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Graduate Diploma in Law

Full-time and Part-time Preliminary Study Pack

Graduate Diploma in LawFull time 2013/ 2014

Part Time 2013 / 2015

Summer 2013

Dear Student

Graduate Diploma in Law

Welcome to the GDL course at UWE. This Preliminary Directed Study course will prepare you for the Legal Method, System and Skills induction sessions. The purpose of the preliminary reading is to introduce you to issues that are central to your legal studies. The aim is to lay the foundation for the skills you will continue to develop throughout your GDL studies and beyond, and to put the substantive law that you will study into its practical and procedural context.

In addition to reading the materials contained in this pack, you must obtain a copy of:

Elliott and Quinn English Legal System, 13th edition, published by Longman Pearson, rrp £30.99

Please do not purchase older editions of this book. You only need the standard edition and not the Premium Pack. The standard edition should be available from academic bookshops and on Amazon. Alternatively, Blackwell University bookshop can supply it for £26.99 plus free postage and packing. Blackwell’s e-mail address is [email protected] and the telephone number is 0117 9652573. Identify yourself as a GDL student in order to obtain the discount. You are not required to buy the accompanying Cases and Materials book.

Please note that this is the only textbook you will need to buy yourself; we shall supply all others when you join us and the cost of these is included in your fee.

We should like to emphasise that the aim of this pre-reading is not to make you proficient in procedure and practice - that should come later, at the vocational stage of training. Rather, it is to explain some references to procedure and terminology, so that when you come to read a law report, an Act of Parliament, a journal article or a legal textbook you can understand the context - and know where you can go to find an answer to queries that you may have. In addition, the course should help you to begin to develop the skills of legal argument, both oral and written, and skills necessary for the analysis of legal problems. You are not expected to understand and remember all that you read, but we hope that you will begin to appreciate the procedural backdrop of the legal principles that you will be studying on the GDL.

Some of you may already be very well versed in certain areas of law and procedure and legal method, but the majority of GDL students will have no background legal knowledge at all. Whether during induction or throughout the course, you will be able to

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help each other because co-operation and development through participation in small group work is very much a part of the pattern of the GDL at UWE. The object of the introductory sessions in the induction period is to set you on course for a demanding period of study, and it also has the important, but non-academic, aim of helping you to get to know your fellow students - and the teaching team - early in the course.

You will be required to sit a short English Legal System (ELS) assessment early in the course. For full time students, this will take place on Friday 4 October 2013 and for part time students Thursday 10 October 2013.

The assessment will take the form of a series of multiple choice questions (MCQs) to be completed in one and a half hours. The pass mark is 40% but you will not be given your mark – just notification of whether you have passed or failed.

It is essential that you attend the assessment on the specified date. Failure to attend will be regarded as a failed attempt (unless you can provide properly documented extenuating circumstances that are accepted by the GDL Examining Board).

The ELS assessment is “open-book” which means that you will be permitted to take certain reference materials into the assessment room. These are:

Elliott and Quinn, English Legal System This Preliminary Study Pack and any notes you produce in connection with it Any relevant materials that we supply during the induction period Any notes that you produce during the induction period

In order to prepare for the assessment you should:

read the specified chapters in the ELS text book, check the associated website for any updates read this Preliminary Study Pack read any tutor’s handouts and lecture notes on the preliminary study topics that

are provided during the induction period.

We also recommend that you practise for the ELS assessment by working through the MCQs provided on the website for the ELS text book.

We very much hope that you pass this assessment at the first attempt (as the vast majority of students do). If, however, you are unsuccessful, you will have two further attempts at it at times to be advised in due course. For the purposes of the GDL Assessment Regulations the ELS assessment is regarded as coursework taken under controlled conditions, rather than an examination.

A critical and evaluative approach to the strengths and weaknesses of the English Legal System will be further developed throughout the GDL course. Your tutors will also be looking for evidence of your legal method skills in all coursework, examination answers and contributions to group activities throughout the course.

We look forward to welcoming you for the start of the GDL at UWE in September.

The GDL teaching team

May 2013

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© Bristol Institute of Legal Practice

This pack comprises:

Introduction to Legal Method (pages 4 - 8) Introduction to Equity and Trusts (pages 9 – 12) Introduction to the English Legal System (Concepts and Definitions) (pages 13 -

17) Introduction to the Civil Justice System (pages 18 - 21) Introduction to the Criminal Justice System (pages 22 - 25)

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LEGAL METHOD

The aim of the introductory legal method session is to help you develop your legal reasoning skills. The starting point will be the English Legal System and the sources of law. The plenary sessions will introduce you to both the main sources of law and the fundamental skills required to apply these legal rules.

The focus of your pre-reading for Legal Method should be the Introduction and Chapters 1-5 of Elliot and Quinn’s English Legal System. You will also find it useful to read Chapters 6-9

You are also asked to prepare the Exercise (below) and to bring your answers to the induction week sessions. Please make sure that you have your own copy of the Elliott and Quinn text with you during the induction sessions. We normally programme a lecture on Legal Method for the first day of the induction session.

EXERCISE: MATERIAL FACTS AND RATIO

In each of the following cases the defendant was convicted of a drink-driving offence. The relevant statutory provision provided that upon such conviction:

"the court shall order (the defendant) to be disqualified for such period not less than 12 months as the court thinks fit, unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified."

Please read the following extracts from a sample of cases and answer the questions stated:

1. What are the material facts in each case?2. Formulate a ratio for each case.3. Identify any obiter dicta.

A v B 1947

1. "Nov 12 LORD GODDARD C.J. read the following judgment. The court has already allowed this appeal and now proceeds to give their reasons.

