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English Common Law: Structure and Principles

Week Two: The Hierarchy of the Courts and Common Law and Equity
Additional Notes, Quotes, Case Citations and Web Links for Week Two
Lectures

1. What is the function of the Hierarchy of Courts?


Civil and Criminal courts.
Civil court cases arise where an individual or a business believes their rights have been
infringed.

Civil justice in England and Wales is mainly dealt with in the county courts and, in the
case of more substantial or complex cases, the High Court. The jurisdiction covers a very
wide range - from quite small or simple claims, for example damaged goods or recovery
of debt, to large claims between multi-national companies.
Civil cases involve hearings in open court which the public may attend, hearings in the
judge's private room from which the public are excluded, and matters decided by the
judge in private but on the basis of the papers alone.
Courts in the civil jurisdiction do not have the power to imprison a losing party.
Ordinarily, but not always, they award financial 'damages' to the successful party, the
size of which depends on the circumstances of the claim.

Criminal cases come to court after a decision has been made by, usually the Crown
Prosecution Service, to prosecute someone for an alleged crime. In the vast majority of
cases (over 95 per cent), magistrates hear the evidence and, as a panel, make a decision
on guilt or innocence. For more serious cases a district judge (Magistrates' Court) or a
circuit judge in the Crown Court will hear the evidence, and in the case of the latter, this
will involve a jury trial. Very serious criminal cases, such as murder and rape, may be
heard by a High Court judge.
http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-indetail/jurisdictions/civil-jurisdiction
http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-indetail/jurisdictions/criminal-jurisdiction

2. Trial Courts and Appeal Courts


(i)
Civil Courts
On the civil side, the work of the County Courts involves dealing with civil disputes such
as personal injury cases, claims for damages and injunctions; possession proceedings
against mortgage borrowers and property tenants, and claims for reasonable provision
out of the estates of deceased persons.
The county courts jurisdiction is first instance- but it does have some limited powers to
hear appeals from local authorities in areas of housing law.
The High Court

The High Court is split into three divisions

The Queen's Bench Division of the High Court deal with actions relating to various
different types of tort. These include:

Wrongs against the person e.g. defamation of character and libel


Wrongs against property e.g. trespass
Wrongs which may be against people or property - e.g. negligence or nuisance.

They also deal with matters that involve both contract and tort, such as personal injury
cases which show negligence and breach of a contractual duty of care.
The QBD can hear appeals from the Magistrates court and from the Crown Court
operating in its appellate capacity. This form of appeal is known as appeal by way of
case stated and is somewhat limited.

The QBD also has a supervisory jurisdiction over cases from the Magistrates Court and
the Crown Court acting in its appellate capacity. When the QBD is exercising its
supervisory jurisdiction it is not, strictly, acting as an appeal court. It is performing a
different operation called judicial review.

The principal business of the Chancery Division is corporate and personal insolvency
disputes, business, trade and industry disputes, the enforcement of mortgages,
intellectual property matters, copyright and patents, disputes relating to trust property
and contentious probate actions.
The Chancery Division has a very limited jurisdiction to hear appeals from the county
court.
The Family division deals with matters such as divorce and custody of children.

The Civil Division of the Court of Appeal hears appeals from:

The three divisions of the High Court (Chancery, Queen's Bench and Family Division)
From the County Courts across England and Wales,
From certain Tribunals such as the Employment Appeal Tribunal, the Immigration
Appeal Tribunal, the Lands Tribunal and the Social Security Commissioners.
http://www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal
(ii)

Criminal Courts

Magistrates' courts are a key part of the criminal justice system and 97% of cases are
completed there. In addition magistrates' courts deal with many civil cases e.g. antisocial behaviour, public health and are responsible for the enforcement of fines and
community punishments. Where cases required a penalty greater than magistrates
sentencing powers, cases will be sent to the Crown Court.
http://www.justice.gov.uk/about/hmcts/courts
The Magistrates Court does have jurisdiction over limited categories of civil mattes
which reflects the historical powers that magistrates used to have over certain areas of
civic life. The Magistrates limited appellate jurisdiction over civil matters can be
accounted for in similar terms.
The Crown Court

The Crown Court deals with more serious criminal cases such as murder, rape or
robbery, some of which are on appeal or referred from magistrates' courts. Trials are
heard by a Judge and a 12 person jury. Members of the public are selected for jury
service or may have to go to court as witnesses. Crown Court cases originate from
magistrates' courts.
The Crown Court also hears appeals against decisions of magistrate's courts in
particular relating to matters of sentence or conviction.
http://www.justice.gov.uk/about/hmcts/courts

The Crown court has a limited jurisdiction over civil matters and this includes a limited power
to hear appeals from the magistrates on civil matters.

