ALL RIGHTS RESERVED BY PATHLEGAL. DO NOT COPY the contents of this webpage to another website or distribute it electronically.
Before going into the structure of the government or the functioning of its legal system, it would be helpful to know the terms used in English law. A note on the terminology is as follows:
Court of Common law and the court of Equity
The unitary legal system prevalent in the UK actually started to take shape only after 1066, following the Norman Conquest. “Common law court” began as an aide to the King’s Council and subsequently, branched out into Courts of Exchequer, Common pleas and the King’s Bench. The sovereign king was still very much the highest in the hierarchy of this system.
However, with time, Common law courts became formalistic, and inaccessible to the layman. There were plaintiffs who could never access the Common court, so the “Lord Chancellor’s Court” was established. It was described as the King’s conscience. Out of this, grew the Court of Equity. Courts of Equity gave decisions based on established principles from past decisions.
Finally the Judicature Acts of 1873-75, merged the two courts.
Common law vis-ŕ-vis Civil Law
“Common law” is also described as the “substantive law”. This unlike our understanding of the term ‘substantive law’ in India also comprises of procedural rules. Therefore, it consists of the essence of the entire body of court-created law of the past. It is the old English legal system, in which judges and their decisions play a dominant role.
“Civil law” means the central European system of law that the UK, and a number of other jurisdictions have embraced. It refers to a body of abstract principles that are supposed to guide the judges while they use their discretion.
Common Law and Statute Law
As described above, common law is the substantive law decided by the judges.
“Statute law”, on the other hand, is the law that the Parliament creates through legislation. With the passing of time, the number of statute laws is on the rise. The trend is to make the courts a last resort, and instead address all possible aspects in the legislation itself. However, ironically this has only led to the requirement of more and more interpretations by courts.
Private and public law
When the state or its affiliated agencies take up a case against a private individual the law that governs such cases is called “public law”. For example, criminal law falls under public law.
Where the conflict is between two individuals and the state has no interest, other than providing a forum, the law that guides the courts is described as “private law”. An example would be the law of contracts.
Civil and criminal law
Individuals possess rights and, therefore, remedies against fellow individuals in a state. Where the matter is concerning the enforcement and adjudication of such rights and settling private disputes, the law that is followed by the courts is called the “civil law”. The goal of civil law is not to punish, but to merely resolve.
When individuals behave in a way that elicits the disapproval of the state, the state seeks to eliminate such behavior by initiating action against erring individuals. “Criminal law” concerns the enforcement of certain types of behavior.
In civil law, the claimant sues the defendant and in criminal law, the prosecutor prosecutes the defendant. The same situation may give rise to booth a civil action and a criminal action. Let us say, Chunky Charlie beaks the speedy limit and injures Tubby Tommy. While Chunky Charlie will face the music from the state for breaking the speed limit under criminal law, he may also be dragged to the civil court by Tubby Tommy for compensation.
Sources of law
One way of studying a legal system is to study the sources of law in that system. After all, what are lawyers concerned with? Laws, more laws, still more laws and many more laws. By the term “sources”, we mean the medium through which we find the law, and not the “origin” of law. This section will walk you through the sources of law in the UK
European Community Law
After the U.K joined the European Economic Community, its legislative executive and judicial powers operate within the framework of European Community Law. European Institutions now create laws that have force in England.
Aside from the institutions of the European Community, which are sovereign in their own right, the UK Parliament has the sovereign power to make laws, revoke or amend them. It is often criticized that this means the laws are created by the party controlling the majority in the House of Commons, the lower house of the British Parliament. The structure of the UK’s parliament is like this:
Before a law is passed, it should be presented to both the houses for approval and it should also receive the Royal Stamp before it becomes an “Act of the Parliament”. There are many types of legislation: enabling legislation, consolidating legislation, codifying legislation, amending legislation, delegated legislation etc. These terms emerge more out of convention rather than any formal nomenclature. So, while the enabling legislation enables, the codifying legislation codifies; Does “delegated legislation” delegate? No, no; it’s not called “delegating legislation”, you see. “Delegated legislation” is the name given to legislations, when Parliament has passed on the task of law-making to some person or body, as it finds that such person or body might have better expertise to make such laws.
