ENGLISH for LAW SCHOOL STUDENTS

(Note de Curs pt. anul I DREPT I.D.)

Unit 1. The Legal Profe ion

1.1 The !i"i ion of the legal #rofe ion
Unlike in most other countries the legal profession in England and Wales is divided into two branches and the expression lawyer may be used to refer to either a solicitor or a barrister. This duality of function between barristers and solicitors is peculiar to the English common law system and indeed is even not followed in the !iff United "tates. #ead the following extract which outline the differences between barristers and solicitors.
$n the popular mind the distinction between barristers and solicitors is that the former are concerned with advocacy in court while the latter are concerned with legal work out of court. This is not %uite the case. &arristers are primarily concerned with advocacy and they have an exclusive right of audience in the (igh )ourt the )ourt of *ppeal and the (ouse of +ords, but they are not confined to advocacy and may devote a deal of their time to giving expert opinions on legal matters. -or are solicitors exclusively concerned with out.of.court work for they have a right of audience in magistrates/ courts county courts and in some instances in the )rown )ourt. This division of the legal profession is a curious one and is unknown even in many )ommonwealth countries which might have been expected to adopt the English professional model along with their adoption of the common law. (ogan "eago and &ennett * Level Law 2"weet and 3axwell 04556 pp. 78.7.

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1.$ Legal e!%&ation an! training

The education of both barristers and solicitors has common features. &oth will complete the academic stage of their legal education The first or academic stage is normally satisfied by a law degree. *s an alternative non.law graduates and mature students 2over 8'6 can take a common professional examination at degree level. The second or professional stage consists of a full.time vocational course and final examination based to a greater extent on the problems likely to be encountered in practice. The solicitor takes the 9inal Examination under the aegis of the +aw "ociety while the barrister takes the &ar Examination under the aegis/ of the $nns of )ourt "chool of +aw This is followed by what is in effect an apprenticeship called articles for solicitors and pupillage for barristers during which the trainee does practical work under the close supervision of an experienced member of his profession. *s to their training the difference is more marked. *fter completion of the prescribed period of articles of clerkship the entrant will be admitted as a solicitor. 9or &arristers it is first necessary to be admitted to one of the four Inns of Court . :ray/s $nn +incoln/s $nn $nner Temple and 3iddle Temple. These are very old institutions dating from the fourteenth century. Each $nn is a combination of club college and professional organi;ation and is governed by its senior members or !enchers who are often <udges. * student intending to practise must attend a full.time one year course in +ondon in preparation for &ar 9inals. *fter passing the examinations the student will be called to the !ar by his $nn. &efore practising on his own account it is compulsory for him to undergo a period of pupillage by reading in cham"ers. #9or 08 months he will be the pupil of a senior barrister6.
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1.' Legal #ra&ti&e

The practising solicitor. The solicitor may be described as the person who deals directly with the client and where litigation is involved instructs the barrister. The origins of this side of the profession go back to the mediaeval $attornatus$ 2attorney6 who was . as the solicitor still is but the barrister is not . an officer of the court. The attorney/s business was originally to help the client in the preparatory stages of cases. $n the course of time a similar class of people practising in the )ourt of )hancery came to be called /solicitors/. &y the close of the 3iddle *ges the two sub.professions became merged. $n 05=' the Law %ociet& as the representative organisation of the solicitor/s profession came into being. The /attorney/ disappeared. The work of a solicitor is too diverse to classify. *fter admission the solicitor may take a salaried position in private practice or may seek an appointment with a local authority the civil service the 3agistrates/ )ourt "ervice a nationalised undertaking or in the legal department of a business concern. "olicitors may form partnerships but not limited companies. The solicitor is the person to whom an individual first turns for advice and in addition to dealing with a variety of legal problems he may be asked to advise on business and family matters. 3uch of his time may be devoted to dealings with property in particular the conveyancing of land and houses. 2)onveyancing is the legal process of buying and selling property6. "ince 051= it has been a criminal offence for any person other than a solicitor to undertake this work for gain. )onveyancing has become an important part of a solicitor/s work providing over half the income of the average solicitor/s practice. (e may also be concerned with drawing up wills the administration of estates and trusts matrimonial disputes the execution of mortgages the formation of partnerships and companies