The Court of Appeal

The Criminal Division hears appeals from the Crown Court.


(iii)

The Supreme Court:

is the final court of appeal for all United Kingdom civil cases, and criminal cases
from England, Wales and Northern Ireland
hears appeals on arguable points of law of general public importance

concentrates on cases of the greatest public and constitutional importance

The Supreme Court hears appeals from the following courts in each jurisdiction:
England and Wales

The Court of Appeal, Civil Division

The Court of Appeal, Criminal Division

(in limited criminal cases) the High Court.

leapfrog appeals from the High Court that by pass the Court of Appeal

The Judicial Committee of the Privy Council hears civil and criminal appeals from
Commonwealth countries and also has an appellate jurisdiction over a range of
professional disciplinary proceedings, Church matters and matters relating to
devolution.

http://www.supremecourt.gov.uk/about/role-of-the-supreme-court.html
(iv)

The European Court of Justice

The ECJ is the highest court in the EU, outranking national supreme courts.

The Court of Justice interprets EU law to make sure it is applied in the same way in all
EU countries. It also settles legal disputes between EU governments and EU institutions.
Individuals, companies or organisations can also bring cases before the Court if they feel
their rights have been infringed by an EU institution.
http://www.civitas.org.uk/eufacts/FSINST/IN5.htm
Preliminary Ruling Procedure
The national courts in each EU country are responsible for ensuring that EU law is
properly applied in that country. But there is a risk that courts in different countries
might interpret EU law in different ways.
To prevent this happening, there is a preliminary ruling procedure. If a national court
is in doubt about the interpretation or validity of an EU law, it may and sometimes
must ask the Court of Justice for advice. This advice is called a preliminary ruling.
Actions for failure to act
The Treaty requires Parliament, the Council and the Commission to make certain
decisions under certain circumstances. If they fail to do so, member countries, other
Community institutions and (under certain conditions) individuals or companies can
lodge a complaint with the Court so as to have this failure to act officially recorded.

Proceedings for failure to fulfil an obligation


The Commission can start these proceedings if it believes that a member country is
failing to fulfil its obligations under EU law. These proceedings may also be started by
another EU country.

Direct actions
Any person or company who has suffered damage as a result of the action or inaction of
the Community or its staff can bring an action seeking compensation before the General
Court.
http://europa.eu/about-eu/institutions-bodies/court-justice/#case1
(v)

The European Court of Human Rights

The European Court of Human Rights is an international court set up in 1959. It rules on
individual or State applications alleging violations of the civil and political rights set out
in the European Convention on Human Rights. Since 1998 it has sat as a full-time court
and individuals can apply to it directly.
http://www.echr.coe.int/Documents/Court_in_brief_ENG.pdf

3. The Hierarchy of the Courts and the Doctrine of Precedent


Magistrates Courts and County Courts

These courts are bound by decisions of the High Court, the Court of Appeal and the
Supreme Court. Magistrates and County Courts are not bound by their own decisions,
neither do they bind any other court, although they are expected to exercise consistent
decision-making.
The Crown Court

This court is bound by decisions of the Court of Appeal and the House of
Lords/Supreme Court. Its decisions at least those reported as of interest are
generally regarded as persuasive and worthy of being used in argument, particularly
those made by High Court judges sitting in the Crown Court.
The High Court

The decisions of this court are binding upon all inferior courts, but not upon other High
Court judges, although in practice they rarely go against each others decisions. High
Court decisions are not binding upon the Divisional Court (civil or criminal), where two
or more High Court judges sit together. All Court of Appeal and House of
Lords/Supreme Court decisions are binding upon the High Court.
The Divisional Courts of the High Court

The decisions of the Divisional Courts of the High Court are binding upon High Court
judges sitting alone and also the inferior courts, except the Employment Appeal
Tribunal. The Divisional Courts are bound by the Court of Appeal and the Supreme
Court and also by its own decisions.
The Court of Appeal (Civil Division)

