INTRODUCTION TO ENGLISH LAW SYSTEM

I N T R O D U C T I O N

T O E N G L I S H L A W

S Y S T E M

14/05/2020

Yousra Chaaban-TA Faculty of Law-Ain Shams University-Doctorante à L'université Jean Moulin Lyon 3-Associée à

L'institut Édouard Lambert et l'IAO, ENS1

YOUSRA CHAABAN

• Yousra CHAABAN Maître assistante à la Faculté de Droit-Ain Shams-Le Caire

• Doctorante de droit privé et comparé à l'Université Jean Moulin Lyon 3

• Membre associée à l'IAO (ENS de Lyon)

• Membre de l'EDIEC et l'institut Édouard Lambert

• https://iao.cnrs.fr/membres/doctorants/yousra-chaaban/

• http://idcel.univ-lyon3.fr/de/forschung/wissenschatliches-team/

• Contact:

[email protected]

[email protected]

14/05/2020Yousra Chaaban-TA Faculty of Law-Ain Shams University-Doctorante à L'université Jean Moulin Lyon 3-Associée à


POINTS

DISCUSSED IN

THIS

PRESENTATION

Brief about comparative law systems

Common Law vs civil Law system

About… history of English Law system

Precision : The Geographical Reach of the English Law

Sources of the English Law system

The English courts and jurisdictions

Main features of the English Law system (equity and precedents)


L'institut Édouard Lambert et l'IAO, ENS 3

BRIEF ABOUT

COMPARATIVE LAW

SYSTEM

• The English Law is a common law system

• Refer to my presentation about « introduction to comparative law for beginners ».https://www.slideshare.net/YousraChaaban/introduction-to-comparative-law-for-beginners

14/05/2020 Yousra Chaaban-TA Faculty of Law-Ain Shams University-Doctorante à L'université Jean Moulin Lyon 3-Associée à


THE ENGLISH LAW

BEYOND THE UK

• English law historically has had a wide

geographic reach, a feature that emanates

from the days of the British Empire,

which stretched from the Antipodes

(Australia, New Zealand, Oceania)

through the Far East (Singapore,

Malaysia, Hong Kong), to India,

Pakistan, British colonies in South

and East Africa, the Caribbean, and

Canada. US law is, of course,

grounded on English common law

principles.



COMMON LAW VS CIVIL LAW SYSTEM



Common Law Civil Law

• Less restricted by written or codified law but Parliament is always

sovereign.

• Legislation or codes constitute the primary source of law

• Judges have greater authority to interpret law but are subject to the

Doctrine of Precedent.

• Judges have a limited role in the interpretation of law.

• Adversarial system • Inquisitorial system

ABOUT… HISTORY

OF ENGLISH LAW

SYSTEM

• The common law started

developing after the Norman

conquest in 1066 (Battle of

hastings). Before that, local

unwritten customs determined

most laws originally. But the

problem of customs was the lack of

unity.



•Unlike continental civil law, the English system does not originate from any particular set of texts but from what has been called ‘tradition expressed in action’. It began as customary law used in the King's court to settle disputes and conflicts which affected the monarch directly.



• In 1154, Henry II institutionalised common law by creating a unified

court system ‘common’ to the country through incorporating and

elevating local custom to the national level, ending local control,

eliminating arbitrary remedies, and reinstating a jury system of

citizens sworn on oath to investigate criminal accusations and civil

claims.



• In the expansion of the King's legal powers, an important role

was played by the clerics. They developed a range of claim

forms, called writs, and established procedures which, perhaps

significantly, gave them greater importance and provided them

with a generous income! (become later the common law

courts).

• Another important development: was the expansion of the

‘King's Peace’ or king’s bench. This was the monarch's, as

opposed to a local lord's, right to deal with any local

disorder or crime (begining of the idea of equity-see

below).

• See also: (Supreme Court of Judicature Act 1873).



PRECISION :

THE

GEOGRAPHICAL

REACH OF THE

ENGLISH LAW



The full name of this country is

the United Kingdom of

Great Britain and Northern Ireland (UK).

The UK has four principal

constituent parts: England,

Scotland, Wales, and Northern

Ireland.

Scotland and Northern

Ireland are particularly

distinct from England and

Wales

So: the United Kingdom has three legal systems.

