English Common Law: Structure and Principles Week


English Common Law: Structure and Principles

Week Two: The Hierarchy of the Courts and Common Law and Equity

Additional Notes, Quotes, Case Citations and Web Links for Week Two



What is the function of the Hierarchy of Courts?

Civil and Criminal courts.

“Civil court cases arise where an individual or a business believes their rights have been infringed.

Civil justice in England and Wales is mainly dealt with in the county courts and, in the case of more substantial or complex cases, the High Court. The jurisdiction covers a very wide range - from quite small or simple claims, for example damaged goods or recovery of debt, to large claims between multi-national companies.

Civil cases involve hearings in open court which the public may attend, hearings in the judge's private room from which the public are excluded, and matters decided by the judge in private but on the basis of the papers alone.

Courts in the civil jurisdiction do not have the power to imprison a losing party.

Ordinarily, but not always, they award financial 'damages' to the successful party, the size of which depends on the circumstances of the claim.”

“ Criminal cases come to court after a decision has been made by, usually the Crown

Prosecution Service, to prosecute someone for an alleged crime. In the vast majority of cases (over 95 per cent), magistrates hear the evidence and, as a panel, make a decision on guilt or innocence. For more serious cases a district judge (Magistrates' Court) or a circuit judge in the Crown Court will hear the evidence, and in the case of the latter, this will involve a jury trial. Very serious criminal cases, such as murder and rape, may be heard by a High Court judge.” http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-indetail/jurisdictions/civil-jurisdiction http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-indetail/jurisdictions/criminal-jurisdiction


Trial Courts and Appeal Courts

(i) Civil Courts

On the civil side, the work of the County Courts involves dealing with civil disputes such as personal injury cases, claims for damages and injunctions; possession proceedings against mortgage borrowers and property tenants, and claims for reasonable provision out of the estates of deceased persons.

The county court’s jurisdiction is first instance- but it does have some limited powers to hear appeals from local authorities in areas of housing law.

The High Court

The High Court is split into three divisions

“The Queen's Bench Division of the High Court deal with actions relating to various different types of tort. These include:

Wrongs against the person e.g. defamation of character and libel

Wrongs against property e.g. trespass

• Wrongs which may be against people or property - e.g. negligence or nuisance.

They also deal with matters that involve both contract and tort, such as personal injury cases which show negligence and breach of a contractual duty of care.

The QBD can hear appeals from the Magistrates court and from the Crown Court operating in its appellate capacity. This form of appeal is known as appeal by way of case stated and is somewhat limited.

The QBD also has a supervisory jurisdiction over cases from the Magistrates Court and the Crown Court acting in its appellate capacity. When the QBD is exercising its supervisory jurisdiction it is not, strictly, acting as an appeal court. It is performing a different operation called judicial review.

The principal business of the Chancery Division is corporate and personal insolvency disputes, business, trade and industry disputes, the enforcement of mortgages, intellectual property matters, copyright and patents, disputes relating to trust property and contentious probate actions.

The Chancery Division has a very limited jurisdiction to hear appeals from the county court.

The Family division deals with matters such as divorce and custody of children.

The Civil Division of the Court of Appeal hears appeals from:

The three divisions of the High Court (Chancery, Queen's Bench and Family Division)

From the County Courts across England and Wales,

• From certain Tribunals such as the Employment Appeal Tribunal, the Immigration

Appeal Tribunal, the Lands Tribunal and the Social Security Commissioners. http://www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal

(ii) Criminal Courts

“Magistrates' courts are a key part of the criminal justice system and 97% of cases are completed there. In addition magistrates' courts deal with many civil cases e.g. antisocial behaviour, public health and are responsible for the enforcement of fines and community punishments. Where cases required a penalty greater than magistrates’ sentencing powers, cases will be sent to the Crown Court.” http://www.justice.gov.uk/about/hmcts/courts

The Magistrates Court does have jurisdiction over limited categories of civil mattes which reflects the historical powers that magistrates used to have over certain areas of civic life. The Magistrates’ limited appellate jurisdiction over civil matters can be accounted for in similar terms.

