ELS Study Notes

Chapter 1: Case Law

1. A ratio decidendi is the rational for the decision made in the case. It is why the judgement was
made in the way it was based on the facts of that case. The legal reason for the decision, that
allows determination on how to use it in relation to precedent.
2. An obiter dicta is something said in the judgement but that is not part of the ratio decidendi. It
means “by the way.” It does not form part of the precedent of the judgement, but can be used
as a persuasive argument.
3. The Supreme Court is not bound by its own previous decision. Up until 1966, the HoL, which
became the Supreme Court in 2009, was bound by its previous decisions, but it is no longer this
way.
4. Privy Council judgements are generally not binding on any domestic courts, but are usually
binding to commonwealth courts that request a ruling. They are only persuasive in the British
courts. Recently, English courts must follow a domestic court ruling (CoA or higher) if a privy
council decision conflicts with a precedent in any of these, unless the privy council specifically
says to follow its decision.
5. Section 2 of the Human Rights Act 1998 requires that the English courts take into consideration
any previous decisions of the ECHR (European Court of Human Rights) and allows domestic
courts to set aside English precedent in cases where the British precedent conflicts with the
decision of the ECHR.

Chapter 2: Statute Law

1. A Private Members Bill is one that is introduced by a member of parliament, rather than by the
government. There are three ways for them to introduce these. There are 10 Fridays where 20
backbenchers get to introduce bills. Standing order 39, allowing them to introduce after the
other 20 have gone. Standing rule 13, there they get 10 minutes to present it.
2. A Bill that proposes to change the law as it applies to the whole country is a Public Bill. Bills that
involve public money or taxes or are financial are always introduced in the House of Commons.
3. The Parliaments Act 1911 allowed the Commons to pass legislation without the agreement of
the Lords, if they veto the bill when it had been brought up 3 and passed, and there were two
years, it could be passed by just the commons and the royal assent. The 1949 act reduced this
limit to twice in 1 year. The 1911 act also reduced the term of parliament from 7 to 5 years.
Money bills can only be delayed for 1 month, due to the 1949 act.
4. A proposed Bill has to pass, by simple majority, first the House of Commons, then the House of
Lords, then receive the Royal Assent, although that last part is just a formality now. It can also
avoid the House of Lords by using the procedure in The Parliament Acts 1911 and 1949.

Chapter 3: Statutory Interpretation

1. The Literal Rule for interpreting legislation is the main way that statute is interpreted. It requires
the judge to only look at the words in the act itself, and ignore things like the context of when it
was made or parliament’s intention in creating that act. This means they give the words in the
act their everyday meanings.
 2. The Mischief Rule is basically to figure out what problem/mischief parliament was trying to
prevent with the legislation, then making a ruling based on that fact. Which part of law wasn’t
covered until this specific act was passed.
a. What was the law before this law was passed?
b. What was the problem they were trying to fix?
c. How did parliament mean to fix that problem, what was the intended solution?
d. Why did they choose that solution?
3. The importance of Pepper v Hart 1993 is that is allowed the courts to consider the comments of
Parliament when they were debating/passing the Bill in parliament in order to interpret the
meaning of the legislation. Before this case, this was not allowed. This is only allowed under
certain circumstances.
4. The case that laid down the Mischief Rule was Heydon’s Case (1584). The case was about land
leases and religious colleges. They interpreted the Dissolution act as allowing the Wares to keep
their property, but not Heydon.
5. First, the courts try the Literal Rule, then if that doesn’t work they try the Golden Rule which lets
the court interpret words in a certain way if the common meaning would result in a clearly
absurd result. The narrow meaning makes it so that if there are two meanings, the non-absurd
one is used. The wider meaning is when there is only one meaning, but it would be absurd. If
this fails too, the court then uses the Mischief Rule.

Chapter 4: Delegated Legislation

1. Generally, delegated legislation is legislation that people/bodies other than parliament are
allowed to make. Parliament has delegated its law-making power, and the body/person can only
make laws that are under the scope of the actual act of Parliament that gave them that power.
2. By-laws are basically rules/regulations made by local authorities that are legally binding in that
area. Granted through legislation like the Local Government Act 1972.
3. The negative resolution procedure means that a statutory instrument can pass without debate,
and will only require debate if either house of parliament disagrees.
4. Parliament and the Judiciary both have some control of delegated legislation. All delegated
legislated delegation is placed before parliament, and they can deny it. There is also the Joint
Select Committee on Statutory Instruments who review it to see if something needs to be
pointed out. There are also specific committees for EU law and by-laws, and each has a set of
reasons for why to draw the House’s attention to them. The judiciary can determine it ultra
vires, through judicial review. It can be found to be invalid if it does something that goes against
the intent of the primary legislation it was granted under. The HRA 1998 increased the courts
power over delegated legislation.