WALES

•Wales was essentially

annexed into England

by the Wales Act 1535,

so it such does not

have a separate legal

system.



SCOTLAND



Scotland: merged with England and Wales in 1707, in order to create, the United Kingdom of Great Britain (Acts of Union 1707).

Title 19 of that Act of Union preserved to Scotland a separate legal system.

NB: the legal system of Scotland is mixed: it contains elements of both common law and civil law systems.

NORTHERN IRELAND



A hostile relationship with the rest of the UK since

history

The Anglo-Irish Treaty (1922), divided the 32

counties of Ireland into two separate parts: 26 counties became the Irish Free State and the Northern Ireland.

Northern Ireland is formed of 6 counties : Antrim,

Armagh, Fermanagh, Tyrone, Down, and

Derry/Londonderry.

In 1937, the Irish Free State took its indenpendance.

In 1973 Northen Ireland adopted a new constitution that confirms that North Ireland is under the direct

rule of Westminster.

The Good Friday Agreement 1998: = the establishment of

the Northern Ireland Assembly which has

legislative competence in certain devolved areas.

SOURCES OF THE ENGLISH LAW SYSTEM



Legislation

Common law (precedents, case law)

Europaean law

1/LEGISLATION • Legislation is created by the Parliament.

• This later is Bicameral =The UK Parliament has two Houses.

• The House of Commons (650 elected MPs), the House of Lords (826 unelected members) and for sure : the monarch ( ceremonial role+ sign everynew law).

• Both: the House of Commons and the House of Lords share the job of making laws.

• Ideas for new laws are called bills: (seeparliamentary ping pong).

Once the two houses agree, then it's the monarch'sturn. It's their job to formally agree the bill. This makes it an act of Parliament. And only then is it a law.



PARLIAMENTARY

SOVEREIGNTY

• Parliamentary Sovereignty means Parliament can enact, revoke or alter any law it sees fit.

• NB: Acts apply in all four countries of the UK – see later slides.



2/COMMON LAW

• Law that has evolved through court

cases over the past 800 years.

• Doctrine of precedent, or stare

decisis, lies at the heart of this

system (see main features below).

• NB: However, much of our law is

actually statutory!



3/EUROPEAN LAW



United Kingdom joined the European Community in

1973.

European Union law was incorporated into domestic

law by the European Communities Act 1972

Brexit: In 2016, 52% of the population voted to leave the EU (see Article 50 of Lisbon treaty that introduced for the

first time a procedure for a member state to withdraw voluntarily from the EU).

The treaties are the primary source of European law (v. the

Treaty of Rome 1957, Maastricht Treaty 1992; and the Lisbon

Treaty of 2009.

THE ENGLISH COURTS AND JURISDICTIONS



SOME

VOCABULARY

– Claimant v Defendant (Civil) = County courts

– Appellant v Respondent= Court of Appeal (civil division)

– The trial may be summary or by indictment

Summary offences are matters that are tried by a judge alone. If it does not, then the offence isan indictable offence. Indictable offences. Indictable offences require a trial by judge and jury.

– Appeal a sentence or conviction =/= (is not) Appeals against conviction on a question of law.



CRIMINAL CASES



All criminal cases will start in the magistrates’ court.

The more serious criminal matters are committed (or sent) to the Crown Court.

Appeals from the Crown Court will go to the High Court.

and potentially to the Court of Appeal (criminal division) or even the Supreme Court.

MAGISTRATES’ COURT



Magistrates’ court: are local courts.

There are three types of cases that can be heard in the Magistrates’: summary matters, indictable matters and those can be tried either summarily or on indictment.

Trials take place in front of either a bench of lay justices or a District judge.

CROWN COURT



The Crown Court has both original and appellate jurisdiction (it can hear trials and certain appeals).

The judge in the Crown Court will regularly sit with a jury for trials. The judge advises the jury as to the law and the jury decide questions of fact.

Only defendants can appeal to the Crown Court.

(Ancienne cour d’assises).

APPEAL FOR CRIMINAL CASES



There is no automatic right of appeal, instead permission must be

granted by the Court of Appeal.

Only the defendant can appeal against

conviction.