The Crown Court

The Crown Court deals with more serious criminal cases such as murder, rape or robbery, some of which are on appeal or referred from magistrates' courts. Trials are heard by a Judge and a 12 person jury. Members of the public are selected for jury service or may have to go to court as witnesses. Crown Court cases originate from magistrates' courts.

The Crown Court also hears appeals against decisions of magistrate's courts – in particular relating to matters of sentence or conviction. http://www.justice.gov.uk/about/hmcts/courts

The Crown court has a limited jurisdiction over civil matters and this includes a limited power to hear appeals from the magistrates on civil matters.

The Court of Appeal

The Criminal Division hears appeals from the Crown Court.

(iii) “The Supreme Court: is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland hears appeals on arguable points of law of general public importance concentrates on cases of the greatest public and constitutional importance

The Supreme Court hears appeals from the following courts in each jurisdiction:

England and Wales

• The Court of Appeal, Civil Division

The Court of Appeal, Criminal Division

(in limited criminal cases) the High Court.”

• ‘leapfrog’ appeals from the High Court that by pass the Court of Appeal

The Judicial Committee of the Privy Council – hears civil and criminal appeals from

Commonwealth countries and also has an appellate jurisdiction over a range of professional disciplinary proceedings, Church matters and matters relating to devolution. http://www.supremecourt.gov.uk/about/role-of-the-supreme-court.html

(iv) The European Court of Justice

The ECJ is the highest court in the EU, outranking national supreme courts.

The Court of Justice interprets EU law to make sure it is applied in the same way in all

EU countries. It also settles legal disputes between EU governments and EU institutions.

Individuals, companies or organisations can also bring cases before the Court if they feel their rights have been infringed by an EU institution. http://www.civitas.org.uk/eufacts/FSINST/IN5.htm

Preliminary Ruling Procedure

“The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. But there is a risk that courts in different countries might interpret EU law in different ways.

To prevent this happening, there is a ‘preliminary ruling procedure’. If a national court is in doubt about the interpretation or validity of an EU law, it may – and sometimes must – ask the Court of Justice for advice. This advice is called a ‘preliminary ruling’.”

Actions for failure to act

The Treaty requires Parliament, the Council and the Commission to make certain decisions under certain circumstances. If they fail to do so, member countries, other

Community institutions and (under certain conditions) individuals or companies can lodge a complaint with the Court so as to have this failure to act officially recorded.

Proceedings for failure to fulfil an obligation

The Commission can start these proceedings if it believes that a member country is failing to fulfil its obligations under EU law. These proceedings may also be started by another EU country.

Direct actions

Any person or company who has suffered damage as a result of the action or inaction of the Community or its staff can bring an action seeking compensation before the General

Court. http://europa.eu/about-eu/institutions-bodies/court-justice/#case1

(v) The European Court of Human Rights

The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly. http://www.echr.coe.int/Documents/Court_in_brief_ENG.pdf


The Hierarchy of the Courts and the Doctrine of Precedent

Magistrates’ Courts and County Courts

These courts are bound by decisions of the High Court, the Court of Appeal and the

Supreme Court. Magistrates’ and County Courts are not bound by their own decisions, neither do they bind any other court, although they are expected to exercise consistent decision-making.

The Crown Court

This court is bound by decisions of the Court of Appeal and the House of

Lords/Supreme Court. Its decisions – at least those reported as of interest – are generally regarded as persuasive and worthy of being used in argument, particularly those made by High Court judges sitting in the Crown Court.

The High Court

The decisions of this court are binding upon all inferior courts, but not upon other High

Court judges, although in practice they rarely go against each other’s decisions. High

Court decisions are not binding upon the Divisional Court (civil or criminal), where two or more High Court judges sit together. All Court of Appeal and House of

Lords/Supreme Court decisions are binding upon the High Court.

The Divisional Courts of the High Court

The decisions of the Divisional Courts of the High Court are binding upon High Court judges sitting alone and also the inferior courts, except the Employment Appeal

Tribunal. The Divisional Courts are bound by the Court of Appeal and the Supreme

Court and also by its own decisions.