Generally, its decisions are binding upon the Divisional Courts of the High Court,
individual High Court judges and the inferior courts, including the Employment Appeal
Tribunal. It must follow decisions of the House of Lords/Supreme Court

The Court of Appeal (Criminal Division)

This appellate court is bound by House of Lords/Supreme Court decisions and is


generally bound by its own decisions, but not so rigidly as in the Civil Division, since the
liberty of the appellant is often at stake.
The House of Lords

Between 1966 and 2009 (when it was replaced by the Supreme Court), the House of
Lords no longer needed to be bound by its own decisions, although it was stated in the
Practice Statement Judicial Procedure (1966) that this rule was to be used cautiously,
especially in property and taxation matters and also the criminal law. Great weight is
attached to statements made in the House of Lords even when they are said obiter. Any
House of Lords decision can be overridden by an Act of Parliament.
Precedents in other courts may be persuasive depending upon the status of the court,
the reputation of the judge and the country in which it was established.
4. Tensions Between The House of Lords and the Court of Appeal:
a) Can the Court of Appeal Depart from decisions of the House of Lords?
In Re United Railways of Havana [1961] A.C 1007.
Schorsch Meier G.m.b.H. v. Hennin[1975] Q.B. 416

cessante ratione legis cessat ipsa lex or [s]eeing that the reasons no longer exist, we are
at liberty to discard the rule itself. Denning MR:
Miliangos v George Frank [1976] AC 443

Application of the principle cessante ratione legis cessat ipsa lex has no place in our
own modern constitution.

b) Can the Court of Appeal Depart from its previous decisions?

Young v Bristol Aeroplane Co., [1944] K.B. 718

The Court of Appeal (CA) is bound by its own decisions unless:

it is a Court of Appeal decision given per incuriam


(i.e. with the omission of a very important
component which subsequently flaws the
decision)
it involves an earlier conflicting decision by the
Court of Appeal, when the CA may then choose
which case to follow

the earlier Court of Appeal decision has been


expressly or impliedly overruled by the Supreme
Court.

Davis v Johnson [1974] A.C.264.


In order to avoid all the delay -- and the injustice consequent upon it -- it seems to me
that this court, being convinced that the two previous decisions were wrong, should

have the power to correct them and give these women the protection which Parliament
intended they should have. Lord Denning
Hutton v Bright (1852) 3 HL Case 341

[E]very court of justice possesses an inherent power to correct an error in which it


had fallen.

[A] rule as to precedent (which any court lays down for itself) is not a rule of law at all.

It is simply a practice or usage laid down by the court itself for its own guidance: and, as
such, the successors of that court can alter that practice or amend it or set up other
guide lines, just as the House of Lords did in 1966. Lord Denning
Davis v Johnson House of Lords

Lord Diplock preferred that the House of Lords should re-affirm expressly,
unequivocally and unanimously the rule in Bristol Aeroplane Co. 1

5. Common Law and Equity


Common law as distinct from statute
Common law as distinct from Equity

Common law as distinct from civil law


Common law and Civil law

It is one of the great merits and advantages of the common law, that instead of a series
of detailed practical rules, established by positive provisions, and adapted to the precise
circumstances of particular cases, which would become obsolete and fail, when the
practice and course of business, to which they apply, should cease or change, the
common law consists of a few broad and comprehensive principles, founded on reason,
natural justice, and enlightened public policy.
Chief Justice Shaw Norway Plains Co v Boston & Maine Railroad (1845, 1 Gray, at 263),
Common law and Equity
Key concept: Conscience.

If land was given to A and As undertaking to hold the land to the use and benefit of B, it
was unconscionable for A to keep it for his own benefit. B, however, had no legal claim
to the land. The conveyance to A gave him whatever legal estate was conveyed, and, at
common law, A could exercise all the rights which that estate gave himB would have
little protection at common law ( in C14th possible action because of breach of covenant
under seal)The Chancellor interfered to compel A to hold the land for the exclusive
use and benefit of B. The Chancellor could not say that B was the owner; A was. But all
the beneficial interest in the land could be given to B by compelling A to keep the legal
title only, and to give all the benefit of the land to B (Graham Moffat, Trusts Law, 9)