taxation problems and representation of clients involved in criminal prosecutions and civil actions. "ome solicitors may specialise in one or more of these matters or there may be specialisation by the different partners in a firm. Where the solicitor does not appear as advocate himself he will be responsible for matters preparatory to the trial such as the preparation of documents and the collection of evidence, in particular he must take written /proofs/ of evidence from his witnesses. $n many cases he will try to negotiate a settlement with the other side for instance with the insurance company in accident claims. $n civil disputes he may be primarily concerned with getting redress for his client without recourse to the courts. There are some >1 111 practising solicitors in England and Wales. 3ost matters appertaining to the profession are sub<ect to statutory powers administered by The Law %ociet&. The practising barrister. $n the manner of the mediaeval guilds the &ar was by the fourteenth century organi;ed as an association of members of the Inns of Court. Today there are only four of the $nns left 2the $nner and 3iddle Temples +incolns $nn and :ray/s $nn. Even to this day no one can practise at the &ar unless he has been /called to the &ar/ and become a member of an $nn. The best way of explaining the functions of a barrister is to call him a /trial/ lawyer. &arristers are not allowed to form partnerships but a number will normally combine to share rooms or Cham"ers . The newly called barrister will take a room or a seat in existing chambers and wait for work to be given to him by a solicitor. (e may not advertise and may not normally deal with clients directly but only through a solicitor.

1.(. )%!ge
)ontrary to the practice in some continental countries there is no separate <udicial profession in England and all <udgeships are filled by the appointment of practising barristers. ?udges are not sub<ect to ministerial direction or control. They are normally appointed from practising barristers 2advocates in "cotland6 or solicitors. +ay magistrates are trained to give them sufficient knowledge of the law. *nother feature of the <udiciary in this country is that there is no established system of promotion. ?udgeships at any level including the offices of +ord )hancellor and +ord )hief ?ustice may be filled by practising barristers with no previous experience as <udges.

1.* )%!i&ial offi&e

The Lord Chancellor 2abbreviated as +)6 holds an office which is partly political and partly <udicial. *s a 3inister of "tate and member of the )abinet he holds office only for the duration of the :overnment. *s head of the <udicial system of the country he presides he is responsible for court administration except 3agistrates/ )ourts and for appointment of most <udges and magistrates. The Lord Chief 'ustice 2+)?6 holds the senior <udicial office in the country. (e presides over the @ueen/s &ench !ivision of the (igh )ourt and the criminal division of the )ourt of *ppeal. The (aster of the Rolls 23#6 presides over the civil division of the )ourt of *ppeal. (e has certain supervisory duties relating to solicitors. The )ttorne&* +eneral is a barrister. (e is the (ead of the &ar and the )hief +aw Afficer of the )rown.

(is deputy is the %olicitor* +eneral who contrary to his title is also a barrister. (e is also a political officer. The two are known as the Law ,fficers. The Director of Pu"lic Prosecutions 2!BB6 is a lawyer 2barrister or solicitor6 appointed by the (ome "ecretary who acts under the supervision of the *ttorney.:eneral. (e is amongst other things responsible for the carrying on of important criminal proceedings and giving advice in relation to prosecutions.

1.+ A!,ini tration of the laThere is no single person or body in this country responsible for the administration of the law in general or for particular matters such as the maintenance of the courts <udicial appointments the legal profession and law reform. While it would be true today to say that the ma<or role is played by the +ord )hancellor many functions rest with the (ome "ecretary the +ord )hief ?ustice the *ttorney.:eneral the !irector of Bublic Brosecutions the &ar )ouncil and The +aw "ociety. "uggestions have been made from time to time that these functions should be concentrated in a 3inistry of ?ustice but this has not been accepted by any :overnment. Berhaps some inefficiency is the price to pay to avoid the danger of vesting so much power in the hands of a single department.

UNIT $. INT.ODUCTION to ENGLISH LAW

$.1 The Nat%re of La3any books have been written and continue to be written about the nature of law. The word /law/ suggests the idea of rules, rules affecting the lives and activities of people. "ome of these rules such as the laws of science enable us to predict what will happen in a given situation but we have no control over them. We must accept for example the law of gravity, we regulate our conduct by it but we cannot alter it. $n any community or group of people man.made rules will develop to control the relationships between members. When a person or persons having power in the community enforces the rule then that rule will ac%uire the status of a /law/ in the generally accepted meaning of the word. *s the society develops and becomes more complex rules of a more definite nature emerge and a body of law comes into existence. *t the same time some machinery for its enforcement must be established .