The Court of Appeal (Civil Division)

Generally, its decisions are binding upon the Divisional Courts of the High Court, individual High Court judges and the inferior courts, including the Employment Appeal

Tribunal. It must follow decisions of the House of Lords/Supreme Court

The Court of Appeal (Criminal Division)

This appellate court is bound by House of Lords/Supreme Court decisions and is generally bound by its own decisions, but not so rigidly as in the Civil Division, since the liberty of the appellant is often at stake.

The House of Lords

Between 1966 and 2009 (when it was replaced by the Supreme Court), the House of

Lords no longer needed to be bound by its own decisions, although it was stated in the

Practice Statement Judicial Procedure (1966) that this rule was to be used cautiously, especially in property and taxation matters and also the criminal law. Great weight is attached to statements made in the House of Lords even when they are said obiter . Any

House of Lords decision can be overridden by an Act of Parliament.

Precedents in other courts may be persuasive depending upon the status of the court, the reputation of the judge and the country in which it was established.


Tensions Between The House of Lords and the Court of Appeal: a) Can the Court of Appeal Depart from decisions of the House of Lords?

In Re United Railways of Havana [1961] A.C 1007.

Schorsch Meier G.m.b.H. v. Hennin[1975] Q.B. 416 cessante ratione legis cessat ipsa lex or “[s]eeing that the reasons no longer exist, we are at liberty to discard the rule itself.” Denning MR:

Miliangos v George Frank [1976] AC 443

Application of the principle cessante ratione legis cessat ipsa lex has ‘no place in our own modern constitution’. b) Can the Court of Appeal Depart from its previous decisions?

Young v Bristol Aeroplane Co., [1944] K.B. 718

The Court of Appeal (CA) is bound by its own decisions unless:

• it is a Court of Appeal decision given per incuriam

(i.e. with the omission of a very important component which subsequently flaws the decision)

• it involves an earlier conflicting decision by the

Court of Appeal, when the CA may then choose which case to follow

• the earlier Court of Appeal decision has been expressly or impliedly overruled by the Supreme


Davis v Johnson [1974] A.C.264.

“In order to avoid all the delay -- and the injustice consequent upon it -- it seems to me that this court, being convinced that the two previous decisions were wrong, should have the power to correct them and give these women the protection which Parliament intended they should have.” Lord Denning

Hutton v Bright (1852) 3 HL Case 341

“[E]very court of justice possesses an inherent power to correct an error in which it had fallen.”

“[A] rule as to precedent (which any court lays down for itself) is not a rule of law at all.

It is simply a practice or usage laid down by the court itself for its own guidance: and, as such, the successors of that court can alter that practice or amend it or set up other guide lines, just as the House of Lords did in 1966.” Lord Denning

Davis v Johnson House of Lords

Lord Diplock preferred that the House of Lords should “re-affirm expressly, unequivocally and unanimously” the rule in Bristol Aeroplane Co.



Common Law and Equity

Common law as distinct from statute

Common law as distinct from Equity

Common law as distinct from civil law

Common law and Civil law

“It is one of the great merits and advantages of the common law, that instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy.”

Chief Justice Shaw Norway Plains Co v Boston & Maine Railroad (1845, 1 Gray, at 263),

Common law and Equity

Key concept: Conscience.

“If land was given to A and A’s undertaking to hold the land to the use and benefit of B, it was unconscionable for A to keep it for his own benefit. B, however, had no legal claim to the land. The conveyance to A gave him whatever legal estate was conveyed, and, at common law, A could exercise all the rights which that estate gave him…B would have little protection at common law ( in C14th possible action because of breach of covenant under seal)…The Chancellor interfered to compel A to hold the land for the exclusive use and benefit of B. The Chancellor could not say that B was the owner; A was. But all the beneficial interest in the land could be given to B by compelling A to keep the legal title only, and to give all the benefit of the land to B…” (Graham Moffat, Trusts Law, 9)

The Supreme Court of Judicature Act 1873 (36 & 37 Vict c. 66) and the Supreme Court of

Judicature Act 1875 (38 & 39 Vict c. 77), (and subsequent Acts)

The contemporary relationship of equity and the common law

“.....the streams of common law and equity have flown together and combined so as to be indistinguishable the one from the other. We have no longer to ask ourselves: what would the courts of common law or the courts of equity have done before the Judicature

Act? We have to ask ourselves: what should we do now so as to ensure fair dealing between the parties?”

