Humboldt-Universität Zu Berlin

Humboldt-Universität zu Berlin

Großbritannien-Zentrum/Rechtswissenschaftliche Fakultät

Prof. Dr. Gerhard Dannemann

WS 2004/05

Please note:

The following is a transcript of slides used for this lecture. The purpose of these slides is to provide a visual aid for an oral presentation. Slides should not be mistaken for a summary of the lecture. Many points are made in the lecture which require no visual aid.

The English Legal System: a Historical Introduction

Course Outline

Introduction

The Evolution of the English Legal System

1. Local Justice in Saxon to Early Norman Times
2. The Origin of the Common Law
3. Writs and Actions
4. Equity
5. The Age of Modernisation

Legal Education

The Legal Professions

Courts and Tribunals

The Civil Justice System

The Criminal Justice System

Sources of Law

1. Introduction
2. Case Law
3. Statutes
4. Custom

Introduction

Suggested Reading

J.H.Baker, An Introduction to English Legal History, 3rd ed. London 1990

J.H.Baker and S.F.C. Milsom, Sources of English Legal History: Private Law to 1750, London 1986

Smith, Bailey and Gunn on the Modern English Legal System, 4th ed. by S.H. Bailey, J.P.L. Ching, M.J. Gunn and D.C. Ormerod, London 2002

Catherine Elliott and Frances Quinn, English Legal System, 3rd ed. Harlow 2000

Gary Slapper and David Kelly, English Law, London 2000

Smith and Keenan’s English Law, 12th ed. by Denis Keenan, London 1998

David Ibbetson, A Historical Introduction to the Law of Obligations, Oxford 1999

All of the above are available at the library of the GBZ/Centre of British Studies, Dorotheenstr. 65.

Bracton, On the laws and customs of England, on-line:

The Evolution of the English Legal System

1. Local Justice in Saxon to Early Norman Times

2. The Origin of the Common Law

Bracton, De legibus et consuetudinibus Angliae

Picture:

3. Writs and Actions

Bracton, Definition of “action”:

“the right of pursuing in a judicial proceeding what is due to one”

(Translation by Samuel E Thorne.)

Bracton on what gives rise to actions:

“Actions are born of precedent obligations, as a daughter is born of a mother. The obligation, the mother of the action, takes its own origin and beginning from some precedent cause.”

Sample: writ of replevin

Rex vicecomiti Nottingham salutem. Praecipimus tibi quod juste et sine dilatione replegiari facias B. quendam equum suum quod D. cepit et injuste detinet, ut dicitur, et postea eum inde juste deduci facias, ne amplius inde clamorem audiamus pro defectu justitiae. Teste etc.

(The king to the sheriff of Nottingham, greeting. We command you that justly and without delay you cause to be replevied to B. a certain horse of his which D. took and unjustly detains, as it is said, and afterwards cause him to be justly dealt with therein, that we may hear no more complaint about this for want of justice. Witness etc.)

(Source: Baker p. 612-3.)

An action in trespass

Rattlesdene v. Grunestone (1317) YB 10 Edw II (54 SS) 140, as summarised by Ibbetson p. 44:

“The plaintiff alleged that the defendants had sold to him a barrel of wine, which remained in their possession. Before it had been delivered, they, by force of arms, with swords bows and arrows etc, drew off a great part of the wine from the barrel and replaced the wine they had extracted with salt water.”

4. Equity

Advantages of early Chancery proceedings:

• Complaints were not subject to the form of actions and writs.

• Chancery did not use juries for fact finding.

• Taking of evidence was informal.

• Chancery could conduct business anywhere and at any time.

• Proceedings were in English language.

The Chancellor on his jurisdiction

Lord Ellesmere C in Earl of Oxford’s Case (1615) 1 Rep. Ch. 1 at 6:

“The cause why there is a Chancery is, for that men’s actions are so diverse and infinite that it is impossible to make a general law which may aptly meet with every particular and not fail in some circumstances. The office of the chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs and oppressions of what nature soever they be, and so soften and mollify the extremity of the law.”

