for relief for these sanctions. The court may remove strike out the claim or just part of the claim.
- Another sanction is a particular offence, a contempt of court, very vigorous sanction that a court may about the party. This is a criminal offence. When a person has committed a contempt of… this person will be in prison… this is a particular offence that a court may adopt if one of the parties disobey with the… power to the court to make the reform work and to resolve the pay…
Final remarks :
Has the access to Justice been improved since the implementation of the recommendations of the Woolf report ?
- a better understanding of the procedure now with the new rules since the rules are written in a simple vocabulary. Change of terminology.
- The new philosophy entreen in the civil procedural rules as held in changing the way party litigants through the litigation. This adoption explains the change of philosopyand has help understanding. This is the philosophy that we have to access the structural reform that have been adopted.
- Structural reforms :
ð the 3 tracks : small claim track, the fast track, the multi track. It will depending on the track that the claim will be allocated. To have theses tracks and to have precise directions for these tracks, facilitate procedure to take place and for lawyers. This reform dispatching the claim according to the tracks.
ð The pre-action protocols. Protocols mean a contract model of agreement that parties will agree on just in order to avoid litigation. This has help litigants to resolve their dispute. Statistics : a lot of cases are settled before going to courts, it’s a concrete result that many cases are resolved before going to court thanks to this pre-action protocols.
- length reduced : reduced thanks to the reform. For the small claim the average is more less than 6 months will be resolved, good time compare with what may happen in France.
- One remaining problem : the costs. Remaining problem but this problem is going to be removed since there has been some proposal to address this issue of costs.
- lord Justice Jackson: report on access to justice at proportionate cost.
- Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act).
Decrease this cost. Costs, the court cost and fees. Asking the lawyers to decrease their fees, to have a lawyer fees. This is something that might have been thought trough. First option isn’t really realistic.
Second option is to help parties to pay the cost. At least, the expenses will be held to pay this expenses it will facility the access to justice.
How to help litigants to fund their litigation ?
- legal aid : to finance the civil litigation. The legal aid exists in England but the rules have been changed in june 2013. You really have to be poor to have some legal aid in England, it concerns a few people.
- Portion of the damages paid the lawyers. No win no fee cases. The rules of the law provide the specific provisions not to enable lawyers to be whatever they want.
o conditional fee agreements (CFAs)
o damages based agreements (DBAs) (also called contingency fees).
Conditional fee agreements : they existed before, they exist since the nineties.
- The specific definition is that CFAs are a means of funding litigation, usually entered into by claimants, where the lawyer agrees not to take a fee if the claim fails. The lawyers will have work for free if he looses the case.
- if claim successful : “success fee”. It’s not depend on the damages. Before a reform in april, the loosing party had to pay this success fee but since this reform the success fee is no order pay by the loosing party. From 1 April 2013, the “success fee” is no longer payable by the losing side.
- up to 100% of basic fee. The basic fee being the fee speculated on the hours spend by the lawyers on the case. There are some limits.
Damages-based agreements (DBAs)
- DBAs are a means of funding litigation: lawyers aren’t paid if they lose a case but may take a percentage of the damages recovered for their client as their fee if the case is successful.
- Before 1 April 2013, DBAs could not be used in civil litigation (but used in tribunals, employment tribunals).
- How much? The law provides for a limitation, a maximum percentage that the lawyers can get.
- 25% max of damages (excluding damages for future care and loss) in personal injury cases.
- 35% of damages on employment tribunal cases.