The respondent in this case was charged before a court of summary jurisdiction for the City of Birmingham.... with driving a motor vehicle, to wit a lorry, while under the influence of drink to such an extent as to be incapable of having proper control of the vehicle contrary to s.15 of the Road Traffic Act, 1930, He pleaded guilty ... ....the justices imposed a fine of £20 and ordered his driving licence to be endorsed, but in consideration of certain facts which they state in the case they refrained from ordering that he should be disqualified from holding a driving licence, and the question raised by the case is whether on the facts found by them there were any special reasons within the meaning of s.15 sub-s.2 of the Act which would justify the justices from refraining from imposing a period of disqualification..."

2. "The reasons given in the present case by the justices as the ground on which they refrained from ordering disqualification are:

a) that they had no knowledge of any previous motoring convictions against the respondent;

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b) that the retention of the licence was essential for obtaining his livelihood, and further that they had imposed a substantial penalty for the offence and in assessing that penalty they took into account that they did not intend to disqualify him. It is quite clear that the two main reasons which influenced the bench were that the respondent was a first offender against the Road Traffic Acts and that he earned his living as a lorry driver, and that his employment would be jeopardised by the suspension of his licence."

3. "It is to be observed that the sections are mandatory and that Parliament has provided that a period of disqualification shall be imposed ... they have given a discretion to the court which obviously is a limited discretion to be exercised only for special reasons. The limited discretion must be exercised judicially. The reasons inducing the court to exercise it must be special, and special is the antithesis of general. The fact that a man is a first offender or that he has committed no motoring offence for many years are reasons of the most general character that can well be imagined. Every year hundreds of first offenders are brought before courts. It frequently happens that people who have driven for very many years have been doing so without offending against the provisions of the Act. That a man is a professional driver cannot, as it seems to me, by any possibility be called a special reason. The fact that drivers are professional drivers would of itself indicate that they are more likely to be habitually on the roads than people who drive themselves, so there is all the more reason for protecting the public against them. By exercising discretion in favour of an offender because he is a professional driver or merely because he drives himself for business purposes, it is obvious that the court is taking into account the fact that in such cases disqualification is likely to work greater financial hardship than in the case of a person who uses his car for social or casual purposes. There is no indication in the Act that Parliament meant to draw any distinction between drivers who earn their living by driving or who drive for purposes connected with their business and any other users of motor cars. That in many cases serious hardship will result to a lorry driver or private chauffeur from the imposition of a disqualification is no doubt true, but Parliament has chosen to impose this penalty and it is not for courts to disregard the plain provisions of an Act of Parliament merely because they think that the action that Parliament has required them to take in some cases causes some or it may be considerable hardship. Had Parliament intended that special consideration was to be shown to professional drivers or first offenders it would have so provided.”

4. "What then can be said to be a special reason beyond saying that it must be one that is not of a general character? This was expressly considered by the King's Bench Division of Northern Ireland in the case of R v Crossan. In that case the court adopted a test that I had ventured to use in an address that I gave to the magistrates assembled at the Summer Assizes for Essex in 1937. I suggested that the reasons must be special to the offence, and not to the offender, and the court in adopting what I had said used these words: "A `special reason' within the exception is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a `special reason' within the exception".

I respectfully and entirely agree with and adopt this passage. While it is impossible to enumerate or define everything that can amount to a special

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reason, ......... in the case of driving under the influence of drink or drugs, perhaps one might be found if the court was satisfied that a drug had been administered to a driver without his knowledge, as for instance where a driver had taken a dose of medicine which he believed to be an ordinary tonic but which in fact contained a powerful drug.”

C v D 1970

"Lord Parker C.J. This is an appeal from a decision of Essex Justices sitting at Harlow, who, on the defendant pleading guilty to an offence contrary to section 1(1) of the Road Safety Act 1967, found special reasons for not ordering him to be disqualified.

The facts matter little: at 20 minutes past midnight on 12 January 1969 the defendant's driving of a vehicle attracted the attention of the police. They stopped him and asked for a breath test, and all the conditions were properly fulfilled leading up to the admission of an analyst's certificate showing 91 milligrammes of alcohol per 100 millilitres of blood. The defendant himself gave evidence that, the afternoon before the midnight in question, he had a cold and went to bed. His wife gave him a glass of whisky and ginger at that time. He did not know how much whisky there was in the glass, but the next day learned from his wife that it was a generous amount. In the evening he went to a friend's house to arrange about a holiday. He tried to obtain a taxi but could not get one, so went out in his own car. During the evening he had two pints of beer and a glass of ginger wine. At the time when he was stopped, during the early hours of 12 January, he was taking a friend home.

The justices find five special reasons, but on analysing them it is quite clear they fall into three categories....

The second category is in this form:

‘(b) the defendant was a careful person who would have not risked driving with more than the prescribed level of alcohol had he known', and `(c) there had been no necessity for him to give his friend a lift and he would not have done so if he had had any idea that he was not in a fit condition to do so’.

There again it is, in my judgment, quite clear from the many cases on this subject, not merely under the Act of 1967 but under the Road Traffic Act 1960, that that could not conceivably be a special reason. The facts are special merely to the offender and not, as they must be, special to the offence.

Finally, and no doubt this was the real point which influenced the justices, they state:

‘(e) the defendant was served his whisky in bed by his wife for medicinal purposes and did not know the strength of the drink’.