$.' THE CO//ON LAW

Origins of English law Until and for some time after the -orman )on%uest it could scarcely be said that there was such a thing as English law. There was a court in each shire, these courts were under the control of a local baron or other powerful person. The -orman )on%uest made little immediate impact upon English law. William $ promised that the English should keep their rights and their law which meant the customary law. *t the same time the

-ormans developed a strong central government and over the following 811 years greatly increased central control over the administration of the law. William $ had used travelling commissioners to compile his national inventory known as the !omesday &ook and this system had also been used to en%uire into matters of local administration. The next step was to send out travelling commissioners with <udicial powers. ?udicial powers were given to be exercised at the sittings or *ssi;es of the itinerant <ustices. The *ssi;es 2regional hearings6 dealt with both civil and criminal cases. The emergence of common law The new institutions particularly the travelling <udges brought with them a most important change in the law itself the unification of the varying local customs. *s they went around the country on circuit the <udges tended to select and apply certain customary rules in all cases rather than rely in every case upon en%uiring into local customs. This process was assisted by the Cing who sometimes created new legal rules which were to apply nationally and by the permanent courts which had nation.wide <urisdiction. $n particular (enry $$ created important new remedies in relation to land law. The different local customs were therefore replaced gradually by a body of rules applying throughout the country and known eventually as the common law. This process was substantially completed by the end of the thirteenth century. The <udges accordingly looked to previous decisions for guidance in order to maintain consistency. $n other words the doctrine of precedent began to emerge. $f previous decisions were to be followed it was essential that the <udges/ decisions be recorded and we see the beginning of law reporting at first by anonymous lawyers in the Dear
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&ooks. The main stream of English law therefore began with the unification of local customs to form the common law and has been developed down to the present day by the <udges as precedent has been built upon precedent. There are three basic meanings of the term common lawE . The most modern use of the term represents a particular set of rules based on <udicial decisions in contrast to statute law and in contrast to the rules of e%uity. .$t means national law the general system of law which is common to the whole country. .$t means law based on precedents the term common law describing the historical development of law in England and Wales.

$.( E0%it1
)ommon law which by the end of the thirteenth century was well established but which had already ac%uired a degree of rigidity. *s the common law courts became separated from the Cing/s )ouncil they became increasingly reluctant or unable to grant remedies for new and unfamiliar types of wrong. *s conditions changed and new forms of property and interests in property developed there came to be many types of wrong for which the courts could grant no remedy. "ub<ects unable to obtain a remedy from the common law courts would petition the Cing asking for <ustice and these petitions were usually passed to the )hancellor. The latter was empowered to order the parties to appear before him under penalty for refusal and after hearing the petition he could make such order as appeared to him to be fair <ust or /e%uitable/. These sittings of the )hancellor became more regular and by the end of the fourteenth century had developed into a

new )ourt of )hancery administering its own form of <ustice known as e%uity. The )hancellor while not expressly overruling common law decisions would sometimes for instance refuse to allow a legal owner of property to enforce his legal rights. *fter the period of rigidity which had led to the birth of e%uity the common law again began to develop new rules. $n the reign of ?ames $ the principle was established that in the event of a conflict between common law and e%uity e%uity should prevail.
...This was by means of what was called a common in<unction. "uppose that * brought an action against & in one of the common law courts and in the view of the )ourt of )hancery the action was ine%uitable &/s proper course was to apply to the )ourt of )hancer for an order called a common in<unction directed to * and ordering him not to continue his action. $f * defied the in<unction the )ourt of )hancery would put him in prison for contempt of court. E%uity thus worked /behind the scenes/ of the common law action, the common law principles were theoretically left intact but by means of this intricate mechanism they were superseded by e%uitable rules in all cases of /conflict or variance./ The result <ustified the sarcasm of the critic who said that in England one/ court was set up to do in<ustice and another to stop it.F/ Williams Learning the Law 2"tevens 04586 pp. 8>.G.

E%uity was never a comprehensive system of law as was common law but was for the most part a collection of individual rules or principles. H$f common law was the book e%uity was a page of errataI2".&.3arsh and ?."oulsby -,utlines of English Law. p. >6. -evertheless e%uity played an important part in developing certain aspects of law.