Chapter 5: European Law

1. A court can refer to the ECJ when it believes that the point of EU law being raised is necessary to
decide the case. Courts of last instance have a duty, unless there is precedent or Acte Claire.
2. The Act that gave European law direct effect in the UK was the European Communities Act 1972
3. The act that requires a referendum to amend any EU treaty, or sign one that would increase the
EU power over the UK is the European Union Act 2011.
 4. There are 4 overall forms of EU law. Internal treaties and protocols, international agreements,
secondary legislation, and decisions of the CJEU. The internal treaties are the TEU, the TFEU, and
the CFREU. Secondary regulations include: regulations, which have direct effect without
member state ratification; Directives, which states have discretion on how to implement;
decisions, which are directed at specific states or individuals and aren’t supposed to have wide
effect. There are also recommendations and opinions.

Chapter 6: Custom

1. There are strict conditions for a custom to become law. It has to have been around since 1189
(time immemorial), been exercised continuously since then, peaceably and without opposition,
people must have felt it was obligatory not optional, you have to be able to precisely define it, it
must be consistent with other customs of the area, and it must be reasonable. All of these
conditions have to be met for a custom to become a source of law.

Chapter 7: Equity

1. The name that has been given to the “rules” which try to make sure equitable decisions are fair
and underpin the goal of equity, is “Maxims.” Although they are very contradictory, and usually
only used when there is no actual reason to make a judgement and the judge needs something
to back up their opinion. Sometimes they just make them up.
2. Equitable remedies are only awarded at the discretion of the court. But the remedies are:
a. Specific Performance, which makes the person who broke a contract do what they are
supposed to do, usually sale of land.
b. Injunction, which allows the court to make someone either do or not do something. Like
freezing orders, search orders.
c. Rectification, which is the alteration of contractual documents. It alters it in the
assumption that it does not represent the true agreement.
d. Rescission, which sets aside the terms of a contract, so each party is where they started.
3. There are like 20 equitable maxims. Examples include:
a. Equity treats as done what ought to be done
b. Equity will not assist a volunteer
c. He who comes to equity must do so with clean hands
d. Equity will not complete an imperfect gift
e. Equity will not allow a trust for want of a trustee

Chapter 8: Treaties

1. The normal way for treaty commitments to become law in the UK is for Parliament to pass
legislation that complies with the commitments, through some sort of act.
2. The Constitutional Reform and Governance Act 2010 gave parliament a statutory footing to
review treaties before they were ratified. Not the declaration of war or deployment of forces
though. Parliament’s ability to review treaties makes is important in the Miller case about Article
50.

Chapter 9: Law Reform

 1. The Inquiries Act 2005 was designed to allow ministers to review ministry decisions, and placed
inquiries into the hands of ministers. It got rid of the Tribunals of Inquiry (Evidence) Act 1921,
which had allowed tribunals with binding decisions. It puts the ministers in charge of ministerial
inquiries. So, Parliament basically only gets the results of an inquiry now, the reports themselves
go to the minister in charge of the inquiry.
2. The law commission was established under the Law Commissions Act 1965. It evaluates laws
and how they are working, and recommends reforms to make the law more fair, modern, and
cost-effective. They want to make the law as simple as possible, through codification,
consolidation, and revision.