For my part I am quite unable to think how that can be a special reason. No doubt the wife, as any wife would on such an occasion, did give her husband a generous measure of whisky for his cold, but he knew full well that he was drinking whisky, and drinking whisky for a cold. It is quite different, it seems to me, from the case which may arise and may amount to a special reason though I am not saying that it does, where a man thinking he is drinking, we will say ginger ale, has, unknown to him, strong drink put into it behind his back. Ignorance of the quality of the drink may amount to a special reason, but ignorance of the exact quantity that he is drinking cannot in my judgment do so. Justices very naturally strain to find special reasons in these cases, but it must now be known that special reasons for the purpose of section 1 of the Road Safety Act 1967 must be very rare indeed. I would allow this appeal and send the case back to the justices with a direction to disqualify".

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E v F 1971

"Sir John Widgery L.C.J. gave the judgment of the court. The appellant pleaded guilty at South-East London Quarter Sessions to one count of driving with an excess of alcohol in his blood, and he was fined £35 to be paid at £5 per week and he was also disqualified, his licence being endorsed. He now appeals against his sentence.....

What happened at the trial was this. The evidence of the blood test showed that the appellant had 84 milligrammes over the authorised maximum of 80. He gave an account of his movements on the day in question, the broad effect of which was that he had been out with two friends, that they made a practice of detailing one as the driver when they went out together, and it was the custom for the man detailed as driver to restrict his drinking severely. On this occasion, said the appellant, he was detailed as driver, and all that he had in the whole evening was two half-pints of lager and lime, but he said that he had discovered since the event that one of his friends with a misguided sense of humour had put some vodka into the lager and lime, and in due course the friend in question told the deputy chairman so......

The deputy chairman went on quite correctly to say that if a man's drink has been laced unknown to him and if, as a result of that act by a third party he commits an offence, that is to say, the alcohol content of his blood goes above the permitted maximum, that is a special reason which justifies the court in its discretion in not disqualifying the driver from further driving. The deputy chairman understood that..... but he seemed to have erred in this way. He seems to have thought that a special reason would not have been provided by the insertion of the vodka into the appellant's drink unless the vodka alone amounted to 84 milligrammes of alcohol per 100 millilitres of blood.

What in our judgment he should have considered was whether the vodka resulted in the total alcohol content exceeding the statutory limit. In other words, he should have asked himself whether on the facts of this case the vodka had caused an alcohol content which was below 80 milligrammes to become a content in excess of 80 milligrammes. Looking at it in that way, no one could doubt at the end that the vodka may have produced, and almost certainly did produce, a sufficient increase in the alcohol content to bring the appellant's alcohol content above 80 milligrammes and up to 84 milligrammes. Accordingly there was a special reason ....."

G v H (1975)

"Lord Widgery C.J. This is an appeal by case stated by Essex Justices..... where..... they had before them an information..... that the defendant on 14 February 1974 at Chelmsford drove a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded the statutory maximum contrary to section 6 of the Road Traffic Act 1972. The justices received a plea of guilty to the charge..... and the only argument..... is whether this was or was not a case in which it was compulsory to disqualify the defendant..... The justices found that there were special reasons which excused their imposing that disqualification. The question for us is whether as a matter of law those special reasons could be said to exist in this case..... He (the defendant) had gone with two colleagues to attend a business meeting at a club and the meeting lasted from 8pm to 11.45 pm, nearly four hours. During that time, the defendant said and the justices accepted his evidence, he had drunk two pints of lager and no more. He had one pint at about 8.20 pm and the other at about 9.30 pm. He had not, according to the facts found, gone to the bar to obtain those drinks. Someone else had obtained them for him and, as I understand it, had paid for them on his behalf. Thus the pints of lager were delivered, as it were, anonymously in front of him at wherever this business meeting was taking place. He had no other drinks beyond those two pints.

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At that club there were normally two types of lager on sale. One was called `Stella' and the other was `Carling Black Label'. `Stella' was the more expensive and the stronger, and the defendant says that he would not have drunk `Stella' had he known that that was what he was being offered because his preference was for the other, cheaper and milder beer .....

The justices obviously gave careful attention to this case..... They came to the conclusion that two pints of lager would not normally produce 90 milligrammes of alcohol per 100 millilitres of blood, and they looked for a reason why that should happen. They expressed as their opinion that the fact that the defendant's alcoholic content had reached 90 milligrammes is to be explained by the fact that he had drunk the stronger `Stella' instead of `Carling Black Label' lager.

The principle on which this type of case has to be decided is now clearly laid down. It has been said over and over again that a man who chooses to combine in one evening both drink and driving a motor car does so at his peril, and it is for him to see that the amount of alcohol which he consumes does not bring the content in his blood above the statutory maximum. It is his duty to observe the quantity and quality of the drink that he consumes, and if he makes a mistake and in fact takes more alcohol than is justified by the statutory limit, then he is guilty of the offence and prima facie has no excuse to offer against the suggestion that he be disqualified.

There has, however, grown up a gloss on this doctrine which is concerned with the so-called `laced-drinks' cases. We have had in this court at least half a dozen cases in the last year or so in which a motorist with too much alcohol in his blood has pleaded as an excuse for what has happened that someone else has put strong spirit into an otherwise innocuous drink, or `laced it', as the vernacular would have it at the present time. In those cases, however, there has always been an element of intervention by a third party or a misleading of the motorist by a third party. They have all been cases in which the driver has been induced to take stronger drink than he normally would by reason of someone having misled him or given him false information..... This, I fear one must say, is a perfectly straightforward instance of a man who made no inquiry about what he was consuming and merely received and drank the two pints of lager which were delivered to him. It seems a harsh thing to blame him for not having made further inquiry, but the purpose and scheme of the Act is perfectly plain. It throws on anyone who chooses to drink and drive the obligation to see that he does not take drink in excess of the amount laid down.