The Court System
So how does the world’s oldest formal court system now function? This diagram will tell you about its structure,
Since you will, primarily, be working with civil cases alone, this module will only deal with the civil court system in detail. As the rule goes, a civil suit is a complaint presented by a plaintiff against a defendant. The complaints are predominately, related to contract law, tort law, defamation and the law of property and land disputes. The court in which the suit is to be filed, in most case, depends on the value of the claim involved. When a court acquires jurisdiction on a case on the basis of the monetary value of the claim, such a jurisdiction is called “pecuniary jurisdiction”, the word “pecuniary” simply means “monetary”.
Under ordinary circumstances, the jurisdictions of various civil courts are as follows:
Now, let us go into courts at each level in greater detail:
A County Court handles most of the uncomplicated civil law suits from England, Wales and Northern Ireland. In Scotland there is an equivalent of the County Court, which is called the “Sheriff Court”. As specified in the table above, claims of a lesser value are heard in a County Court of Sheriff Court. There is a different procedure to hear small claims (under L5,000) called the Small Claims procedure. Some of the matters typically heard in County Courts are: debt, personal injury, breach of contract, family issues such as divorce, adoption, children’s cases including abuse and domestic violence etc.
Cases that the County Courts do not have original jurisdiction over are heard in the High Court. The High Courts or equivalent courts in the UK are:
a. The Royal Courts of Justice in London
b. High Court Centers in England, Wales and Northern Ireland.
c. Court of Session in Scotland. Appeals against decisions made by Sheriff Courts go to the Court of Session in Edinburgh. An appeal from the Court of Session goes directly to the House of Lords.
For the purposes of convenience, a High Court is divided into three broad divisions, based on the nature of the suit, That is, the subject-matter of the dispute:
Family Division: Deals with suits related to matters such as divorce, child welfare and custody matters and the administration of wills. Divorce, though mostly dealt with through County Courts, the High Court hears a number of contested cases.
Chancery Division: Chancery courts are courts that deal with equity issues. Complicated matters such as disputes about wills, settlements, bankruptcy, land law, intellectual property and corporate laws are heard by this division. Cases related to Company law are dealt with by a special sub-division called the Companies’ Court.
Queen’s Bench Division: All the matters that the two divisions above do not deal with are dealt with by this division, which typically includes disputes over contracts, torts or land disputes. The Queens Bench has further sub-divisions specialized in matters such as commercial, actions against public authorities and admiralty namely, the commercial court, the crown office list and the admiralty court. The commercial court handles disputes related to business, insurance, finance, sale of commodities etc. The admiralty court deals with shipping related disputes.
You may have often come across a citation of a ‘King’s Bench’ decision in our work. This is the same as the ‘Queen’s Bench’ the name of the division is changed depending upon whether the ruling monarch at the time is a King or a Queen:
Court of Appeal – Civil Division
An appeal only on issues of law against a decision from a county court or a high court comes to the Court of Appeal. The Court of Appeal is understandably bound by the decisions of the House of Lords. Up to the Court of Appeal level, each judge follows the decisions of all the higher courts but need not follow the views of judges in the same court or a lower court. The Court of Appeal can depart from its own decisions in civil cases when there is an erroneous decision, there are two conflicting earlier decisions on the same issue, and the Court can choose one and override the other or where a decision conflicts with a later decision of the House of Lords.
House of Lords
The House of Lords is the final court of appeal. Traditionally, the decisions given by the House of Lords were binding on all the lower courts and also on it. This rule underwent a modification in 1966, after which its decisions are no more binding on itself. This modification was brought about after it was felt that there should be provision for adapting English law to meet changing social conditions, and also borrow useful principles from superior Commonwealth courts. However, even now if an appellant chooses to persuade the House of Lords to depart from its own decision, he must specify so in his appeal documents explicitly.
The European Court of Justice
The European Court of Justice is located in the Luxembourg City, and is considered to be the Supreme Court of the European Union. It can intervene in the law of the United Kingdom on both civil and criminal matters. When a UK court feels that it is faced with a point of law that involves European law, it can ask for the ECJ’s decision on the point. Where there can be no further appeal in any of the national courts, the dispute can be referred to the European Court of Justice.
