Summary Introduction to common law exam notes (with cases)

English Case Law
Judiciary

,Case-Law of the judiciary
Terminology

 ‘Common Law’ [3 meanings]
1. Broadest meaning: Legal system of England/USA vs Continental legal system
-No codification vs codification
2. Best meaning: Case Law in England 1250-1500
-Common law: developed & took place of local law
-Equity: developed after 1500
3. Case Law vs Statutory Law
-Legal system based on case law




Origin of Common Law
 Legal development up to 1150
 1066: William ‘The Conqueror’ comes from Normandy to England
1. Found legal diversity: local courts apply local customary law
2. Established strong central govt: No immediate changes to local customary law
 Development of Curia Regis [Kings Council]
Court of Noblemen ≠ Court of Law
-Administered all kings business [financial, legislative, judicial]
-Branched off into other institutions [Common Law Courts, Chancery, Parliament]
 Legal development from 1150
 William & his successors developed the common law
 Development of common law courts
-Curia Regis branched off
-Centralised: applied law throughout the country

Step 1: Henry II & Circuit judges/juries
1. General Eyre’s
-Representatives of king sent from Westminster
-Travelled around a specific fixed route [circuit]
-Enforce local customary law in local courts in the name of the king
2. Courts of Assizes [Juries]
-Local sheriff received an order to assemble a jury to decide on the facts
-Judge arrived and had to apply the law to these facts
 Consequence of this system
1. Judges move not courts
2. Division of Labour
-Few judges
-Judges decide law & jury facts

Step 2: Magna Carta [1215]
-Fixed location: Claimants and defendants must be able to travel to address their disputes

Step 3: Common Law Courts of Westminster
 Common law judges apply common law
1. Court of Exchequer
-Taxes [disputes connected with royal revenue]
2. Courts of Kings Bench
-Public law cases relevant to the king [disputes between subjects and king]
3. Court of Common Pleas
Private law cases not relevant to the king [disputes between the king’s subjects]


Development of common law 1250-1500

, 1. Foundation: Local Customary Law
-Legal unity developed in centralised Common Law Courts
A. Apply the commonality
-‘General Eyres’: acquainted with all the different local customs
-Smooth out the differences in the common law courts
B. Declaratory doctrine of common law
- Judge is not making law but declaring a pre-existing custom

2. Characteristic: Limited jurisdiction
-Importance of procedure: ‘Ubi remedium, ibi ius’
-Where there is a remedy [writ] to go before common-law judge, there is law
-The common law developed out of very specific cases granted a writ

3. Stare Decisis: ‘Let the decision stand’
-New legal problem & new rule formed: rule is followed by all other common law judges

4. Division of labour
 Local Judges: Small cases common law courts don’t accept
 Jury: Establish facts so judges only apply the law
 Statute of Westminster [1285]: Nisi Prius Rule [‘if not earlier’]
-Only bring cases to Westminster that have not been decided locally




Procedure

Local courts
 Decided by: Local judge or visiting Eyre
 Procedure: General access, No writ


Common Law Courts
 Decided by: Common Law judge
 Procedure: No general access, need writ

1. Writ system
-‘Royal order of the king’: issued by Lord Chancellor
 Register of writs
1. Writ of debt
2. Writ of covenant [contracts]
3. Writ of trespass [Violence & weapons against the peace of the king]


2. Having case heard
-Claimant: selects a writ he considers fits the facts of the case
-Lord Chancellor: grants permission by issuing the writ
-Local Sheriff: receives the writ and secures the defendant/ assembles a jury that knows facts
-Common Law Judge: can deny action if writ does not fit the facts



Development of Equity [1500]

1. Foundation: Lord Chancellors Conscience

2. Characteristics: Wider jurisdiction
-Start a new case: do not need a writ to go before Lord Chancellor
-Two scenarios
a. No Common Law Court available: Lord Chancellor decides
b. Not satisfied by decision of Common Law Court: Lord Chancellor revises decision

, 3. Stare Decisis: ‘Let the decision stand’
-New legal problem & new rule formed: rule is followed by all other common law judges