Hence, although, as I have said more than once, I think that the defendant was unlucky and I have sympathy with him, I am of the opinion that the justices' conclusion that there were here special reasons cannot be sustained. I would allow the appeal ....."

Shomon Khan

May 2013

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INTRODUCTION TO EQUITY AND TRUSTS

Please note that you will study the Equity and Trusts in detail as a Foundation subject in the second half of your course (either teaching Block 2 for Full-time students or Year 2 for Part-time students). This material is to provide a short background to your study of the English Legal System and to identify the importance of the development of Equity in particular.

Chapter 7 in Elliott & Quinn is the recommended reading

Equity and Trusts is one of the Foundations of Legal Knowledge and the subject is studied in depth on the GDL either during Teaching Block 2 of the Full-time course or in year 2 of the Part-time course. That course will concentrate upon Equity’s greatest invention – the trust. These materials should be read as part of your introduction to the English Legal System at the beginning of the course.

Historical Background of Equity

In everyday usage, the term “equity” conveys the idea of “fairness”: in the legal sense, it denotes a body of law that is supplemental to the common law – as Maitland described it, a body of rules and principles that form an appendage or gloss on the common law. Equity developed as a response to the rigidity of the common law: those without redress under the writ system developed in the early centuries of the last millennium began to petition the King and his Council, who referred them to the Chancellor as the King’s most important adviser. In time, the Chancellor began to make decrees upon his own authority through the Court of Chancery over which he presided. Originally, the Chancellor’s powers were rather vague but gradually a systematic approach was developed based most notably upon the concept of “conscience” – a not entirely surprising importation from Canon Law since all the medieval Chancellors were ecclesiastics. In theory, this concept was founded upon ideas of universal “natural justice” rather than the subjective opinion of the Chancellor of the day: however, in practice, the standards applied tended to vary – in the famous saying – according “to the measure of a chancellor’s foot”.

By the 17th Century, a body of precedent had begun to be developed and it had become established that the rules of Equity would prevail over those of the common law where there was a conflict between them. [This position has been preserved by statute now that, by virtue of the Judicature Acts 1873 and 1875, all courts administer both sets of rules.] The result is that, whilst the idea of “conscience” can still be said to be the basis of Equity’s approach, its “intervention” is made in accordance with a body of settled principles. No claimant has a right to equitable relief (equitable remedies always have been and remain discretionary), and the claimant’s conduct and other circumstances will be taken into account in determining whether an equitable remedy should be granted in the particular case before the court.

Equitable estates (effectively interests in land recognised by Equity) were developed to deal with deficiencies in the common law system. The Chancellor could not, of course, ignore the existence of a legal estate in land, but he could compel the estate owner to exercise the incidents of his “legal ownership” in a particular way because “conscience” so required. Thus, where a knight was preparing to go off to the Crusades it became the practice to vest that knight’s estate in land in a friend to hold “to the use of” the knight and (until his return) the knight’s lady and children, or if he died abroad to the use of the knight’s eldest son. If the friend, on the knight’s return, refused to re-transfer the land to the knight there was no common law remedy available (because the friend would be recognised as the estate owner). The

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intervention of Equity was needed to provide appropriate redress. A similar situation also arose where (for example) vows of poverty prevented land being conveyed directly to a monastic order, so that it was conveyed to a knight to hold to the use of the order. If the knight retained the benefits for himself, he could be forced to convey the land to someone else to hold to the use of the order. The “use” was also employed to “circumvent” the rule that land could not be devised by will and thus avoid feudal dues that would otherwise arise on death.

What began life as the “use” has evolved over time into the “trust” as we know it today. Developed originally in relation to interests in land (in earlier times the primary source of wealth), as other forms of property have also become significant sources of wealth (for example stocks and shares, antiques, works of art), the principles that now regulate the modern trust have proved equally viable and effective in relation to these other forms of wealth.

Legal and equitable ownership

A feature that is peculiar to English law (and to those systems derived from it) is that it has developed two different concepts of “ownership” of property, rooted in the historical evolution of the common law and Equity briefly outlined above. Both types of ownership can exist simultaneously in the same item of property, and an appreciation of this phenomenon is central to an understanding of how a trust “works”.

The two types of ownership are conveniently categorised as “legal” and “equitable”. Historically, the former would have been recognised by the common law courts and the latter by the court of Chancery (which prior to the fusion brought about by the Judicature Acts 1873 & 1875 administered the rules of equity). In the case of the trust, the legal ownership resides in the trustee whose role is essentially one of management: it involves burdensome duties of a fiduciary nature, which we shall be exploring during the Trusts course. A trustee must act in the interests of the beneficiaries under the trust and the trustee is not permitted to make a personal profit for him/herself. The equitable owner is the beneficiary, who is entitled to the enjoyment of the property: his or her position is therefore closest to being what might be termed “real” ownership and has real value. Anything that is capable of being owned is capable of being held on trust.