Chapter 10: The Judges

1. The Judge that presides over the Civil Division of the Court of Appeal is the Master of The Rolls.
The current Master of the Rolls is Sir Terence Etherton.
2. The judge that presides over the Criminal Division of the Court of Appeal is called the Lord Chief
Justice. The current Lord Chief Justice is Sir John Thomas (Lord Thomas of Cwmgiedd).
3. The body that selects/recommends the High Court Justices is The Judicial Appointments
Commissions (JAC). The Lord Chancellor still appoints them, but he can only appoint someone
who has been recommended by the JAC. appointments for Lords Justice and above are formally
made by the Queen, on the advice of the PM after the commission makes a recommendation.
4. The Act of Settlement 1700 makes it so High Court judges can only be dismissed by the
Monarch/Queen, if both houses of Parliament pass a resolution to do so. It has only happened
once, in 1830 to Sir John Barrington, a judge of the High Court of Admiralty in Ireland.
5. The legislation that reduced the Lord Chancellor’s powers was the Constitutional Reform Act
2005.
6. A special commission is made to select new Supreme court justices. The commission, made by
the Prime Minister, has a minimum of 5 members. At least one SC judge, one person with no
legal qualifications, and one member from each of the three judicial appointing bodies of the
UK.
7. One female sits on the Supreme Court currently, Lady Hale.
8. Judges do not all wear wigs. Judges hearing civil cases no longer have to wear wigs, since 2008.
Judges hearing criminal cases still have to wear wigs. They all still need to wear gowns though.
9. The judiciary is supposed to be independent of the government. But there is involvement of
other parts of the government, that makes it less so. The Constitutional Reform Act 2005
guaranteed the independence of the judiciary.

Chapter 11: The Legal Professions

1. The body that handles complaints against a barrister is the Legal Ombudsman.
2. Alternative Business structures are practices that allow non-lawyers to become partners at law
firms (25%), called a legal disciplinary practice. Multi-disciplinary partnerships have people from
a range of professions, so they are like a one-stop-shop. Alternative business structures operate
differently than firms or independent barristers. Alternative business structures allow other
companies to offer legal advice.
3. Solicitor Advocates used to be only allowed to appear in the lower courts, but since 1990 have
been allowed to appear in the higher courts.
 4. The body that made the key report before the Legal Services Act 2007 was the Clementi
Commission, formed by Sir David Clementi.
5. The body that the Legal Services Act 2007 established was the Legal Services Board
6. The Solicitor profession is much larger, there are about 130,000 solicitors, and 12,700 Barristers.
7. A barrister needs a law degree, or a different degree and then the GDL/CPE conversion.
Followed by the BPTC and then a puppilage.
8. To become a solicitor, it is the same, except a LPC followed by a training contract. You can show
enough experience through other methods, but it is very difficult.
9. The ratio from Arthur JS Hall & Co v Simons (2000) was that barristers were no longer immune
from negligence. They were subject to the same negligence liability in tort as any other
profession.
10. One of the changes of the Legal Services Act 2007 was the introduction of “regulated legal
activities.” Also, the regulating board was created, and there were changes to structures
11. They might successfully. The alternative business structure thing is a modern need, makes it
easier. Allowing the duties of solicitors and barristers to be more mixed brings it closer to every
other common law company.
12. The Legal Education and Training Review recommended that the education outlines of the
program be outlined, based on occupational knowledge. Upon completion of qualifications,
students should have to prove competence in the professional skills, “day one learning
outcomes.” They also recommended that the education be funded similar to medicine.

Chapter 12: The Jury

1. The Jury sits in the Crown Court, for criminal cases, occasionally civil cases.
2. The jury has to decide what the facts are, by weighing the evidence, and then apply the law as
the judge directs to the facts to come to a verdict. In civil cases, they may decide the damages
3. Cheryl Thomas, for the Ministry of Justice, wrote the research report “Are Juries Fair” in 2010.
4. Police officers were not allowed to be on a jury before 2003, but they are now. But it is decided
on a case by case basis.
5. There’s no inherent reason a police officer shouldn’t be on a jury. But, they probably have more
bias or conflict than someone else.
6. Technically judges are allowed to be jurors
7. A person must be between 18-75, lived in the UK for 5 years since the age of 13, and on the
electoral register.
8. After the 2003 Criminal Justice Act, juries can still hear serious criminal fraud cases.
9. There are a lot of reasons to get rid of juries, like their lack of competence, they are not really
representative and their decisions can be perverse or biased. They are also susceptible to
manipulation.
10. A judge can hear a case in the crown court without a jury when there is a serious risk of jury
tampering or if it involves complex/lengthy commercial arrangements. That second thing was
repealed in 2012 before it was ever brought into force.
11. In R V Wang, where the trial judge told the jury to find a verdict of guilty, the HoL said that the
judge could not say that, there were no circumstances where a judge could do that. The jury is
entitled to find a non-guilty verdict even when the law clearly demands a guilty verdict.
 12. A jury does not have to reach a unanimous verdict if the judge considered they have been
deliberating for a reasonable time (more than two hours) and are still not unanimous. It can be
10:2 or 9:1. The judge can then tell them that it need not be unanimous.
13. The jury serves to confirm he idea that we are not ruled by an all-powerful authority. If ordinary
people are ultimately charged with determining someone’s freedom, it serves to reinforce the
idea that we live in a fair and free society.

