Sources of Law Summary

Sources of Law

Summary

A. Common Law

Ø  Before the Norman Conquest (1066), most rules and practices developed at a local level.

Ø  After the invasion of England by William the Conqueror in 1066 (Battl e of Hastings), the Norman kings set up a more centralised power:

o   Travelling justices:

·      Applied customary rules

·      Introduced their own decisions

ê This harmonised the legal system throughout the country

Ø  Under Henry II (Plantagenet 1154-1189) in the 12^th century, the system became known as the common law.

·      Courts were set up under the authority of the king.

·      These court decisions prevailed over those of local courts.

Ø  Common law and the writ system

·      Plaintiffs / Claimants began legal actions in royal courts by paying for a court order called a writ.

·      Each writ recorded a particular claim.

·      Courts established a collection of acceptable claims.

o   By the 13^th century, the system had become more rigid:

·      Rules were imposed making it difficult to create any new writs.

·      New situations would not be taken into account.

·      The only possible remedy at common law was damages.

NB: Damage ≠ Damages ≠ Prejudice

Ø  Development of Equity

o   Many parties started to turn to the King directly to obtain redress.

o   The King delegated his power to his closest advisor, the Lord Chancellor.

o   é In the 14^th and 15^th century, a new category of law was created:

Equity which provided new remedies:

-       Injunctions

-       Orders of specific performance

o   In 1615: if was decided that whenever there was a conflict between common law and equity, equity would prevail.

Ø  Judge-made law

o   Decisions at common law and in equity = judge-made law / case law.

o   Based on concrete cases, these decisions set precedents, which would be applied in later cases (raising the same legal point in similar circumstances).

o   End of 18^th century, court records became available: precedents were applied more consistently.

B. Legislation

Ø  Origins of Parliament: barons of England that forced monarchs to hold regularly in meetings called parliaments (+ prelates and knights and burgesses) to obtain their approval of royal measures (especially taxation).

Ø  Alongside common law, Parliament enacted more and more legislation:

o   Acts of Parliament = Statutes = Statutory Law

o   Statutes prevail over common law.

o   Statutes alter, codify the law.

o   Court rulings (precedents) became interpretations of legislative acts.

Ø  By the middle of the 15^th century, the House of Commons fully shared lawmaking power with the House of Lords (i.e. approval by the Commons was now needed for bills to become statutes).

Ø  In the 16^th and 17^th century though, The Tudors and The Stuarts ruled as absolute monarchs.

o   The English Civil War (1642-51) and the death of Charles I (beheaded) is the direct result of the conflict between the King and Parliament.

o   The Glorious revolution (1688) and the Bill of Rights (1689) marked the end of absolute monarchy in England and the assertion of Parliamentary Sovereignty.

Ø  Parliamentary Sovereignty:

o   As there is no entrenched Constitution to circumscribe the powers of Parliament, Parliament is said to be sovereign:

o   Parliament passes acts that constitute the highest law of the land.

o   New acts prevail over existing case law and replace former acts.

Primary Legislation passed by Parliament.

Power can be delegated by Parliament to the Government, enabling it to create secondary legislation.

Devolved legislation (Wales, Scotland, Northern Ireland)

C. European Law

Ø  The UK joined the European Economic Community in 1973, which became the European Union (Maastricht Treaty 1992).

Ø  The UK is bound by EU law in the form of:

-       Directives (that require UK parliament to pass legislation of its own)

-       Regulations

Ø  The UK obtained opt-outs:

-       To stay outside the Schengen Area,

-       Avoid adopting the euro,

-       Maintain sovereignty in certain areas of justice.

Ø  The European Court of Justice (ECJ) reviews, interprets and ensures the application of EU law, which prevails over UK law and results in a partial loss of sovereignty.

D. The European Convention on Human Rights

Ø  The Council of Europe (1949) signed the European Convention on Human Rights (ECHR), which went into effect in 1953.

Ø  The European Court of Human rights

o   It was set up in 1959

o   It hears cases against those states (usually brought by individuals) for violation of ECHR provisions.

o   Its decisions (awarding compensation to the claimant) must be executed by the states.

Ex: Louise O’Keeffe / Ireland  (child abuse) 2014.

Ø  To make the ECHR applicable directly in courts of the UK, the UK parliament passed the Human Rights Act in 1998 (which came into effect in 2000)

Ø  After his re-election in May 2015, the current Prime Minister, David Cameron, has announced that he would repeal the Human Rights Act and draft a British Bill of Rights.

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In-Class Test Correction (L2, L3, M1) : General linguistic remarks

Vocabulary:

Independence

Base (concrete) ¹ basis (abstract) ê the plural form in both cases is: bases

The legal basis / the base of the bed

To rise (intransitif): For example E. Hemingway’s novel “The Sun Also Rises”

To raise (transifif): to raise a defence

To claim ¹ to pretend

Previous (adj.) ¹ A Precedent (n.)