Though many believe that the United Kingdom is the same thing as England, it actually comprises of England and Wales (which, as a norm, form one jurisdiction), Scotland, and Northern Ireland (which together form the second and third jurisdiction).
The English legal system has a highly developed and a specialized court structure. On the civil side, the lowest court is the Civil Magistrate court and the County Court. The County Court includes the Small Claims Court. The Small Claims Court does not take any claim above L5,000. Furthermore, it follows a 5,000, referred to as the small claims procedure. Claims of even lesser value go to the Sheriff’s Court. Appeals from the Sheriff’s Court go to the Court of Sessions in Edinburgh, from where the parties are required to approach the House of Lords directly.
The Country Court takes action less than L25,000, personal injury claims that do not exceed L50,000, and equity and probate cases that do not cross the pecuniary limit of L30,000. As is obvious from the pecuniary jurisdiction, this court usually handles uncomplicated civil cases of debt, personal injury, and contract breach from England, Wales, and Northern Ireland.
The High Court, which comprises of the Queen’s Bench, the Family Court, and the Chancery court, is next in the hierarchy. The High Courts take action over L 50,000, and all applications for judicial review and injunctions. It also takes all matters of original jurisdiction cases that cannot go to the County Court.
There are three divisions in the High Court based on subject-matter of the disputes, to facilitate smooth and streamline functioning of the system. The Family division handles contested divorce and custody cases, the Chancery division takes up matters that deal with principles of equity, intellectual property, companies, and settlement of wills while all the matters that cannot be taken up the other two divisions are marked for the Queen’s Bench division. The Queen’s Bench division comprises of the admiralty court, Crown Officer list, and the Commercial Court.
The second highest court is the Court of Appeal that takes up only issues of law from the Country Courts, and the High Courts. It is bound by the decisions of the House of Lords. Like the High Courts in India, the judges of the court of Appeal are not bound by decisions laid by other Court of Appeal judges. Thus, they can depart from their own cases.
The House of Lords is the highest court, and is much like our Supreme Court. It is the final court of appeal, and all its decisions are binding on all lower courts. Till 1966, it was bound by its own decisions as well. Today, though this rule has changed when the appellant counsel wants the court to depart from its previous decision, he must necessarily specify it in his appeal documents.
Since the United Kingdom became a part of the European Economic Community; the European Court of Justice (Supreme Court of the European Union) has the power to intervene in the United Kingdom’s legal system in both civil and criminal matters. Particularly, when a matter involves a European law issue, then the courts in the United Kingdom can ask the ECJ’s decision on the same. Moreover, when there is no further appeal in the national courts then the disputes can be referred to the ECJ.
The governmental system is fairly simple compared to the court organizational set-up. It comprises of the House of Commons, the House of Lords, and the Monarch. A bill has to be presented to both the houses (though in reality like the Indian Parliament the lower house, That is, House of Commons seems to control the procedure) and get the royal stamp before it can become an Act of Parliament (remember in our system a bill needs approval from both houses and assent from the President before it can become the law.)
Two important sources of law in the United Kingdom are the legislations passed by the parliament, and the law developed by the courts (comprises of both substantive and procedural law). The latter is referred as common law (pick up any voluminous case from the High Court and Supreme Court of India, and you will most probably find a mention of it). The trend in the recent years has been that there is emphasis on statute based rather than court based development of law. Another important source of law is the European Community law. Almost all laws created by the European Community have force in the United Kingdom.
Even though, the European legal system has significant influence on the United Kingdom legal system, yet the traditional distinction between common and civil law is still maintained. Common law as you have read is the law developed by the courts in the United Kingdom while civil law refers to the European system of law that the United Kingdom has embraced.
There you have the legal system of the United Kingdom at your fingertips. So, next time when you are researching for an open memo do not get confused about the hierarchy between the Queen’s Bench and House of Lords (the monarch does not preside over the Queen’s Bench).
Question and Answer
Have a doubt on this chapter?
Do you need more information?
Do you like to talk to our LPO experts?
Do you want to get a professional training?
Are you looking for a practical section?
Are you looking for LPO Certification from PathLegal?
Write to [email protected]