APPEAL FOR CRIMINAL CASES



Where it is a summary case, appeals on sentence or conviction on fact go to the Crown Court. Appeals against conviction on a question of law will go to the Divisional Court (High Court).

NB: If the summary trial was appealed in the Crown Court, there is a further appeal on a point of law to the High Court.

Where the case was by indictment, The Court of Appeal (Criminal Division) will hear criminal appeals against conviction or sentence from the Crown Court.

CIVIL CASES

• Magistrates’ court (tribunals), but may well go to a county court.

• Appeals will go to the High Court and then to the Court of Appeal –although to different divisions of those courts.



WHAT IS THE DIFFERENCE BETWEEN A COURT AND A

TRIBUNAL?



Court Tribunal

• General Jurisdiction • Special Jurisdiction

• Need barrister/solicitor • There is not always a need for a barrister/solicitor to represent someone

• The people sitting on a tribunal will often have specific expertise

COUNTY

COURT

• The County Courts are inferior courts created by statute (County Courts Act 1846 (amended in 1984).

• Deals with these types of cases= Breach of contract , Claims in tort, Personal injury, Land disputes, Family

• These types of cases are also heard in the High Court. The Country Court has exclusive jurisdiction over ‘small claims’.



APPEAL IN CIVIL CASES



Cases from the country courts can be appealed at the High Court. This later has unlimited jurisdiction in civil matters. It will hear the more serious civil cases.

The High Court is divided into 3 divisions: (1) Queen’s Bench Division (2) Chancery Division (3) Family Division= (v. infra); which are in turn subdivided to many many courts.

The Court of Appeal (Civil Division) hears appeals from the county courts, the High Court (Queen’s Bench, Chancery, and Family Division), and some Tribunals such as the Employment Appeal Tribunal and the Immigration Appeal Tribunal.

APPEAL IN CIVIL CASES



Unlike in the criminal courts, any party may appeal.

Permission to appeal must be given by the trial judge or the Court of Appeal. Permission to appeal will be granted if the appeal has a real prospect of success or if there is

some other compelling reason why the appeal should be heard.

UK SUPREME COURT • The Supreme Court was established in the

Constitutional Reform Act 2005, Part 3. It came into

being in October 2009.

• The Supreme Court has the same jurisdiction, broadly

speaking, as the House of Lords.

• The UK Supreme Court is at the top of the hierarchy of

courts, it is the final court of appeal for civil and criminal

cases in England, Wales and Northern Ireland and the

final court of appeal for civil cases for Scotland.



UK SUPREME COURT • In criminal law cases there is an appeal

to the UK Supreme Court from the Court of Appeal (Criminal, civil Divisions) and the Divisional Court of the Queen’s Bench Division (High Court). This is open to the prosecutor and the defendant.

• The Supreme Court hears only a small number of appeals.

• For a case to be heard it must involve a point of public importance.



JUDICIAL

COMMITTEE

OF THE PRIVY

COUNCIL

• The Judicial Committee of The Privy Council

(JCPC) is the court of final appeal for the UK

overseas territories and Crown dependencies,

and for those Commonwealth countries that

have retained the appeal to Her Majesty in

Council or, in the case of Republics, to the

Judicial Committee.

• Established by the Judicial Committee Act 1833

• The Privy Council gives advice and opinions :

The decisions of the Privy Council are

persuasive rather than binding.



COMPARING TO THE FRENCH COURT SYSTEM ORGANIZATION



MAIN FEATURES OF THE ENGLISH LAW SYSTEM



The English Law has two

main: Equity Precedents

1/ EQUITY

• The Oxford English

Dictionary gives a general

definition of ‘equity’ as:

The quality of being equal or fair;

fairness, impartiality; even-handed

dealing. What is fair and right;

something that is fair and right.

• Difference with common

law:



Equity Common Law

Refers to court rulings dealing with justice and fairness

Refers to the law based on precedents

Chancery representative of the monarch

Judges and jury

-Procedures nowadays in the two are the same, before thatthere were two different courts-Similar cases might be heard in bothDifference: the way which the cases are heard and the type of decision handled down

ORIGIN OF EQUITY



Evolved from the King’s authority to issue writs

through his Chancellor in order to address unjust

(or unconscionable) judgments of his courts.