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*s the purpose of e%uity was to achieve <ustice and fairness the courts have developed a set of rules to govern the application of e%uity. These are called the /maxims/ of e%uity. They are different from the rules which apply in the common law and these maxims are the reason why we distinguish between common law and e%uity. There are many e%uitable maxims of which the following are <ust brief examplesE a E%uity will not suffer a wrong to be without a remedy. E%uity will only intervene when there is no ade%uate common law remedy. b E%uity follows the law. E%uity recognises legal rights and does not take the place of the common law. c (e who comes to e%uity must come with clean hands. * litigant who has behaved unfairly in the dispute will be denied an e%uitable remedy. d E%uitable remedies are discretionary. +itigants do not have a right to an e%uitable remedy. The courts will decide whether to grant a remedy after considering the individual circumstances of each case. Ane of the most important features of e%uity which distinguishes it from common law is the maxim that e%uitable remedies are discretionary. We will examine this by way of a case study. )ase studyE (iller v. 'ackson /01223 4! 155
The factsE The plaintiffs 0 owned a house ad<oining a cricket ground. )ricket had been The factsE The plaintiffs 0 owned a house ad<oining a cricket ground. )ricket had been played on the ground for a long time before the house had been built. The plaintiffs complained of damage caused by cricket balls and loss of en<oyment of their property. They brought an action against the cricket club for private nuisance seeking damages 2the common law remedy6 and an in<unction 2an e%uitable remedy6 to prevent cricket being played on the ground. The cricket club argued that it had done everything that was possible to stop the balls coming into the plaintiff/s garden including erecting a fifteen foot high fence. (eldE The cricket club were liable 8 to the plaintiffs for private nuisance. *n award of damages 7 was made against them but a ma<ority of the )ourt of *ppeal refused to grant an in<unction preventing the playing of cricket. Ber = +ord !enning 3#E ' /The court when deciding whether to exercise its e%uitable <urisdiction and grant an in<unction must have in mind that it is

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under a duty to consider the public interest. Where the effect of granting an in<unction would be to prevent cricket being played on a ground where it had been played for seventy years or so the special circumstances are such that the public interest must prevail over the hardship of the individual householders who were deprived of the ability to en<oy in peace and %uiet their house and garden while cricket was being played./

)an you see the difference in the court/s approach to the common law remedy and the e%uitable remedyJ $n order to be awarded damages the plaintiffs only had to prove that the defendants were liable in nuisance. (aving proved this the court had no power to withhold the common law remedy 2although the <udges will determine the amount to be paid by the defendants6. $n contrast because e%uitable remedies are discretionary the court could refuse to grant an in<unction because it considered it would not be <ust and fair to do so. &efore concluding this introduction to e%uity you should be aware that although it was originally a flexible body of rules the criticism that /<ustice is as long as the )hancellor/s foot/ > can no longer be <ustified. ?ustice is a G sub<ective concept . what may appear <ust to one person would not be to another. ?udicial decisions and therefore the law based on the individual <udge/s idea of <ustice creates uncertainty and in itself leads to in<ustice. "imilar cases must be treated similarly if <ustice is to be achieved. *ccordingly e%uity has developed over the years into a consistent body of rules which eliminates as far as possible a sub<ective and arbitrary5 application of its principles.

$.* The Cla ifi&ation of LaBublic law consists of those fields of law which are primarily concerned with the "tate itself. Thus constitutional law which regulates the functioning of the organs of the central government and
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the relationship of the individual to them is a branch of public law. )riminal law is also /public/ law because crimes are wrongs which the "tate is concerned to prevent. Brivate law is that part of the law which is primarily concerned with the rights and duties of individuals. Thus the branches of the law which govern private obligations . such as the law of contract and of torts . are all aspects of private law. "o too is the law of property. These are only examples of sub.divisions of public and private law. &oth the main division and the sub.divisions are to some extent arbitrary. Aut of the many ways in which the law can be classified we shall limit our discussion the difference between criminal and civil law and substantive and ad<ective 2procedural6 law.