5. The Age of Modernisation

A literary view of proceedings at Chancery

From: Charles Dickens, Bleak House (1853), Ch. 1: In Chancery

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.

…

Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

"Mr. Tangle," says the Lord High Chancellor, latterly something restless under the eloquence of that learned gentleman. ... "Have you nearly concluded your argument?“

"Mlud, no--variety of points--feel it my duty tsubmit--ludship," is the reply that slides out of Mr. Tangle.

"Several members of the bar are still to be heard, I believe?" says the Chancellor with a slight smile.

Eighteen of Mr. Tangle's learned friends, each armed with a little summary of eighteen hundred sheets, bob up like eighteen hammers in a pianoforte, make eighteen bows, and drop into their eighteen places of obscurity.

"We will proceed with the hearing on Wednesday fortnight," says the Chancellor. For the question at issue is only a question of costs, a mere bud on the forest tree of the parent suit, and really will come to a settlement one of these days.

Gradual removal of juries from civil cases:

Common Law Procedure Act 1854

Juries Act 1918

Administration of Civil Justice (Miscellaneous Provisions) Act 1933

Major legislative reforms: forms of actions

Forms of actions gradually abolished by:

Uniformity of Process Act 1832

Common Law Procedure Act 1852

Major legislative reforms: merger of jurisdictions

Different jurisdictions of the Common Law Courts and the Chancery are fused into a single jurisdiction of the High Court:

Judicature Act 1873

Judicature Act 1875

Economic liberalism and the judiciary

Sir George Jessel MR in Printing and Numerical Registering Co v Sampson (1875) L.R. 19 Eq. 462, 465

“… you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice.”

Legal Education and Legal Professions

Legal Education: Select Committee, 1846

When in 1846 a Select Committee inquired into the state of legal education in this country, it reported that ‘no legal education worthy of the name is at the moment to be had’. Whereas in Berlin, for instance, there were fourteen professors teaching some thirty branches of law to hundreds of students, in Oxford and Cambridge there appeared to be neither lectures, nor examinations, nor for that matter any students.

(Zander, The Law-Making Process, 5th ed. 1999 p. 388-9)

Bar Vocational Course: Skills

•Case Work Skills

- Case Preparation

- Legal Research

•Written Skills

- General written skills

- Opinion-writing (that is giving written advice)

- Drafting (of various types of documents)

•Interpersonal Skills

- Conference Skills (interviewing clients)

- Negotiation

- Advocacy (court or tribunal appearances)

Bar Vocational Course: Compulsory Areas of Law

• Civil Litigation & remedies
• Criminal Litigation & sentencing
• Evidence
• Professional Ethics

Solicitors: Qualification

Graphic explanation available at:

Legal Practice Course: “Core Areas”

• The Ethical Context - Professional Conduct and Client Care, including the Solicitors' Accounts Rules and the Financial Services Act.
• The Skills Context - Advocacy, Interviewing and Advising, Writing and Drafting and Practical Legal Research.
• The Taxation Context - Taxation, Trusts and Tax Planning.
• The European Context - EU Law.
• Probate & Administration of Estates.

Legal Practice Course: “Compulsory Areas”

• Litigation & Advocacy;
• Business Law & Practice;
• Conveyancing.

Judges: Functions and Types of Work

Judicial Statistics 2002 at:

Go to Table 9.2

Courts and Tribunals

Judicial Statistics 2002, p. 3 (court structure)

Proceedings at County Court:

Judicial Statistics, Table 4.2

Proceedings at the High Court, Queen’s Bench Division:

Judicial Statistics, Table 3.2

Proceedings at the High Court, Chancery Division:

Judicial Statistics, Table 2.1

Appeals 1938-2002

Judicial Statistics, Table 1.17

The Civil Justice System

Claim form. This can be downloaded from:

Orality in English and German Proceedings

In theory, both English and German law subscribe to the view that civil proceedings are oral. The practice is different:

English Law / German Law
Witness accounts / Written and oral / Oral only
Expert accounts / Written, sometimes oral / Written and usually oral
Legal arguments / Little written, all oral / All written, little oral

The Criminal Justice System

Prosecution options for the police:

(1)No further action - if there is insufficient evidence, or no indication for an offence.