Legal and equitable remedies

Legal and equitable remedies are still generally considered to be distinct, despite the fusion of the legal and equitable systems. The common law remedy is usually a monetary one – damages for breach of contract or in the tort of negligence, for example. However, in some cases damages will not be a sufficient remedy and the claimant may be able to obtain an equitable remedy such as an injunction to restrain a threatened breach of contract or a threatened nuisance. It is important to realise that such equitable remedies are not available in respect of breach of a common law duty where a monetary award would be sufficient compensation for the claimant. Equitable remedies are always at the discretion of the court and are usually only awarded in cases where traditionally an equitable remedy has been available. The doctrine of precedent applies just as it does to common law rules and remedies.

Equitable remedies could be said to be more complex than the common law ones and extend not only to injunction and specific performance but also, for example, to rescission, rectification, equitable tracing or the imposition of a trust.

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The equitable maxims

You will come across these occasionally in Block 1/Year 1 and more particularly in Property and Trusts in Block 2/Year 2. They are a series of fundamental principles underpinning equitable intervention in the various areas of law and they highlight the ecclesiastical origins of the jurisdiction, its emphasis on conscience and its flexibility. They are not to be regarded as binding rules which will determine the outcome of specific cases.

Most textbook writers list 12 or 13 “core” maxims or principles though you may these lists differ slightly in their composition.

Here are some of the main examples (in italics, with some brief explanation following):

Equity will not suffer a wrong to be without a remedy

Underpins the whole equitable jurisdiction and particularly illustrates the historical development of the trust, but should not be taken as an indication that an equitable remedy will always be available!

Equity follows the law

Highlights the supplementary nature of the jurisdiction – equitable rules do not generally form a complete system in themselves. In most cases, equitable rules are in line with the common law and do not contradict it.

Delay defeats equities

Relevant to equitable remedies, where the usual statutory limitation periods do not always apply but instead the claimant may be barred by unreasonable delay – another illustration of equity’s emphasis on conscience, in which the claimant’s, as well as the defendant’s, behaviour is relevant.

He who seeks equity must do equity

Can be seen in the field of remedies for example the principle that a claimant who seeks rescission of a contract must be prepared to return all benefits received under it.

He who comes to equity must come with clean hands

Closely related to the previous maxim but referring primarily to the court’s approach to the claimant’s past behaviour, for example the denying of a remedy to a claimant who has committed an illegal act. The clean hands do not however refer to bad character generally but must relate to the matter in hand!

Equity looks to the intent rather than to the form

The court will look at the substance of the transaction rather than at its form or appearance. An example in the law of trusts is that the court may still enforce an oral declaration of trust relating to land (which statute usually requires to be evidenced in writing) in order to prevent fraudulent or unconscionable behaviour on the part of the defendant.

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Terminology

In your reading you may encounter the word “equity” used in a number of difference senses and this can be confusing.

As we have seen above, equity is the term often used to describe the body of law developed originally in the courts of equity.

An equity is the right to seek an equitable remedy (such as the right to rescission on the ground of undue influence or the right to have a document rectified) as distinct from an equitable interest such as that of the beneficiary under a trust, which amounts to a property right which is capable of being sold or assigned by the beneficiary. However, to confuse the picture mere equities are also sometimes called equitable rights!

Try not to worry if you do occasionally become confused: you are in good company as even members of the judiciary have sometimes expressed their exasperation at the lack of clear definitions in this area of law!

Conclusion

In recent cases such as Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 the court has reiterated the role of conscience in the development of equity and trusts. Hudson in Equity and Trusts (3rd edition at page 7) says that:

“equity is an ethical response which English courts deploy in circumstances in which other legal rules would otherwise allow a defendant to act unconscionably.”

And later at page 8:

“Thus, equity exists to rectify what would otherwise be errors in the application of the common law to factual situations which the judges who developed common law principles or the legislators who passed statutes could not have intended.”

Equity and Trusts teamMay 2013

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ENGLISH LEGAL SYSTEM

CONCEPTS AND DEFINITIONS

This document supports a lecture that will be given during the Induction Week (Full-time) and Induction tuition session (Part-time Year 1). It primarily offers explanations of certain key words and phrases, the meaning of which may vary according to the context in which they appear.

The recommended reading is Elliott & Quinn -Chapters 6 and 9and also all of Parts 3 and 5.

1 NATURE OF LAW

▫ “Law is a formal mechanism of social control” Smith & Keenan, English Law, page 1

▫ “Law is the cement of society and also an essential medium of change” Glanville Williams, Learning the Law, 11th ed page 1

▫ “We conduct our lives according to all manner of learned or agreed rules of conduct. These include our own internalized moral code, unconsciously followed rules of etiquette and civilized behaviour…” Legal rules are those that are backed by a sanction if they are broken, enforceable by a court of law, a tribunal or arbitration. Eddey & Darbyshire. The English Legal System,7th edition, p 3

▫ General public’s attitude to law often focuses on the role of the criminal law in maintaining public order but the law also provides mechanisms for settlement and resolution of disputes between individual members of the society e.g. when contractual promises are not kept, neighbours get into a dispute about the height of a boundary hedge; employer/employee disagreements and disposal of property in life and after death.

2 CATEGORIES OF LAW

Note how the context can affect the meaning of a phrase such as "common law":

2.1 Common Law and Civil Law

This categorisation refers to distinct legal systems i.e.

Common law Civil law

English; US and Commonwealth Those systems influenced to a greater extent by Roman law and Germanic thinking, leading to the codes of continental Europe and those countries once in their respective control

Arguably offering greater opportunities Codification of abstract principles with to the judiciary to be flexible to novel arguably fewer opportunities for thesituations (plus stare decisis) exercise of judicial discretion

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NB: In some contexts “civil law” means specifically Roman law, hence the word “civilian”.