Chapter 13: Magistrates

1. The only actual qualification for a magistrate is that they are under 65 and live within 15 miles of
the commission area where they will work. Even these might be disregarded if it is found in the
public interest.
2. 95% of all criminal cases (1 million) are heard by magistrates.
3. Magistrates hear mainly criminal cases. Specifically, they hear applications for bail, less serious
crimes, and appeals when someone is appealing a magistrate’s decision in a crown court, sitting
with the judge. They don’t hear appeals for sentences though.

Chapter 14: Administration of Justice

1. In 2007 the Department of Constitutional Affairs was replaced by a larger Ministry of Justice.
This new ministry also took over prisons and probation from the Home Office.
2. The Ministry of Justice is responsible for:
a. The court service, including judges
b. The penal system, including prisons and community punishments
c. Legal aid
3. Another name for the Minister for Justice is the Lord Chancellor.

Chapter 15: Introduction to Human Rights

1. The European Convention on Human Rights is an international treaty of the EU. It was signed in
Rome in 1950, ratified by the UK in 1951, and became binding in 1953. The UK didn’t
incorporate it as domestic law until the Human Rights Act 1998.
2. The Human rights act incorporated the European Convention on Human Rights into domestic
law, meaning people could now try cases of human rights in domestic courts, instead of having
to go to the European Court of Human Rights.
3. There are many rights protected by the convention.
a. Art. 2: the right to life
b. Art. 3: freedom from torture and inhuman or degrading treatment
c. Art. 4: freedom from slavery or forced labour
d. Art. 5: the right to liberty and security of the person
e. Art. 6: the right to a fair trial
f. Art. 7: the prohibition of retrospective criminal laws
g. Art. 8: the right to respect for a person’s private and family life, home, and
correspondence
h. Art. 9: freedom of thought, conscience, and religion
i. Art. 10: freedom of expression
 j. Art. 11: freedom of peaceful assembly and association, including the right to join a trade
union
k. Art. 12: The right to marry and have a family
l. Also, protocols:
i. 1. The right to peaceful enjoyment of one’s possessions
ii. 2. The right to education
iii. 3. The right to free elections
4. The Equality Act 2006 replaces the Commission for Racial Equality, as well as the Disability
Rights Commission, and the Equal Opportunities Commission with the Commission for Equality
and Human Rights.
5. The European Charter of Fundamental Rights gives the citizens of the EU certain political, social
and economic rights. It also gives the EU courts the right to strike down EU laws/regulations that
contravene the charter. Also, the UK and Poland have a different agreement with this charter.
The EU courts cannot find certain protocols and processes of the UK and Poland inconsistent
with the charter, and Title IV of the charter doesn’t create justiciable rights unless they have
their own domestic laws for it.
6. Article 6 of the European Convention of Human Rights guarantees the right to a free trial.

Chapter 16: Remedies for Infringement of Human Rights

1. Habeus Corpus allows someone who is detained to challenge the legality of their detention, and
if they are successful, they can be quickly released. It takes priority over any other court
business, and an application is made in the Divisional Court.
2. The body that awards compensation to innocent victims of violent crimes is the Criminal Injuries
Compensation Authority, through the Criminal Injuries Compensation Scheme (CICS).