6.7.0 Civil and criminal law

The ob<ectives of criminal law and civil law although closely connected are different. )riminal law is concerned with conduct of which the state disapproves so strongly that it will punish the wrongdoer. $t is felt that society cannot work if people are allowed to take the property of others at will, therefore theft is forbidden and thieves are punished to deter them and others of a like mind from repeating this conduct. There are other aims of punishment but it is not the ob<ective of criminal law to compensate the victim except perhaps incidentally. )ivil law has a complementary function. $f a dispute arises between two individuals each believing himself to be in the right a %uarrel may ensue and violence or other criminal conduct may result. To prevent this rules of civil law were developed in order to determine which of the two parties was in the right. The party in the wrong was

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then obliged to make redress by compensating the other for any loss he may have caused. The ob<ect of the civil law therefore is to resolve disputes and give a remedy to the persons wronged not to punish wrongdoers. Examples of civil law include the law of contract tort 2literally meaning wrong/6 and property. $t is important to note that the same series of events may sometimes give rise both to criminal and civil proceedings. 9or instance if * is alleged to have driven carelessly and in<ured & two types of issue arise. )areless driving is conduct which has been made a criminal offence and * may be prosecuted by the )rown in a criminal court and if found guilty of the offence punished. The issue of whether * has caused loss to & through negligence and should therefore pay & compensation will be determined in a separate civil action brought by & in a civil court although in this type of situation the loss will normally be met by */s insurance company. There are many other instances such as the failure to guard dangerous factory machinery and the sale of mis.described goods where the same incident may give rise to both criminal and civil actions. +et us examine this more fully by reading the following extract.
These examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done because what is done 2or not done6 may be the same in each case. The true distinction resides 0 therefore not in the nature of the wrongful act but in the legal conse8uences ' that ma& follow it. $f the wrongful act 2or omission6 is capable of being followed by what are called criminal proceedings that means that it is regarded as a crime 2otherwise called an offence6. $f it is capable of being followed by civil proceedings that means that it is regarded as a civil wrong. $f it is capable of being followed by both it is both a crime and a civil wrong. )riminal and civil proceedings are 2in the normal case6 easily distinguishableE the procedure is different the outcome is different and the terminology is different. $n criminal proceedings the terminology is as follows. Dou have a prosecutor prosecuting a defendant and the result of the prosecution is 0' successful is a conviction and the defendant may be punished by one of a variety of punishments ranging from life imprisonment to a fine or else may be released on probation or discharged without punishment or dealt with in

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various other ways. Turning to civil proceedings the terminology generally is that a plaintiff sues 2e.g. brings an action against6 a defendant. The proceedings if successful result in 9udgement for the plaintiff and the <udgement may order the defendant to pay the plaintiff money or to transfer property to him or to do or not to do something 2in<unction6 or to perform a contract 2specific performance6. $t is hardly necessary to point out that the terminology of the one type of proceedings should never be transferred to the other. .)riminal action . for example is a misnomer, so is Fcivil offenceF 2the proper expression is Fcivil wrongF6. Ane does not speak of a plaintiff prosecuting or of the criminal accused being sued. The common announcement FTrespassers will be prosecutedF has been called a Fwooden 8 lie F for trespass has traditionally been a civil wrong not 2generally6 a crime. 2There are some statutory offences of trespass such as trespass on a railway line, and a Fs%uatterH 7 or other trespasser in a house that is occupied or re%uired for occupation generally commits an offence if he fails to leave upon re%uest. *gain the word FguiltyF is used primarily of criminals. The corresponding word in civil cases is FliableF, but this word is also used in criminal contexts. )ivil and criminal courts are partly but not entirely distinct. The Crown Court has almost exclusively criminal <urisdiction. 3agistrates are chiefly concerned with criminal cases but they have important civil <urisdiction over licensing and family matters. An the other hand the county court is only civil and so is the :igh Court apart from appeals. Williams Learning the Law 2"tevens 04586 pp. 7.=.

Text notesE 0 is 8 this refers to the notice board which is often made of wood 7 person occupying building without permission.