Dans la mesure où: insofar as…

Allege / alleged / allegedly

Statue ¹ Status ¹ Statute

Les dispositions de la loi: the provisions of the statute

To lay down: the act lays down that / to lay down a rule

To set out: (presenter / exposer): the information is set out in the table below

THE UK and THE EU BUT UK Law / EU Law

Jurisdiction:

To have jurisdiction over certain matters = to be competent to hear certain claims

A jurisdiction is a territory where a legal system applies

To bind lower courts: the Court of appeal’s precedent binds lower courts / is binding on lower courts.

To bind (bound, bound) ê to be bound.

(The contract binds the parties / The contract is binding on the parties)

Address: to address an issue

High-profile cases

To complain (v.) / A complaint (n.)

To exhaust all possibilities of appeal

The court of last resort

To obtain redress

Prévoir: to foresee (anticipate)

Etre chargé de: To be in charge of + V-ing

To be on an equal footing with / to be on a par with (être au meme niveau que…)

Prior to = before

Current  ¹ actual

In the case at hand / in the instant case

Cases lie from the Crown Court to the Court of Appeal

To take a case to court / to make a claim / to assert a claim in tort

To bring a case before the Court of appeal (NOT in front of)

Scope: this falls within the scope of the law

Surrogacy:

Expense ¹ expenses

To cover / pay for the expenses incurred during the pregnancy

To meet someone’s needs / to provide for someone’s needs

To give full effect to surrogacy

A complex situation can arise / to give rise to complex situation. (The Human Fertilization and Embryology Act 2008 gave rise to problematic situations)

Legislation: further legislation is required

The Child’s welfare
To give up the child for adoption

Surrogate / surrogacy

Faire appel à: to have recourse to surrogacy (also: “to resort to a surrogate mother” but “resort” has a negative connotation)

To make a profit ¹ to benefit from ¹ to take advantage of

Un tiers: a third party

Nouveau-né: a newborn (n.) / a newborn child (adj.)

Etre en âge de: to be of age ¹ to be under age

Family Law:

“Reservé à”: Civil partnership is only available to / only open to / (only limited to)

To conclude a pre-nuptial agreement / to enter into a pre-nuptial agreement.

Two years’ separation

Discrimination:

Discrimination is uncountable

Information is uncountable

To benefit of the same rights as / to enjoy the same rights as…

To put someone with a protected characteristic at a disadvantage

To get fired / sacked  / to be given the sack (inf.) = to be dismissed (to be given one’s cards) / to be made redundant (eco.)

Contract law:

A bilateral contract, a unilateral contract

Grammar:

Prepositions:

To set limits on something

To impose something on someone

In comparison with

As opposed to

Divided into 3 divisions: / Divide ¹ devise

The High Court is composed of 3 divisions…

Syntax:

To give something to someone / to give someone something

Whereas / Unlike:

Ø  Whereas + Groupe verbal

Ø  Unlike + Groupe nominal

Before + v-ing / After + v-ing / Instead of + v-ing

Contribute to + V-ing

To make someone do something = To have someone do something

= To get someone to do something.

The only one of these structures to have a passive form is “to make someone do something”. It becomes: to be made to so something

Sequence of tenses:

If + Present ê Future

If + Preterit ê Present Conditional (If I had …. I would)

If + Past Perfect ê Past Conditional

M1 In-class test correction (GROUP 2 and GROUP 52)

M1 In-class Test Correction : Group 2

I.                    Complete the following sentences:

1.       In order to establish someone’s liability in Tort, the claimant has to prove on the balance of probabilities that the defendant owed him a duty of care, the breach of which is the direct cause of the harm sustained.

2.       While in a business context intention to form a contract is presumed, in a domestic contexte the intention of the parties to be bound by contract is reversed, although it is rabuttable which menas that the parties may provide evidence that they intenses their agreement to be binding.

3.       Unlike a bilateral contract, a unilateral contract is an agreement whereby the promisor undertakes to do something if a certain act is performed, but there is no obligation for the promise to undertake performance.

4.       Although consideration must be sufficient, it does not have to be adequate that is to say that it does it have to be of equal monetary value to the original promise.

5.       Goods displayed in a shop window or at auctions cannot be considered as an offer but only as an invitation to treat.

 

II.                  Text:

1.       The parties to the litigation are, on the one hand, a former Miss India UK (i.e. the claimant), and on the other hand three defendants, namely the producer, the broadcaster and another housemate of the Big Brother TV show.

The claimant brought an action for defamation against the three defendants on account of the broadcasts of two Big Brother episodes, and also issued a claim for breach of contract against the producer of Big Brother. That is called pleading in the alternative.

Given that county courts have no jurisdiction over defamation cases, the case at hand was thus necessarily heard by the Queen’s Bench Division of the High Court.  

 

The claimant, however, did not obtain redress.

 

Concerning the first broadcast, the court ruled that contrary to claimant’s assertion, the housemate’s comments did not have a bearing on the claimant’s social or intellectual status. These comments had also been condemned by the broadcaster and producer. As for the second broadcast, the court deemed that the racist nature of S’s remark actually undermined S’s own status and credibility in the eyes of viewers more than it affected the claimant’s reputation.