Chapter 17: Paying for Legal Services

1. The legal aid system was established after WW2, on 1949. By the 1980’s it was 6 different
schemes, under the Legal Aid Board.
2. A conditional fee arrangement allows solicitors to only charge a fee if they win the case, or
charge a reduced fee if they lose, and charge up to twice their usual fee if they win. Usually the
uplift is around 43%. (no win, no fee). Available for all cases except medical negligence. These
uplifts can only be paid by the loser in certain types of cases, not privacy, defamation, or
insolvency claims though.
3. A contingency fee allows a lawyer to take a percentage of damages, if they win the case. This is
if they have a conditional fee arrangement. It can be up to 25% for personal injury, 35% for
employment, and 50% for all other cases including commercial cases.
4. Legal Aid is not available for divorce cases, and most other civil cases, except if the divorce case
involves domestic violence, child abduction, or forced marriage.
5. Generally, legal aid is not available for defamation cases.
6. Public defenders are criminal defence lawyers directly employed by the Legal Service
Commission (Legal Aid Agency).
7. In the McLibel Two case, (Steel v United Kingdom[2005]) the ECHR ruled that it was a breach of
article 6 (fair trial) for the defendants to have to defend themselves when McDonald’s had a
 team of specialist lawyers. Also, they said it was a beach of their article 10 rights (Freedom of
expression).
8. Lord Jackson recommended reforms that would change the costs of the litigation process. Most
of these reforms reduced the amount that the loser would have to pay for the costs of the other
party (not the damage). Like they shouldn’t have to pay the uplift anymore. Also, there is the
qualified one-way cost-shifting rule (QOCS). So, now the defendant has to pay the court costs if
they lose, but the claimant doesn’t have to pay the defendant’s court costs if they lose.
9. The Legal Aid, Sentencing, and Punishment of Offenders Act 2012 contains Lord Jackson’s
provisions.

Chapter 19: The Criminal Trial Process

1. Indictable offenses are more serious, like rape and murder. They can only be heard in the Crown
Court.
2. An adversarial process basically means that each side of the case fights their own case, and only
tries to bring evidence and witnesses that will advance their side, and attack what the other side
brings. The Judge is more of a referee, unlike in inquisitorial systems where the judge interviews
the witnesses and gathers evidence.
3. Cameras are technically allowed in some courts, like the Court of Appeal. Only certain things can
be broadcast though, like the opening and closing arguments. But generally, cameras aren’t
really allowed in courts.
4. The body that brings prosecutions is the Crown Prosecution Service (CPS). It is headed by the
Director of Public Prosecutions (DPP). Now, both the DPP and the AG can technically bring
prosecutions.
5. Private citizens are allowed to bring prosecutions for criminal offences, and they function the
same as if it had been brought by the CPS or Crown, so it can be in the magistrate’s court.
6. The person at the head of the CPS is the DPP, currently the DPP is Alison Saunders.
7. A plea bargain is a negotiation between the defendant and the prosecution. In exchange for a
guilty plea, the prosecution agrees to pursue a lesser charge with a reduced sentence.
8. I think more minorities should be employed in the criminal justice system.

Chapter 22: The Civil Justice System

1. The county courts here civil cases

2. Case management is now in the hands of the judges.
3. The new rules were designed to avoid litigation through pre-trial settlements. The rules are
about ensuring the parties are on equal footing, Sir saving expense, dealing with cases in
proportionate ways in regard to money, complexity, etc., expeditiousness, court resources,
enforcing compliance with the rules.
4. A complicated case worth £100,000 would normally be on the multi-track. Under 10,000 is small
claims track, between 10 and 25,000 is fast-track (350,000 for equity proceedings).
5. A whiplash claim would generally be submitted in the county courts on the small claims track.
6. Lord Woolf wanted to increase the use of Alternative Dispute Resolution (ADR), he felt that
litigation should be a last resort.
7. The title of Lord Woolf’s report in 1996 was called “Access to Justice.”
 8. There hasn’t been a real increase in ADR, but there has been an increase on openness between
the parties, and early settlements of cases.

Chapter 23: Tribunals

1. Sir Andrew Leggatt wrote the report that preceded the Tribunals, Court, and Enforcement Act
2007.
2. The body that normally hears appeals for the first-tier tribunal is the Upper Tribunal. Decisions
of the Upper Tribunal are normally appealed to the Court of Appeal.

Chapter 24: Appeals and Judicial Review

1. The prosecution can challenge an acquittal, because since the Criminal Justice Act 2003, s.75
abolished the rule of double jeopardy. There are 29 serious offences listed which can be
appealed against. There were previously some exceptions to double jeopardy, but they were
mostly restricted to a point of law, rather than the verdict.
2. The Criminal Cases Review Commission (CCRC) was created in light of cases involving
miscarriages of justice that did not allow appeals.
3. The highest appeal court in the land for both criminal and civil cases is the Supreme Court. It
was formed in 2009 after the Constitutional Reform Act 2005 abolished the House of Lords.
4. Court Rule 52 required permission to appeal for almost all appeals. The permission to appeal
can be granted from the court of first instance or the appellate court itself.