Chancellor was usually a cleric who made decisions

according to his conscience on the merits

of the individual case.

RELATIONSHIP BETWEENEQUITY AND COMMON LAW• The Chancellor’s decisions acquired the

status of a separate body of law.

See Chancellor vs Lord Chief Justice - The Earl of Oxford’s Case (1615) 1 Ch Rep 1 (Rivalry between the Chancery and common law courts was exemplified by this case).

• Fusion Equity and Common Law: Section 25(11) Supreme Court of Judicature Act 1873:‘In all matters not hereinbefore particularly mentioned, in which there is any conflict, or variance, between the Rules of Equity and the Rules of Common Law with reference to the same matter, the Rules of Equity will apply.’

= fusion administrative uniquement



WHERE ARE WE NOW?



Equity remains a separate body of law, but one that is administered by ALL courts.

Some areas that were originally created by the old Court of Chancery remain creative.

A key source of this creativity is the ‘equitable maxims’

But this creativity is limited……… (see next slide)

REASONS FOR LIMITING EQUITY’S CREATIVITY

• ‘the creation of new rights and remedies is a matter for Parliament, not the judges’.

See: Usurpation of the function of Parliament - Western Fish Products v PenwithDistrict Council [1981] 2 All ER 204, per Megaw LJ:

• ‘one might as well forget the law of contract and issue every judge with a portable palm tree. The days of justice varying with the size of the Chancellor’s foot would have returned.’

See: The problem of Uncertainty - Cowcher v Cowcher [1972] 1 WLR 425 and Taylor v Dickens [1998] 1 FLR 806, per Judge Weeks QC



2/ PRECEDENTS



The precedent cases are a source of the Law.

A binding precedent is a case that must be applied in a later case.

= Courts must follow binding precedents of courts above their level

Aims to ensure certainty as an aspect of fairness.

WHAT IS THE REASON THAT PECEDENTS ARE BINDING? (WHEN DOES THE

DOCTRINE OPERATE?)

• The Ratio Decidendi (of the judgement)= When we say that a decision is

‘binding’, we are really saying that the ratio of that decision is binding

• Ratio decidendi is basically the principle of law decided by the case in question.

• = We have to look to the reason of the outcome of the precedent case in the

same matter.

See Donoghue v Stevenson [1932] UKHL 100

• NB: The material facts help us find the ratio.



ATTENTION =/=

•Obiter Dicta (of the judgment) are things

said within a case that do not relate to the

material facts. They are statements that are not

binding on a later judge.

See Home Office v Dorset Yacht Co Ltd [1970]

AC 1004



HOW TO AVOID A PRECEDENT ?



Overruling Reversing Distinguishing

A court is asked to review whether a precedent from a lower court is correct

law= the Law must change

Reversing is when a court higher in the hierarchy reverses the decision of a lower

court in the same case.

When a court decides that the case is materially different in fact or law. The court is essentially

saying that the decision is not sufficiently similar.

The effect of distinguishing is that the court does

not consider itself bound by a previous case or precedent.

McLoughlin v O'Brian , 1982 UKHL 3, 1 (UKHL 6 May 1982)

Overruling Dulieu v White & Sons | [1901] EWHC

KB 1

For example: when an appeal against a decision succeeds

- Balfour v Balfour [1919] 2 KB 571

- Merritt v Merritt [1970] EWCA Civ 6===Technically

bound by Balfour – earlier decision, same court - but the facts were distinguished.

CONVERGENCE BETWEEN ENGLISH LAW AND FRENCH LAW

(OPINION AND IDEAS OF RESEARCHES)



Hint: After the French Law reform of 2016

(codifying judicial cases)

Common Law Systems are becoming more

codified ?

Globalisation EU and uniformed codifications

FURTHER READINGS SUGGESTED

• Catherine Elliott, Frances Quinn, English Legal System, 2017.

• Stefan Fafinski, Emily Finch, English Legal System (Law Express), 6th edition, 2017.

• Gary Slapper, the English Legal System, Eighteenth Edition, 2017.

• Catherine Elliott, Frances Quinn, English Legal System, Tenth Edition, 2009.



INTRODUCTION TO ENGLISH LAW SYSTEM

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