Structure of The Legal System

1 Civil Law

• Private law

• To settle disputes between individuals

• No concept of punishment

• Objective is to compensate the wronged party

• Need to prove ‘on the balance of probability’

• Sued in court

• If liable, then compensation payable

• Claimant and defendant

• Personal action brought by the aggrieved party

• Court may award damages or an equitable remedy if damages are inappropriate

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2 Criminal Law

• Public law

• A wrongdoer has broken the law

• A wrong done to society

• Prosecuted in court

• If guilty, then punished

• Community service, fine, imprisonment

• Prosecutor and accused

• Need to prove ‘beyond reasonable doubt’

• Police charge many less-serious cases

• The CPS makes charging decisions in more serious cases, applying the evidential and public-interest tests

3 Common Law

• Development started with effect from 1066

• King’s representatives attended local courts

• Then met in London on a regular basis to discuss

• Over a period of 200 years, law was commonised – “Common Law”

• Cornerstone of Common Law is judicial precedent

• Ratio decidendi and obiter dicta

• With commonisation came recognition of deficiencies

• Highlighted the need for alternative remedies – Equity

• Common Law remedy is ‘damages’ – a monetary award

• Common Law courts were separate from court of equity until the late nineteenth century

4 Equity Law

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• Grew from the recognition of deficiencies of Common Law

• If a monetary award of damages was not appropriate, there was nothing else to offer

• In fourteenth century, Aequitas

• Chancellor’s court

• Early seventeenth century, Earl of Oxford’s case

• Equity shall prevail

• Confirmed by 1873 – 1875 Judicature Acts

• Main remedies :

  • Specific performance

  • Injunction

  • Rescission

  • Rectification

• Remedies are given at Court’s discretion

• Specific performance is normally refused where damages are an adequate remedy

5 Ratio Decidendi

• Ratio is ‘the reason for the decision’

• Ratio is binding on future judges in similar cases

• Reversing – higher court reverses lower court decision in same case

• Overruling – higher court overrules lower court decision in different case

• Distinguishing – court avoids earlier precedent by distinguishing the facts

• Obiter dicta are persuasive rather than binding

• The narrow per incuriam exception applies where a binding authority or statute was overlooked

• A higher court may overrule a precedent from a lower court

• Post-transition CJEU decisions are not binding, though courts may have regard to them; pre-exit case law is treated under the assimilated-law framework

• A court may distinguish a precedent where the material facts differ

• Decisions of lower courts do not bind higher courts