2.2 Common Law and Equity

This distinction refers to a division within the English Legal system itself. Sometimes the contrast is simply drawn between “law” (meaning common law) and equity.

2.2.1 Common law

What we now call common law began to emerge after 1066 when the centralized, sovereign power of the king could be enforced throughout the country for the first time. Judges were sent out from Westminster to impose laws that were “common” rather than local to a given region. The King’s Council (Curia Regis) was the origin of the early principles but gradually its jurisdiction was divided up into different courts – King’s Bench (now QBD); Exchequer; Common Pleas (These last two courts no longer exist). Petty distinctions in formalities and procedures came to be more important than the substance of the claim and injustices abounded.

2.2.2 Equity

The King was considered the “fountain of justice” and it was possible to petition the King directly. Such pleas would be handled by the Lord Chancellor, the “Keeper of the King’s conscience”. He was not constrained by the formalities of the common law courts and could dispense justice according to the merits of the case (hence the phrase that Equity varied with the “length of the Chancellor’s foot”) – but this flexibility could have the consequence of lack of clarity and consistency. Eventually these matters were handled by the Court of Chancery (we still have the Chancery Division). The case of Jarndyce v Jarndyce in Bleak House by Charles Dickens is an indictment of the workings of the Court of Chancery. It became a byword for inordinate delays and costs. However, the word “equity” itself retains the meanings of fairness and justice.

2.2.3 Judicature Acts 1873 – 1875

All judges in the newly established Supreme Court of Judicature were empowered to administer both principles of common law and those of equity i.e. procedural fusion was achieved but whilst the “two streams” were said “to have met and run in the same channel” - their waters did “not mix”.

Also in s 25(11)

“Generally 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 shall prevail.”

2.2.4 Remedies

GDL students may come across the distinction between common law and equitable remedies before they deal with the Foundation subject “Equity and Trusts”.

Common law remedies Equitable remedies

As of right, if claim proved Discretionary

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Claimant’s behaviour only partially He who seeks Equity must comerelevant with clean hands

Damages [monetary compensation that Injunctions (Tort)passes from the wrongdoer to the victim] Specific Performance

Rectification of documentsRecission (see Contract)

2.3 Common Law and Statute

This distinguishes between sources of law

Common law – consists of those legal rules created by either custom of the people or the judiciary whereas Statute law is that created by Parliament (legislation). Look at any Statute book to see the increase in legislation from the mid 20th Century onwards. Even this quick test does not disclose the further extent of secondary and tertiary legislation. Contract and Tort principles are heavily dominated by judge made legal principles.

2.4 Private Law and Public Law

2.4.1 This distinction is often used to denote the difference between those legal rules and principles that regulate dealings and disputes between citizens (private law) and those by which the organs of the state administer the relationship between the State and its citizens (public law – which is studied as a GDL subject)

2.4.2 An alternative meaning can arise in sense of those matters that are within the private sphere and which individuals should regulate as opposed to those which are within the public sphere and in which the state should interfere to regulate eg criminal law whereas Contract is sometimes argued to be an illustrative example of private law. However, this fails to acknowledge the extent of state intervention in areas of contract where consumer protection is thought to be good for society as a whole.

2.5 Civil Law and Criminal Law

This distinction will be immediately obvious to any student starting the GDL course. Civil law (e.g. Contract and Tort) regulates the relationships between individuals and enables them to settle disputes without resort to personal violence! Crimes affect society as a whole as well as the individual victim and the State re-enforces desirable behaviour by punishing those found guilty of committing crimes. The distinction cannot be found merely by looking at the conduct of the accused by itself because many acts can be both criminal and tortious. For example, the crime of rape is also the tort of trespass to the person. If the victim sues the wrongdoer in the civil courts, certain procedures would be followed and the remedy would be a civil remedy; if the rapist was prosecuted in the criminal courts, differences in procedure and available remedies would become apparent.

Civil law Criminal law

Standard of proof: Standard of proof:Balance of probabilities Beyond reasonable doubt

Civil courts and related procedures Criminal courts and related procedures

Action brought by the aggrieved Action normally brought by the State

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Individual, often at own expense

Civil remedies to redress the wrong Criminal remedies (eg fines and imprisonment - elements of punishment, deterrence and rehabilitation)

2.6 Substantive and Adjectival (or Procedural) Law

Substantive law – tells us what a person’s rights and duties are, under the law.

Adjectival law – tells us how those rights and duties will be enforced, most obviously through the rules of procedure and evidence.

Very broadly, the GDL is concerned with substantive law and your knowledge of procedure and evidence will be developed at the vocational stage of training (whether LPC or BPTC)

3 SEPARATION OF POWERS

This phrase describes the principle that the three functions of government should be kept distinct and separate – legislative, executive and judicial. (Note the problem with the role of Lord Chancellor (normally a political appointment) within the English Legal System).

3.1 Parliamentary sovereignty

After the Civil War, Parliament became sovereign i.e. it can make and unmake any law it chooses but the independence of the judiciary was secured in the Act of Settlement 1701. 3.2 Judicial independence

To what extent should the legal system operate autonomously, independent of the power of the State? Opinion has differed over the role of the Lord Chancellor, who straddles both the executive and the judiciary.