(2)Formal caution - there is sufficient evidence, but the offence is marginal.

(3)Summons – for certain petty offences, in particular relating to traffic, where police think that caution is not sufficient.

(4)Charge – all other cases.

Verdict and Sentence

The verdict establishes whether the defendant has committed a criminal offence. Only necessary where a defendant pleads “not guilty”.

The sentence defines the sanction for an offence established either by verdict or by a plea of “guilty”.

Summary procedure and trial by indictment

Summary procedure: before magistrates’ court. Charge(s) defined by summons. Verdict and sentence passed through magistrates or district judges.

Trial by indictment: before crown court. Charge(s) defined by indictment. Verdict by jury, sentence by judge.

Trial by Jury

Magna Carta 1215, ch. 39:

“No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.”

Sources of Law

1. Introduction

2. Case Law

Stare decisis and ratio decidendi

Stare decisis, or doctrine of the binding precedent

If the very legal question to be decided has been decided in a previous case, the same rule will be applied.

Ratio decidendi

= a legal rule derived from, and consistent with, those parts of the legal reasoning within a judgment on which the outcome of the case depends.

Ratio decidendi: an example

Case 1. A finds a purse in B's shop and takes it home. The owner is unknown. B brings what is called a possessory action against A. This means that B is suing A in court for the value of the purse, or perhaps even surrender of the purse and its contents, on the ground that B was the possessor of this purse and that A took the purse out of his possession.

The judge decides for A, saying that B could not have had possession because he neither (1) knew that the purse was there, nor (2) had any sufficient physical control. While discussing (2), the judge points out that the purse was found in the public part of the shop.

There are at least for different possible rationes of this decision:

(1)For possession, both knowledge and physical control are necessary.

(2)For possession, at least knowledge is necessary.

(3)For possession, at least physical control is necessary.

(4)The owner of a place to which the public has access does not have, by virtue simply of being owner, sufficient physical control of things lying there to have possession of them.

Elaborating on the ratio through the next similar case:

Case 2. C, a guest in D's house, finds a purse in a desk which D has just bought. D has not yet noticed the purse. C takes it and D discovers that he has done so. D claims that C took the purse out of his possession.

D’s claim would fail on either ratio (1) and (2). It could succeed on ratio (3), depending on how “physical control” is defined. It would succeed on ratio (4).

Ratio decidendi: the example of Hillyer v St Bartholomew's Hospital [1909] 2 KB 820 (CA)

Farwell LJ:

The nurses and attendants are not put in the place of the hospital to do work which the governors of the hospital intended to do themselves, because they had not undertaken to operate or assist in operating, but only to supply qualified persons to act as nurses and assistants under the control of the operating surgeon. ... Let me suppose that the good Samaritan not only employs the surgeon, but takes the patient into his own house, and gives him the services of his own servant, whom he believes to be a skilful nurse, in order to assist the surgeon in an operation: the same reasoning would apply - there is no more undertaking by A. to assist the surgeon in the operation than there is to operate; the undertaking is the same in both - to procure the services of surgeon and nurse reasonably believed by him to be competent. I am therefore of opinion that the defendants are not liable at all to the plaintiff.