Dou should be aware from studying this passage that the parties and the terminology differ. $n our hypothetical situation whilst the one act constituted both a criminal offence and a civil wrong the legal conse%uences under the criminal and civil law will be different 3ost countries including England find it convenient to set up separate systems of criminal courts and civil courts. $n England a criminal prosecution is usually begun in the name of the )rown 2i.e. the state6 through the machinery of the police and the )rown Brosecution "ervice and the decision as to whether or not to press the prosecution is not the concern of the victim. $n a civil case the law is set in motion by a private individual or a firm who has the right to determine how
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far the action shall continue. Thus in the criminal case of #. v. %mith the )rown #R. signifying Regina or the @ueen6 prosecutes the accused who may also be referred to as the prisoner or defendant. $n the civil case of 'ones v. %mith the plaintiff sues the defendant. !ifferences also exist in the rules of evidence and procedure reflecting the fact that a criminal conviction is likely to be far more damaging to a person/s character than failure in a civil action. The rules of evidence are much stricter in criminal cases, for example a confession will be carefully examined to see if any pressure was brought to bear upon the accused but an admission in a civil case will be fully accepted. The standard of proof re%uired in criminal cases is greater for the accused must be proved guilty beyond all reasonable doubt. * plaintiff in a civil action will succeed on the balance of probabilities that is if he can convince the court that he has only a mar. ginally stronger case than the defendant. Dou would be prosecuted by the state in the criminal courts for dangerous driving and sued by the elderly lady in the civil courts for negligence. The two actions will be totally separate. *s <udicial decisions form an important part of the law it is necessary that they should be available to lawyers and the public. The <udgements in the higher courts are published in a series of law reports the most common of which areE
*ll England +aw #eports Weekly +aw #eports @ueen/s &ench *ppeal )ases )hancery )riminal +aw #eports

There is a standard form of reference which tells the reader where the report of an individual case may be found. This reference contains the year in which the case was published the name of the publication in abbreviated form and the page number at which the case can be

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found. $n addition when the case reports for a single year are contained in more than one volume of a publication the number of the volume will appear before the name of the publication. "o for example a case reported at K04G4L 7 *ll E# 7>' will be found in the third volume of the *ll. England +aw #eports for the year 04G4 at page 7>'. Dou will notice the use of s%uare brackets, this signifies that knowing the year is essential to finding the case report. $f the case is cited with the year only and not the reference round brackets are used for example Donaghue v. %tevenson 204786. * final point you should remember at this stage is that case names are always highlighted in some way. $n most books this will be by italics but if you are writing by hand you should underline the case names. $t is important that you get into the habit of doing this from the start of your legal studies.

Legal e2er&i e What is wrong in the following situation and whyJ &ob has been charged with murder and is sued in the county court. The plaintiff is successful in the action and &ob is found liable. (e is punished by being ordered to pay the plaintiff M01 111 in damages. Explain with examples the difference between criminal law and civil law. Why is it necessary to draw this distinctionJ ?ones a shop assistant takes money regularly from the till over a period of several months and spends this on an extravagant way of life. (is employer has now discovered this. What legal conse%uences may now ariseJ

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* further difference between civil and criminal law is the way that cases are cited.
$t is helpful to know certain rules for the naming of cases. Trials on indictment 0 are in the name of the @ueen 2as representing the "tate6, thus a criminal case is generally called Reg. v. whomever it is * Reg. being short for Regina 2pronounced F#egynaF6 and v. being short for versus. When ' there is a king on the throne Re; is used instead of Reg. Re; and Regina both conveniently abbreviate to R. which saves having to remember which is which. Thus Re; v. %ikes or Reg. v. %ikes may both be written R. v. %ikes. "ome textbooks on criminal law even print simply %ikes. This last is a convenient usage for the student of criminal law. 01 $n some types of criminal case the title of the case will not contain Re; or Reg. before the Fv. F but will contain the name of a private person. This happens when the case is tried summarily8 before magistrates7 2i.e. <ustice of the peace6, here the name of the actual prosecutor 2e.g. a policeman6 appears instead of the nominal prosecutor the @ueen. 0' )ivil cases will usually be cited by the names oftheparties thusE R&lands v. <letcher. $f the @ueen 2as representing the :overnment6 is a party she is in civil cases usually called FThe @ueen F and similarly with the Cing thusE !ritish Coal Corporation v.the =ing> but R. may also be used. There are peculiar conventions in pronouncing the names of cases. 206 * 81 criminal case such as R. v. %ikes can be referred to informally as F#.v. "ikesF 2pronounced as written6 or F#exF 2or F#eginaF6 Fv. "ikesF 2again pronounced as written6. $n court however the proper method is to call it FThe CingF 2or FThe @ueenF6 Fagainst "ikes.F 286 $n civil cases the Fv.F coupling the names of the parties is pronounced Fand F both in court and out 8' of it. Thus %mith v. :ughes is always pronounced 2but never written6 F"mith and (ughes // and similarly !ritish Coal Corporation v. The =ing 2which was a civil proceeding against the )rown6 is pronounced with an FandF +awyers thus write one thing and say another. Williams Learning the Law 2"tevens 04586 pp. 0G.05. Text notesE 0 i.e. more serious crime 8 i.e. less serious crimes 7 <udges without legal %ualifications