“Rather than being the voice of the judiciary in Cabinet, he (Lord Irvine of Lairg) is suspected by some, as was his predecessor (Lord Mackay of Clashfern), as being the voice of the Cabinet in the judiciary.” Smith and Keenan, p10. [Names added]

These matters will be explored in more detail in the Foundation subject of Public Law which is studied in Teaching Block 1 (Full-time) and Year 1 Part-time.

4 THE RULE OF LAW

Not a precisely defined concept but a measure by which State practices can be assessed. During the 20th Century and ongoing, there has been extensive encroachment by the State in the lives of individuals / citizens, with wide-ranging delegation of enforcement to various groups / quangos.

4.1 Human Rights Act 1998

The explicit recognition of “human rights” shows a realm beyond the sovereignty of Parliament. Before this Act, many judges saw it as part of their role in the maintenance of the Rule of Law, to protect fundamental human rights by reference to

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the Convention. In English law this had been seen as a person’s right to do what they chose unless it was forbidden or prescribed by the law.

1950 UK was one of the original signatories to the European Convention on Human Rights

1966 recognition by UK of power of ECHR to hear, and adjudicate upon, complaints from UK citizens.

1998 Human Rights Act enacted and came fully into force from 3rd October 2000.

The impact of the HRA will be examined within the Foundation subjects throughout the GDL course.

5 INDICATIVE CHARACTERISTICS OF THE ENGLISH LEGAL SYSTEM

The Common Law – major contribution by the judiciary over several centuries

Lack of Codification – compared with most civil law countries

Adversarial procedure – a superficial comparison is often made with the inquisitorial procedure of continental European countries

Jury trial – now very rare in civil cases and under threat in some criminal trials

Lay Magistrates – very heavy volume of work is done by “lay” people within the legal system. Add to the lay magistrates, all those lay people involved in arbitration, tribunal work and those who sit as jurors.

May 2013

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INTRODUCTION TO THE CIVIL JUSTICE SYSTEM

The aim of your introductory study of this area is to provide you with a general understanding of the structure and workings of the civil justice system as part of your study of the English Legal System.

It is also intended to provide you with an understanding of the practical context within which the principles of tort and contract (and other areas of your CPE course) are developed and tested through the civil court system.

Sessions in September

There will be a lecture and a workshop (or seminar) about the civil justice system

Pre-reading for the lecture and workshop (FT) / seminar (PT)

Please read the following Chapters in English Legal System – Elliott and Quinn:

The Civil Justice System. This will give you an overview of the history and procedure of the civil system.

Paying for Legal Services. You should read the whole chapter but for the purposes of this aspect of the course pay particular attention to the sections dealing with the funding of civil claims.

Alternative Methods of Dispute Resolution. This will introduce you to the principles and methods available to settle civil claims without the need to use the civil court system fully or at all.

Other chapters in the book would also be useful reading as a general background to your studies, in particular the chapter about Tribunals and the sections dealing with the judiciary. Due to the limited time we will have in the lecture and workshop we will not discuss these areas in depth in the sessions however.

Preparation for the workshop (FT) / seminar (PT)

Part A

Please prepare short answers to the questions set out below and bring them with you to your workshop.

1. What is the main purpose of civil law and proceedings to enforce it, how does this vary from criminal law and proceedings?

2. Can you identify any implications of such difference in purpose in the way in which the law and procedure operates in the civil system as opposed to the criminal system? (You need not write a thesis here! Just try and think of one or two examples.)

3. What is the purpose of the overriding objective? (This is set out in the book

but you may like to find a copy by accessing the civil procedure rules from the Ministry of Justice website at justice.gov.uk. It appears at Part 1 of the Civil Procedure Rules – it will give you a sense of what is going on in the system if you have a little look at the MoJ website.)

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4. What are “pre-action protocols” and what is their purpose within the civil justice system?

5. What are the case allocation tracks? Identify one feature of each track which would affect a case allocated to it.

6. What are the main incentives or pressures on parties to settle civil court proceedings without proceeding as far as a trial?

7. What is ADR? Explain how a case could be resolved using this method as opposed to through a trial in a civil court.

8. What are the alternative methods by which civil litigation may be funded?

Part B

Please read the three short case studies which are attached to these instructions. What issues can you identify that will affect the way in which the civil courts will deal with each case? Please prepare short notes of your thoughts.

During the session you will be asked to discuss one or more of the case studies with a sub-group of students with a view to preparing a short presentation on the advice to be given to each client.

Other suggested activities

If you are able to do so visit your local county court and sit in on part of a county court or high court matter which is being tried. If you ring in advance the court clerks will be able to tell you what matters are listed for hearing in what courts.

There have been a number of reforms to the Civil Justice System which came into effect in April 2013 (referred to as the “Jackson” reforms). Keep an eye out in the press or online for references to changes which are bedding down during this year.

I look forward to meeting you in September!

Rachel WoodMay 2013

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Part B – Preparation for Civil Procedure Workshop (FT) / seminar (PT)

You are an assistant solicitor in the Dispute Resolution Department of the firm Baxter and Partners. Today you have a very busy diary, three potential clients are coming in to see you for an initial interview about disputes they are involved in.

Consider the scenarios they present to you. What advice would you give in each case about how the civil courts would deal with their cases? Also consider any particular problems or questions that the potential client raises. (You do not need to consider the legal principles relating to each cause of action when carrying out this exercise – you should focus on the procedural and practical issues raised.)

Claire Cookson

Claire entered into a contract five months ago with Steam and Spa Limited for the supply and fitting of a hot tub in her back garden. Although the tub worked well for a few weeks it then sprang a leak. Steam and Spa promised to come and repair it several times but did not turn up. When eventually someone did turn up he told Claire that she must have been misusing the tub and that it was not the company’s problem.

