11.1. The Courts

Precedent can be:

1. Applied or followed - follows a precedent decision 2. Overruled - overturns a precedent decisions, was never good law, superior courts, sometimes a court can overrule their own precedent 3. Reversed - overturns a precedent decision in the same case e.g. on appeal 4. Distinguished - current court does not overrule a precedent but does not apply it on the grounds that the facts or law between the two cases are sufficiently distinct

Primary Sources of Law

Include legislation and case law

Secondary Sources of Law

Include textbooks, commentaries by legal scholars, opinions of legal experts and decisions of courts that have not created judicial precedent

What is the Judiciary?

Independent from the legislature and the executive branches Resolves 3 general types of conflict: 1. conflict between state institutions 2. conflict between state institutions and individuals 3. conflict between individuals

Jurisdiction

Jurisdiction refers to a political entity where a particular law has application Can also be used in the sense of a body or court having jurisdiction over a particular issue, meaning it has power to settle disputes in that area of law Uk is divided into 3 jurisdictions

Right of Audience under Legal Services Act 2007

Means the right to appear before and address a court, including the right to call and examine witnesses. Reserved legal activities - particular activities and includes right of audience - s.12 LSA The right may be unlimited, can appear before any court in any proceedings.

Ratio decidendi and obiter dicta

Ratio decidendi = the decisive legal reasoning, the conclusion drawn by the judge in applying the law to the facts Obiter dicta = other statements made by the judge which are not part of the ratio, may have been relevant to the legal reasoning but so not to form part of the law

judicial independence

Serves to protect the liberty of citizens against the executive branch In any democratic society, individual judges and the judiciary should be impartial and independent to enable public confidence and all cases to be decided fairly. Judges cannot be dismissed because they are unpopular with government or at the pleasure of the Crown Judicial officers must be free of any improper influence when they carry out judicial functions.

Common Law & Equity

The law of equity is a separate area of law that mostly developed as a separate system of discretionary remedies administrated by the Lord Chancellor Today, the law of equity works alongside common law principles such as equitable remedies in contract law

Reserved legal activity

s.13(2) LSA A person is entitled to carry on a reserved legal activity or the person is an exempt person in relation to that activity

Three branches of state in the UK

1. An executive 2. A legislature 3. A judiciary

Sources of Law within England and Wales

1. International law - Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), EU law only has limited effect, 2. Statutes - Acts of Parliament or legislation 3. Common law - case law or judge made law, laws made by judges through judicial precedent - independent, non-elected judges, can fill gap in law

Divisions of the High Court

1. Queen's Bench Division - civil matters in contract and tort, judicial review and appeals from magistrates and Crown courts and appeals from county court 2. Chancery Division - wills, administration of estates and probate, land and mortgages, trusts, company law, intellectual property, insolvency and appeals from county court 3. Family Division - appeals from magistrates and crown court in family issues,

Superior courts for criminal trials

1. Supreme Court 2. Court of Appeal (Criminal Division) 3. Crown Court

Superior courts for civil cases

1. Supreme Court - at the top 2. Court of Appeal (Civil Division) 3. High Court (split into several divisions) 4. County Court

Right of Audience

A right of audience is a right to appear and conduct proceedings in court Key change over time in relation to solicitors getting rights of audience in superior courts. Other individuals who deal with legal cases can exercise this right if granted by their regulators.

Courts and Legal Services Act 1990

Before this barristers enjoyed rights of audience in all courts for all proceedings, subject to regulations However, solicitors had only restricted rights of audience in the High Court and rights of audience for all proceedings in County and magistrates'. One of the aims of this legislation was to make it possible for solicitors to obtain rights of audience in higher courts by completing training of Law Society

When is precedent binding?