6.7.6 %u"stantive and procedural law

Williams in Learning the Law defines substantive law in the following wayE ?%u"stantive law la&s down people$s rights duties li"erties and powers.$ &y this is meant the actual content or substance of the law. These are the rules on which the courts base their decisions. Brocedural or ad<ectival law is also a set of rules.
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*s you read the next passage think about these %uestionsE a Why was procedure so important in the pastJ b $s procedure still important todayJ
#ules of procedure or @ad9ective@ law as it is sometimes called are the rules which determine the course of an action, they govern such matters as how the case is to be presented in what court it shall lie or where it is to be tried. Brocedural rules are in other words the rules which govern the machinery as opposed to the sub<ect.matter of litigation. $t is a striking fact much remarked upon by historians that in the earlier stages of legal development these rules assume paramount importanceE form is better understood than substance and in early law formal re%uirements rather than abstract principles usually determined legal rights. &ecause the development of the common law has been continuous this early dominance of procedure has had a lasting influence upon many of the doctrines of the modern substantive law. :enerally speaking however procedure though it is of great importance to the practitioner is today treated as the servant and not the master of substance and the rules of procedure are now more flexible than once they were. They derive from various sources. 3ost proceedings in the "upreme )ourt 2that is most of the more important civil proceedings6 are now governed by a code of rules known as the #ules of the "upreme )ourt2#.".).6 . . . These rules which were originally authori;ed by the ?udicature *cts 05G7.05G' are amended from time to time under powers first conferred by those *cts by a committee known as the F#ule )ommittee. which is headed by the +ord )hancellor. The #.".). are set out in the )nnual Practice 2The FWhite &ookF6. "imilar rules are laid down for the )ounty )ourtsE these appear in the Count& Court Practice. With some exceptions such as the magistrates/ courts rules . the rules of criminal procedure have not been codified, they are to be found in works such as *rchbold/s Criminal Pleading Evidence and Practice and "tone/s 'ustices$ (anual which treats of the work of the magistrates/ courts. ?ames Introduction to English Law 2&utterworths 045'6 p. >8.

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3I3LIOG.A4IE
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*badinsky (oward Law and 'ustice -elson.(all Bublishers 0441 &ogdan 3. Trifu ". DicBionar EngleC*RomAn &ucureOti 04>' )a;an $. )urtui *. &rookes 3. (olden !. EngleCa pentru 9uriDti Ed. Teora &ucureOti 044G (utchinson W. /&arrister/s rights go in strategic reforms/. !yer ). The +uardian 5 !ecember 0454 :arner &ryan * Dictionar& of (odern Legal Esage Axford University Bress 045G :rillot (arold ?. Introduction to Law and the Legal %&stem (oughton 3ifflin )ompany 04G4 (ogan "eago and &ennett * Level Law "weet and 3axwell 0455 (anga P. )alciu #. Dictionar 9uridic Ed. +umina +ex &ucuresti 044= ?ames B. ". $ntroduction to English Law &utterworths 045' 3arsh ". &. "oulsby ?. ,utlines of English Law +ondonE 3c:row.(ill 0441 A)onnell "ue 9ocus on )dvanced English C.).E. +ongman 0444 "im #. ". and "cott 3. 3. ) Level Law >th edn. +ondonE &utterworths 045= "troia Alga English for Law %chool %tudents "ibiu Editura *lma 3ater 8117 "troia Alga Enited =ingdom?s Constitution and +overnment "ibiu *lma 3ater 811= Thomson *. 3artinet *. ) Practical English +rammar Axford University Bress 045> White #. ). *. The )dministration of 'ustice &lackwell 045' Williams :. Learning the Law 00th ed. +ondonE "tevens 0458

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