You consider that Claire has a potential claim for breach of contract against Steam and Spa Limited. Claire’s enquiries to other hot tub suppliers suggest that the tub will have to be replaced at a cost of £3,000.

Claire wants to pursue Steam and Spa because she thinks they should not be allowed to get away with providing such shoddy service and products, however she is very concerned about being involved in a formal court trial as she gets very nervous if she has to speak publicly.

James Powell

James was involved in a car accident three months ago. He was a passenger in his friend Tim Johns’ car. Tim lost control of the car and hit the central barrier on a dual carriageway. No-one else was involved in the crash. Tim is being prosecuted for driving without due care and attention and is due for trial at Bath Magistrates Court next week.

James suffered back and neck injuries in the accident. You advise that he has a potential claim in negligence against Tim. Based on the limited information James is able to give you, you estimate that the claim for pain and suffering and loss of earnings will be in the region of £12,000, should he succeed at trial.

James is very distressed and upset with his friend, he says to you

“ I want this sorted out as soon as possible, he is clearly out of order, I want you to get me legal aid to pay for my case. Anyway he is up before the court next week so surely it can be sorted out then? The magistrates can deal with my claim can’t they. I need the money soon, I am not working and I can’t pay my mortgage. It won’t take long will it?”

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Helen Winter

Helen is an architect. Her practice has been served with a claim issued in the Queen’s Bench Division of the High Court, alleging professional negligence relating to the design of a private house for a local businessman, Michael Taylor.

Helen believes that the major part of the problem lies with Mr Taylor and the builder, not the plans, she is aware that Mr Taylor has been putting pressure on the builder to make changes to the build without consulting her. However she is concerned about the work of a junior architect on the project and thinks that it could have contributed to the problems. The project is costing several hundred thousand pounds and a conservative estimate suggests that if Mr Taylor’s claim were to succeed damages could be in the region of £250,000.

Helen is very anxious to deal with the claim without the need to proceed to a trial. From what she knows of Mr Taylor, Helen thinks that he will also want to settle the matter without the fuss of a trial. He can be full of bluff but is essentially a fair man who is always keen on a deal in his business life.

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CRIMINAL JUSTICE SYSTEM

Introduction

The aim of this part of the introductory course is to provide you with a general understanding of how the system works, in the context of the English Legal System as a whole. We will look at some relevant evidential and procedural issues, which in turn will enhance your study of criminal law and not leave you distracted by confusion or non-recognition.

The objectives of the preliminary study of the criminal justice system are as follows:

to gain an understanding of how the criminal justice system works in practice;

to identify which courts have jurisdiction over criminal cases;

to appreciate how the appeal system operates in criminal cases;

to develop a critical approach to reading material (especially in the press) concerning criminal justice issues;

to be able to suggest and to evaluate proposals for reform of the criminal justice system;

to recognize the characteristics of summary trial and trial on indictment (jury trial); and

to equip you to study substantive criminal law, being aware of the law in action as well as in theory.

September sessions

There will be a lecture and workshop for Full Time students and a lecture and a seminar for Part Time Students. These sessions will pick up some of the issues that you will have read about.

Preparation

Read Elliott and Quinn’s English Legal System, Chapters 12, 13, 19 and the criminal justice element of Chapter 24. As relevant background reading, please also read Chapters 10 and 11. We are aware that this is a great deal of reading and suggest that you read one chapter per week, perhaps make notes, and absorb it fully before moving on to the next chapter the following week.

Prepare answers to the questions set out below for discussion at the Workshop or Seminar

Please fill in the Feedback sheet at the end of this section, ready for handing in at the end of the lecture. Some of the issues raised will be picked up on in discussion in the workshop or seminar

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Other suggested activities

If you are able to do so, visit a magistrates'' court or a Crown Court and note your reactions to what you see and hear there. Better still, visit both and compare them. It is worth enquiring in the court office about which specific court may be best for you to visit. Let them know you are a law student – generally the members of staff are very keen to help.

Begin to take particular note of what you read concerning criminal justice in a quality newspaper (most are readily available on-line). Note how often criminal justice matters are mentioned in the popular press and in political discussions and generally

You could try visiting some of the websites noted in Elliott and Quinn’s English Legal System.

There are some multiple-choice questions, and practice exam questions available on the Companion website provided by Pearson’s. Access is detailed on the inside front cover of Elliott and Quinn’s English Legal System.


QUESTIONS FOR DISCUSSION IN WORKSHOPS (FT) / SEMINARS (PT)

1 How do Crown Prosecutors decide whom to prosecute and for what offence?

2. What does the phrase “triable either way” mean?

3 Alan pleads not guilty in the magistrates' court. To which court(s) may he appeal and on what grounds?

4 What routes of appeal are open to the Crown in criminal cases?

5 What do you consider to be the practical significance of trial by jury?

6 What reform of the criminal justice system would you advocate? Be prepared to present a reasoned argument in favour of your proposal.

We look forward to meeting you in September.

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FEEDBACK

On this sheet, please make notes on your overall reaction to what you have read concerning the operation of the Criminal Justice System. What, if anything, surprised or baffled you? Is there any aspect of the system which you would like to see altered, and why? If you have had any experience in the system in any way, does what you have read accord with that experience?

You will be asked to hand in your notes on this sheet at the lecture and then we will discuss your reactions with other students during the introductory sessions. Your reactions to the mode of study as well as to the substantive material will be most appreciated.

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