2.       Defences:

Pursuant to the Document handed out in class concerning the Defamation Act 2013, the defences available to a defendant are:

 

-          Truth (section 2) and Honest Opinion (section 3)

-          Publications on a matter of public interest (section 4). This defence replaces the common law defence known as The Reynolds Privilege.

-          Qualified Privilege (section 6)

-          (Section 5 provides a new defence for website operators who comply with the Defamation (Operators of Websites) Regulations 2013.

 

Note that since the reform, defamation is not actionable per se. The claimant must prove his reputation has suffered serious harm.

Similarly, defamation cases are generally not tried by jury any longer.

 

Please read below the Updated Factsheet of the Glossaire on Defamation:

Defamation can be defined as the publication of a statement, which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. To establish defamation, three elements must be proved: the statement made is defamatory, it refers to the claimant and it is communicated to at least one person other than the claimant.

 

Defamation takes the form of two separate torts: slander and libel. Slander occurs when the defamatory act is in temporary form and libel when it is in permanent form. Slander requires special damage being proved. Whereas previously libel was actionable per se, the claimant must now show serious harm. Libel can be prosecuted as an offence. A defamation case was formerly tried by a judge and a jury in the High Court. Now defamation trials are without a jury unless the court orders otherwise. The jury will assess the quantum of damages, which can be nominal, aggravated or contemptuous.

There are four specialised defences: true and honest opinion (replaces common law defences of justification and fair comment respectively), absolute or qualified privilege, responsible publication on matters of public interest (new defence introduced in the Defamation Act 2013, which replaces the Reynold’s defence) and offer of amends under statutory provisions. If the claimant manages to prove malice, the defendant’s defence fails. In the 2010s, the tort of defamation has been more particularly relevant concerning the freedom of speech in relation to the press. There have been calls for a blanket protection for the press relative to political discussion and information. The courts try to strike a balance between the duty and interest of members of the public to know a fact and the defendant’s right to privacy.

• serious harm: level of the injury sufficient to justify legal action in court under the tort of defamation; fr: ≈ dommage/préjudice particulier
• special damage: to establish his claim in slander, the claimant needs to show that he was actually harmed by the defamatory statements; fr: ≈ dommage/préjudice avéré
• true and honest opinion: statutory defence which determines whether the opinion could be held by an honest person, based on the known facts at the time of writing; fr: ≈ exception de commentaire honnête
• the claimant’s claim stands: fr: la demande en justice du demandeur est recevable

• to be privileged: fr: jouir de l’immunité
• to be sued for defamation: fr: être poursuivi en diffamation

• to dismiss someone's claim: fr: débouter quelqu'un de sa demande

• to make an offer of amends: fr: faire amende honorable
• to tarnish/harm someone’s reputation: fr: porter atteinte à la reputation de quelqu’un

3.       Students’ own answers.

M1 In-class test correction: Group 52

I: Sentence Completion:

1.     Unless there is consideration … a contract will be not be considered as legally enforceable or binding on the parties. 

2.     While in a business context intention to form a contract… is presumed, in a family (/domestic) context the presumption is reversed so that the parties must prove they intend to be bound.

3.     Unlike a bilateral contract, … a unilateral contract is an agreement where only one party promises to do something, in the event that a certain act or promise is performed.

4.     Although a promise of a gift is not a contract in English law, a deed, that is to say a written promise that derives its validity from being intended, witnessed and signed, is a form of binding agreement.

5.     A qualified acceptance… cannot be considered as acceptance but as a counter offer, which causes the original offer to be revoked.

II: Document:

1.     The parties to the litigation are Richard Fowles (claimant) and referee David Evans and the Welsh Rugby Union (defendants). 

The claimant is a rugby front row player who sustained severe injury as a result of the referee’s negligence. Indeed, the referee should have made sure that the scrums were not contested but passive. The referee failed to do so, and as a consequence the scrum collapsed a number of times, eventually causing Fowles’s serious injury.

The claim is therefore a claim in tort as Fowles brought an action for negligence. Fowles alleges that as referee, Evans owed players a duty of care, that he had breached his duty of care and that this breach is the direct cause of the injury he sustained. In other words, Fowles would not have sustained his injuries but for Evans’s negligence.

2.     At first instance, given its complexity and the amount of money at stake, the case was heard by the Queen’s Bench Division of the High Court, as it has jurisdiction over tort cases. (Develop on the High Court: see Glossaire)

The WRU is involved in the case because of the principle of “vicarious liability”, according to which employers are responsible for harm caused by their employees during the course of their work.

3.     The underlined sentence refers both to the classic defence of consent available to defendants in tort cases, as well as its exception (i. e.) “Sciens is non volent”. The defence of consent applies for example to cases related to sport where the defendant contends that the claimant agreed to the risks inherent to the sport practiced (e.g. rugby). “Sciens is non volent” on the other hand means that being aware of the risks may not mean consenting to the risks.

In the case at hand, Fowles may have agreed to the risks entailed by the game when played by the rules. He did not agree on the other hand to the risks that arose from a foul or from the fact that the referee failed to apply the rules. (The scrum in that game should not have been contested, which means that the players should not have been allowed to both front rows to engage and thrust forward.)