Kennedy LJ:

In my view, the duty which the law implies in the relation of the hospital authority to a patient and the corresponding liability are limited. The governors of a public hospital, by their admission of the patient to enjoy in the hospital the gratuitous benefit of its care, do, I think, undertake that the patient whilst there shall be treated only by experts, whether surgeons, physicians or nurses, of whose professional competence the governors have taken reasonable care to assure themselves... . But I see no ground for holding it to be a right legal inference from the circumstances of the relation of hospital and patient that the hospital authority makes itself liable in damages, if members of its professional staff, of whose competence there is no question, act negligently towards the patient in some matter of professional care or skill... . It must be understood that I am speaking only of the conduct of the hospital staff in matters of professional skill, in which the governors of the hospital neither do nor could properly interfere either by rule or by supervision.

Cozens-Hardy MR:

"I think the decision in this case is quite right, and the appeal must be dismissed for the reasons contained in the judgments of Farwell L.J. and Kennedy L.J., which I have read."

An interpretation of Hillyer:

In Gold v Essex County Council [1942] 2 KB 293 (CA), the judges applied Hillyer and had to take a decision on its ratio. The court held that the reason indicated by Farwell LJ was wider then necessary, and that the true ratio for the decision in Hillyer was the reason proposed by Kennedy LJ. However, in the same decision, this ratio was also re-interpreted. It was held that a hospital nurse would always act for the hospital. However, if she did what a qualified doctor told her to do, she could not herself be negligent.

Another interpretation of Hillyer:

Cassidy v Ministry of Health [1951] 2 KB 343 (CA).

Here it was held that a doctor who was employed by the hospital could be a servant of the hospital in the same way as a nurse.

Case law on electronic databases

Westlaw – at
datenbanken/datenbanken_intern/westlaw.html. Once you have logged in, select “uk-caseloc” as database and click on “GO”. There are various ways to locate cases. If you are, for example, looking for Krell v Henry [1903] 2 K.B. 740, you could enter: Krell AND Henry in the field “Terms and Connectors”.

Lexis is available from the library of the Centre for British Studies, Dorotheenstr. 65. Go to and log in with the UserID and password provided to you there. Click on Legal (excluding US), United Kingdom, then Case Law, then UK cases, combined courts. Searches are similar to Westlaw.

3. Statutes

Statutes: The Process of Enactment

(1)Governmental intention formed, e.g. through election manifesto or consultation process (“white paper”)

(2)Parliamentary Counsel instructed to draft a Bill

(3)Bill discussed, amended, passed in the House of Commons

(4)Bill discussed etc. in the House of Lords

(5)Queen gives Royal Assent

Statutes: where to find them

In printed form: The Law Reports, Statutes

In electronic form: (from 1988)

Characteristic features of UK statutes

Lord Denning in Bulmer Ltd v Bollinger S.A. [1974] 3 WLR 202, 215:

"The draftsmen of our statutes have striven to express themselves with the utmost exactness. They have tried to foresee all possible circumstances that may arise and to provide for them. They have sacrificed style and simplicity. They have foregone brevity. They have become long and involved. In consequence, the judges have followed suit. They interpret a statute as applying only to the circumstances covered by the very words. They give them a literal interpretation. If the words of the statute do not cover a new situation - which was not foreseen - the judges hold that they have no power to fill the gap. To do so would be a "naked usurpation of the legislative function" ... . The gap must remain open until Parliament finds time to fill it.

How different is this Treaty? It lays down general principles. It expresses its aims and purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the Treaty there are gaps and lacunae. These have to be filled in by the judges, or by Regulations or directives. It is the European way."

Custom as Source of Law

Leading case: R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335

Seven requirements, according to Zander, The law-making process:

(1)Rule must have existed from “time immemorial”, defined by statute to mean from 1189.

(2)Must have existed continuously since then.

(3)Custom must have been enjoyed peaceably without opposition.

(4)Must have been felt to be obligatory.

(5)Must have been capable of being defined precisely – element of certainty.

(6)Must have been consistent with other custom.

(7)Must be reasonable.

Rules on Prescription

(1)The party who relies on prescription must have used the other party’s property for a period of twenty years.

(2)The party must have claimed a right of doing so, and in particular used the other party’s property without force, stealth, or licence of the other party.