Equity Remedies Common Law

Problem I: Writs

Inflexibility

 Provisions of Oxford [1258]
-Act of Parliament: Prohibited Lord Chancellor issuing new writs
-Parliament didn’t want king to steer development of common law
-New legal problem: Lord Chancellor could not issue a new writ
 Statute of Westminster [1285]
-Act of Parliament: New writs could be issued only ‘in consimili casu’ [‘in similar cases’] by analogy
-Resulted in many strange constructions of writs
 Bukton v Tounesende [1348]
 Statute of Westminster: strange constructions of writs
Facts:
-Ferryman agreed to transport sheep across river
-Ferryman overloaded boat with sheep
-Boat sank and sheep drowned
-Owner of sheep couldn’t use writ of covenant since they didn’t make a deed [contract in writing]
Result:
-Lord Chancellor issued a writ of ‘trespass on the case’ by analogy: tort of breach of contract
-Writ of trespass because ferryman adopted & violated a public duty to transport sheep safely
Decline of local courts
 Division of labour: Local courts do not need a writ
 Local courts gradually supressed: No writ, no access

Procedural hardship
 Claimant: selects writ that doesn’t fit facts of case
 Common law judge: denies action: need to apply for new writ which is costly in time & money

Solution I: No writs for Court of Chancery
 Subpoena: summons issued by the Lord Chancellor
-Did not state cause of action
-Told recipient to appear before the Lord Chancellor so he can ask questions


Problem II: Limited Common Law Remedies
 Only pecuniary: monetary damages
 You couldn’t ask for:
1. Trust agreements to be valid against third parties
2. Injunction: Prohibition to do something
3. Specific performance: Getting what you agreed upon

Solution II: New Remedies in Court of Chancery
1. Trust agreement valid against third parties
-Trust agreement: transferring ownership of land to somebody who promises to keep ownership for
you
-Common law: trustee could sell the land to somebody else because they are not part of the
agreement
-Lord Chancellor: Forces third party to respect trust agreement
2. Injunction
-Lord Chancellor: Stops person from carrying out a wrong
3. Specific performance

, -Lord Chancellor: Compel a person to perform his obligations


Relationship between Common Law & Equity

1. Parallel systems
-Both case law systems
-BUT: Sometimes cover different fields of law

2. Equity is complementary to the common law
-Common law is the basis
-Fills in gaps of the common law regarding remedies

3. Conflict is possible
 Trusts Agreements
-Common Law Court: third party wins
-Equity Court: third party loses
 Earl of Oxford [1615]
 Equity will prevail over common law
Ratio Decidendi:
-Equity is not an appeal system
-Start a new case and decision before Common Law Court will remain unexecuted


Reforms of 19th century to Westminster Court System
Problem I: Uncertain Jurisdictions
 Not always clear which Westminster court to go to: Common Law Court or Court of Chancery
 Wrong Court: case thrown & start again: costly in time and money



Solution I: Fusion of Courts into one court with one system of appeal


Judicature Acts [1873-1875]

 All Westminster Courts fused into The High Court of Justice
-No uncertain jurisdiction
-Different divisions: Case referred to right division
1. Queens Bench Division
2. Chancery Division
3. Family Division
 Introduced Court of Appeal
-One for all divisions
 Introduced Decentralized Courts
 Concurrent jurisdiction: part of the High Court of Justice
 Referrals: to High Court of Justice if complicated case
 Appeals: often go straight to CoA
 High Court judges: partake in sessions of the decentralized courts
 Crown Court [public law: serious crimes]Referred to the QBD
 Magistrates Court [Public law: petty crimes] Referred to the QBD
 County Court [Private Law]
 Family Court [Private Law] Referred to the Family Division

Appellate Jurisdiction Act [1876]

 Introduced HoL as CoA
-Appeal Court for important political cases
 Constitutional Reform Act [2009]
-Supreme Court of the United Kingdom replaces HoL CoA

, -Supreme Court only accepts very important cases from the High Court of Justice



Solution II, Problem I: All courts apply both common law and equity law
Judicature Acts [1873-1875]

 Combined administration
-Did not combine common law & equity law but their administration within courts
 In principle remains the same
-QBD: still applies common law
- Court of Chancery: still applies equity law
 Remedies
-All courts can award common law remedies & equitable remedies

Problem II: Procedural Hardship
 Common Law Court: Need a writ
 Court of Chancery: Slow

Solution II: Writ system abolished in High Court of Justice
 Need privately issued ‘writ of summons’ from solicitor not Lord Chancellor
 Asks opponent to appear before court



Competences of the Different Courts
The overall system:

1. One court
2. One system of appeal
3. System of referral between court
Referral ≠ appeal



Higher Court

 HoL [now SC]
 CoA

Senior Courts

 High Court of Justice
 QBDCommon law cases
 Chancery DivisionEquity cases
 Family DivisionDisputed Divorces
 Crown Courts Serious crimes with Jury system
Inferior Courts

 Magistrates CourtsPetty crimes
 County CourtsTort & contract
 Family CourtUndisputed divorces


Appeal in English Law
1. 13th century: Centralised Westminster Courtsno appeal
-Appeal not needed: courts of first and last instance
-Few judges discuss cases over dinner
2. 19th century: Decentralised local courtsCoA
-Appeal is needed: local courts make decisions in first instance
 Appeal is still not a right, you need ‘leave to appeal’

, -Court you are appealing from gives leave
-CoA or SC need to accept case



Stare Decisis vs Doctrine of Binding Precedence


Until 1850: Principle of
Stare Decisis
 Less legal certainty
 Foundation: General principle
-Judges stick to previous decisions
-Precedence is persuasive not formally binding
-Judge can deviate from previous decisions: common law developed

Consequence

 No comprehensive case reporting
-No system of appeal: cases don’t need to be published
-Judges discuss cases over dinner
a. Yearbooks [1272-1535]
 Purpose: Educating law students & legal practitioners by
discussing cases
 Use today? Cases are not reported properly: use is limited
b. Private reporting [1535-1865]
 Purpose: More professional than yearbooks: practitioners and
judges discussing cases
 Use today? ‘Books of authority’: used as precedence

After 1850: Official Doctrine
Of Binding Precedence
 More legal certainty
 Foundation: Judicial self-binding doctrine [common law]
-Next judge is officially bound by the previous decision
-Precedence is formally binding
-Only the legislator can change the law
 Adopted with retroactive effect
- All old cases are binding precedence
-‘The older the case, the better’: start with oldest cases
 Example: Pinnels Case [1602]
-Consideration is retroactively required to conclude a contract
Consequence
 Official Systematic Law Reporting
-System of appeal: cases need to be published
 1865: Incorporated Law Reporting Council for England and Wales
-Lawyers produce an official report on the case
-Binding precedence even if not officially reported


Doctrine of Binding Precedence

Referring to cases:
 Cases officially reported by Lawyer
 Cases not officially reported by lawyer
 Old cases in archives
× BUT: Foreign casesprecedence is persuasive not formally binding


Which courts are bound by which decisions?

,  Supreme Court of the United Kingdom
A. London Street Tramways v London County Council [1898]
 Doctrine of binding precedence & HoL [SC]
Ratio Decidendi:
-HoL [SC] is bound by own previous decisions

B. Practise Statement [1966]
-HoL [SC] is not bound by own decisions
-BUT only change direction rarely

 Court of Appeal
 Young v Bristol Aeroplane [1944]
 Doctrine of binding precedence & CoA
Ratio Decidendi:
-Bound by own previous decisions and previous decisions of HoL [SC]
-Exceptions to own previous decisions:
1. Decision is given per incuriam
2. Conflicting decisions of its ownChooses which to follow
3. Own decision conflicts with HoL decision Bound to follow
decision of HoL

 Senior Courts: High Court of Justice/Crown Court
-Bound by decisions of higher courts [HoL/CoA]
-Bound by own decisions if given in divisional court
 Divisional Court
-At least two sitting judges in court
 Froom v Butscher [1979]
 Doctrine of binding precedence & senior court
Facts:
-If not wearing a seatbelt made you liable for contributory
negligence
Ratio Decidendi:
-Decision not given in divisional court & so not binding on
senior court

 Inferior Courts: Magistrates Courts, County Courts and Family Courts
-Bound by decisions of all higher courts
 HoL/CoA
 High Court/Crown Court: even when decision is given by individual
judge
-Not bound by own decisions

 Tribunals
-Bound by decisions of all higher courts
 HoL/CoA
 High Court/Crown Court: even when decision is given by individual
judge
-Not bound by own decisions



When is precedence not binding on judge?

1. Overruled by a higher court
-Lawyer proves the binding precedence was overruled
-Overruling ≠ reversing
 Overruling: Different cases
-Decision A decided by a lower court in one case [eg High Court]
-Decision B decided by higher court in different case [eg CoA]
-Previous binding precedence is overruled