Binding on current decisions when: 1. the facts in the precedent case and the current case are sufficiently analogous to apply the same legal reasoning 2. the relevant legal reasoning was part of the ration of the precedent and not obiter 3. the precedent case was heard in a more superior or equally ranking court Precedent will be merely persuasive if any of these elements are missing

Precedent In the Supreme Court

Binds all lower courts Does not bind itself

Precedent in the High Court

Binds all lower courts For cases heard at first instance, it does not bind itself For cases heard as appeals, it normally binds itself, subject to Young v Bristol Aeroplane exceptions

Precedent in the Court of Appeal

Binds all lower courts Normally binds itself, subject to Young v Bristol Aeroplane [1944] exceptions: 1. where previous decisions conflict 2. where previous decision has been implicitly overruled by Supreme Court 3. where previous decision was made 'per incuriam' (carefully without regard to the relevant law)

Precedent in the Crown Court, County Court and Magistrates' Court

Binds no other courts

'exempt persons'

Certain exempt persons are permitted to exercise the right of audience subject to LSA s.19 and Sch 3 A person who is not authorised by statutory scheme to exercise rights of audience may nevertheless do so. In certain circumstances, a person whose work includes assisting in the conduct of litigation is an exempt person for the purpose of exercising a right of audience

Access to Justice Act 1999

Changed the way in which the Law Society regulates the granting of higher rights of audience to solicitors Professional groups other than barristers and solicitors were also granted rights of audience for particular purposes

Supreme Court

Constitutional Reform Act governs the SC When a vacancy arises, the CRA requires an 'ad hoc' SC Selection Commission to be appointed - 5 members: 1 member of SC, layperson, members of each Judicial Appointments Commission and Northern Irish and Scottish equivalents

Inferior courts

Courts lower down the hierarchy County court for civil cases Magistrates' Courts for criminal cases These courts have limited jurisdiction and deal with relatively ordinary, day-to-day matters and are unable to set precedent

Classifications of Law

Fundamental classifications: 1. Public law - involves duties owed to or by the state 2. Private law - involves duties owed to or by individuals i.e corporate individuals 3. Civil law - private parties 4. Criminal law - involves the state who's responsibility is to prosecute D

Doctrine of Precedent

Holds that a legal principle established by higher courts should be followed in similar cases by lower courts.

Constitutional Reform Act 2005

Its enactment brought major changes that strengthened judicial independence: 1. imposing a statutory duty on government ministers to uphold the independence of the judiciary 2. creating a UK Supreme Court 3. establishing an independent Judicial Appointments Commission

Judicial Appointments Commission

Launched in 2006 Commission selects candidates for judicial office based on their merit Does not have full autonomy - recommendation of Lord Chancellor, legislature has final say Encourages diversity in the range of persons available for appointment - s.64 Judiciary should closely reflect the society it seeks to adjudicate

Case law and precedent

Law of England and Wales developed from judge made law Case law operates on doctrine of precedent Referred to in Latin as the principle of 'stare decisis' = let the decision stand Case law holds that: 1. a statement of law / the ratio made in one case should stand as good law which can be relied on in future cases 2. cases with the same or similar legally relevant facts should be decided in the same way 3. system of precedent fits with hierarchy of courts - decisions of superior courts are binding on lower courts

Sources of Law

Laws regulates the behaviour of individuals within a comity and can be a : 1. Primary source 2. Secondary source

Litigants-in-person

Someone who represents himself or herself without a lawyer in a court May be permitted to exercise the right to audience and is usually granted at the discretion of the court and for a specific case

Court and other tribunals

Specialised courts and tribunals 1. Family court 2. Coroners' court - investigates and rules on circumstances of death 3. Courts martial - armed forces 4. Tribunals 5. Judicial Committee of the Privy Council - Commonwealth countries, ecclesiastical matters, professional disciplinary 6. Court of Justice of the EU (CJEU) - highest court in EU, interprets EU law 7. European Court of Human Rights (ECtHR) - interprets ECHR, not part of the EU

Hierarchy of Sources of Law

Statutes take precedent over common law - common law can be superseded or replaced by statutes

Court Hierarchy

Systems of courts exists to interpret and enforce the law Structured so that cases are heard at first instance, with an appeal mechanism to higher courts Also, determines which decisions are binding.

Legal Services Act 2007

The Act which regulates legal professions Both solicitors and barristers can carry out statutorily defined area of work e.g. litigation and representing clients in court. Introduced reforms to the legal profession and extends to right of audience and preserved all rights under the Courts and Legal Services Act 1990.

What is a legal system?

The body of institutions that make, execute and resolve disputes on the laws of a state. Northern Ireland and Scotland have separate legal systems in respect to the forum in which legal disputes are settled.

Judges of Supreme Court, Court of Appeal and High Court

These hold office during good behaviour, subject to a power of removal by the Queen on an address presented by both Houses of Parliament - Constitutional Reform Act 2005, s.33