Lord Denning, Federal Commerce & Navigation Co Ltd v Molena Alpha Inc [1978] 3 All

E.R. 1066

“My first concern with proceeding by analogy with tort is that it overlooks the unique foundation and goals of equity. The basis of the fiduciary obligation and the rationale for equitable compensation are distinct from the tort of negligence and contract. In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently the law seeks a balance between enforcing obligations by awarding compensation and preserving optimum freedom for those involved in the relationship in question, communal or otherwise. The essence of a fiduciary relationship, by contrast, is that one party pledges herself to act in the best interest of the other. The fiduciary relationship has trust, not self-interest, at its core, and when breach occurs, the balance favours the person wronged. The freedom of fiduciary is diminished by the nature of the obligation he or she has undertaken -- an obligation which "betokens loyalty, good faith and avoidance of a conflict of duty and self-interest": Canadian Aero Service Ltd. v. O'Malley , [1974] S.C.R. 592 at 606. In short, equity is concerned, not only to compensate the plaintiff, but to enforce the trust which is at its heart. McLachlin, J. (dissenting)

Canson Enterprises Ltd. v. Boughton & Co, (1991) 85 D.L.R. (4th) 129.

“In Australia, equitable standards are seen as converging with those of common law concepts of “fairness” and “flexible standards of reasonableness”. In Hawkins v Clayton

(1988) 164 CLR 539, Deane J criticised arbitrary division in the law of obligations, and asserted that the law should form a “coherent whole”—and, as Getzler adds, this

“rationalisation” has been achieved by the High Court using equitable principles- not as

“discretionary justice”- preferring a “principled, rule bound equity.” La Forest, J

“Equity and common law are converging and will continue to converge so that the differences in origin of particular principles should become of decreasing importance….

The underlying values of equity centred on good conscience will almost certainly continue to be a driving force in the shaping of the law unless the underlying values and expectations of society undergo a fairly radical alteration. If the present trend continues, the element of uncertainty which is associated with the greater emphasis on good conscience will be dissipated by an increase in the number of decisions on a wide range of fact situations. Because the concepts employed are not susceptible of sharp definition, there is the risk of some erosion in the apparent distinctions which have been maintained hitherto between equitable concepts such as "unconscionable" and

"inequitable" and common law concepts such as "unfair" and "unreasonable." But it is important that we continue to adhere to the traditional concept of unconscionability as denoting conduct which involves one person unconscientiously taking advantage of another's special vulnerability or disadvantage in a way that is both unreasonable and oppressive. The recent decade might be regarded as a period of legal transition in which we have been moving from an era of strict law to one which gives greater

emphasis to equity and natural law. As Roscoe Pound said in The Spirit of the Common

Law, the endeavour to make morals and law coincide will be an important future goal.”

Anthony Mason, Law Quarterly Review 1994: The Place of Equity and Equitable Remedies in the

Contemporary Common Law world.

What does it mean to suggest that Equity is a supplement to the common law or mitigates the rigours of the common law?

Lloyd’s Bank v Rosset [1991] 1 AC 107.

HELD In resolving a dispute between two persons who had shared a home in circumstances where one party was entitled to the legal estate and the other party claimed to be entitled to a beneficial interest... the fundamental question which had to be resolved was whether, on the basis of evidence of express discussions between the partners and independently of any inference to be drawn from their conduct in the course of sharing the property and managing their joint affairs, there had been at any time prior to the acquisition of the property, or exceptionally at some later date, any agreement, arrangement or understanding reached between them that the property was to be shared beneficially coupled with detrimental action or alteration of position on the part of the person claiming the beneficial interest or, failing that, whether there had been direct contributions to the purchase price by the person claiming the beneficial interest from which a constructive trust could be inferred.