The Supreme Court of Judicature Act 1873 (36 & 37 Vict c. 66) and the Supreme Court of
Judicature Act 1875 (38 & 39 Vict c. 77), (and subsequent Acts)

The contemporary relationship of equity and the common law


.....the streams of common law and equity have flown together and combined so as to
be indistinguishable the one from the other. We have no longer to ask ourselves: what
would the courts of common law or the courts of equity have done before the Judicature
Act? We have to ask ourselves: what should we do now so as to ensure fair dealing
between the parties?
Lord Denning, Federal Commerce & Navigation Co Ltd v Molena Alpha Inc [1978] 3 All
E.R. 1066

My first concern with proceeding by analogy with tort is that it overlooks the unique
foundation and goals of equity. The basis of the fiduciary obligation and the rationale for
equitable compensation are distinct from the tort of negligence and contract. In
negligence and contract the parties are taken to be independent and equal actors,
concerned primarily with their own self-interest. Consequently the law seeks a balance
between enforcing obligations by awarding compensation and preserving optimum
freedom for those involved in the relationship in question, communal or otherwise. The
essence of a fiduciary relationship, by contrast, is that one party pledges herself to act in
the best interest of the other. The fiduciary relationship has trust, not self-interest, at its
core, and when breach occurs, the balance favours the person wronged. The freedom of
fiduciary is diminished by the nature of the obligation he or she has undertaken -- an
obligation which "betokens loyalty, good faith and avoidance of a conflict of duty and
self-interest": Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592 at 606. In short,
equity is concerned, not only to compensate the plaintiff, but to enforce the trust which
is at its heart. McLachlin, J. (dissenting)
Canson Enterprises Ltd. v. Boughton & Co, (1991) 85 D.L.R. (4th) 129.
In Australia, equitable standards are seen as converging with those of common law
concepts of fairness and flexible standards of reasonableness. In Hawkins v Clayton
(1988) 164 CLR 539, Deane J criticised arbitrary division in the law of obligations, and
asserted that the law should form a coherent wholeand, as Getzler adds, this
rationalisation has been achieved by the High Court using equitable principles- not as
discretionary justice- preferring a principled, rule bound equity. La Forest, J

Equity and common law are converging and will continue to converge so that the
differences in origin of particular principles should become of decreasing importance.
The underlying values of equity centred on good conscience will almost certainly
continue to be a driving force in the shaping of the law unless the underlying values
and expectations of society undergo a fairly radical alteration. If the present trend
continues, the element of uncertainty which is associated with the greater emphasis on
good conscience will be dissipated by an increase in the number of decisions on a wide
range of fact situations. Because the concepts employed are not susceptible of sharp
definition, there is the risk of some erosion in the apparent distinctions which have
been maintained hitherto between equitable concepts such as "unconscionable" and
"inequitable" and common law concepts such as "unfair" and "unreasonable." But it is
important that we continue to adhere to the traditional concept of unconscionability as
denoting conduct which involves one person unconscientiously taking advantage of
another's special vulnerability or disadvantage in a way that is both unreasonable and
oppressive. The recent decade might be regarded as a period of legal transition in
which we have been moving from an era of strict law to one which gives greater

emphasis to equity and natural law. As Roscoe Pound said in The Spirit of the Common
Law, the endeavour to make morals and law coincide will be an important future goal.
Anthony Mason, Law Quarterly Review 1994: The Place of Equity and Equitable Remedies in the
Contemporary Common Law world.

What does it mean to suggest that Equity is a supplement to the common law or
mitigates the rigours of the common law?
Lloyds Bank v Rosset [1991] 1 AC 107.

HELD In resolving a dispute between two persons who had shared a home in
circumstances where one party was entitled to the legal estate and the other party
claimed to be entitled to a beneficial interest... the fundamental question which had to
be resolved was whether, on the basis of evidence of express discussions between the
partners and independently of any inference to be drawn from their conduct in the
course of sharing the property and managing their joint affairs, there had been at any
time prior to the acquisition of the property, or exceptionally at some later date, any
agreement, arrangement or understanding reached between them that the property
was to be shared beneficially coupled with detrimental action or alteration of position
on the part of the person claiming the beneficial interest or, failing that, whether there
had been direct contributions to the purchase price by the person claiming the
beneficial interest from which a constructive trust could be inferred.

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