1.1. Civil courts

  • Disputes between private citizens are resolved in a civil court.
  • These disputes may involve breaches of contract, liability for harm caused by a tort, property disputes, disputes following marital breakdown or the wrongful exercise of power by some public authority.
  • In such cases one party is seeking to obtain from the court some private remedy against the other such as damages and/or an injunction.
  • The Claimant brings the case. The Defendant defends the case.
  • The Claimant must prove his/her case on ‘the balance of probabilities’
  • Civil courts comprise OF
  1. County courts. An action must be commenced here if the value of claim is under £15,00 or in personal injury cases under £50,000
  2. High court. The High Court has an unlimited jurisdiction.

1.2. Criminal courts

  • These courts hear try individuals that have been accused of breaking the criminal law.
  • The prosecution brings a case in the name of the Crown. EG  R v Smith
  • The prosecution must prove the case beyond reasonable doubt.
  • The sanctions are imprisonment, fines and community orders.
  • Criminal courts comprise of
  1. Magistrates courts
  2. Crown courts

1.3. Specialist courts

  • The Technology and Construction court (TCC) specialising in hearing disputes in the construction industry.
  • It has specialist judges
  • It has the status of a High Court

1.4. The High Court of Justice

  • The High Court of Justice comprises of three divisions: the Chancery Division, the Queen’s Bench Division and the Family Division.
  • The High Court is principally a civil court. It does, however, exercise some important criminal jurisdiction. Its civil jurisdiction is virtually unlimited.
  • The High Court is bound by the Court of Appeal and the House of Lords but is not bound by other High Court decisions. However, they are of strong persuasive authority in the High Court and are usually followed.
  • Decisions of individual High Court judges are binding on the county courts.

1.5. Appeal Courts

1.5.1. European court of Justice

  • Under s3(1) of the European Communities Act 1972, decisions of the ECJ are binding, in matters of Community law, on all English courts.

1.5.2. European court of Human Rights

  • The European Court of Human Rights (ECHR) is the international court set up to interpret and apply the European Convention of Human Rights
  • Since 1966 people have had the right to bring cases against the British Government in the ECHR
  • The Human Rights Act 1998 (HRA) is ‘an Act to give greater effect to rights and freedoms guaranteed under the European Convention on Human Rights’
  • If the UK wants to have ultimate power over all its laws again, it would need to break from Europe.
  • This is a legal possibility, but politically very unlikely.

1.5.3. House of Lords

  • The highest court in the United Kingdom, in matters other than those involving European Community statutes is the House of Lords
  • Its judicial decisions can be overruled only by
  1. statute
  2. or by the House of Lords refusing to follow a House of Lords judgment in later cases.
  • It will treat its decisions as normally binding but will depart from these decisions when it appears right to do so.
    • This is rare. In Anns v Merton London Borough Council [1978] AC 728 The Anns bought a lease of a maisonnete. The foundations were defective and caused damage to the maisonette. They claimed that the damage was attributable to the fact that the block had been built on inadequate foundations. They claimed damages against Merton LBC for negligence caused by their surveyors in approving the foundations for the loss in value of the property.
    • This case and subsequent cases permitted claims in the tort of negligence for pure financial loss; that is, they permitted the claimant to recover the amount by which the building was devalued due to defects.
    • Before this case damages could only be awarded to compensate for financial losses caused by personal injury or physical damage to property due to the negligence of another.
    • In Murphy v Brentwood Murphy purchased a house also in which the foundations were defective. They also claimed damages from Brentwood LBC for because their building control staff who had approved the designs for the foundations.
    • The House of Lords overruled Anns v Merton because the decision caused much uncertainty in the law and expanded the category of liability beyond what had been intended by parliament. The view was that it was not for the court to expand categories of liability under the law of negligence but that this was the role of parliament.
  • The House of Lords is the final appeal court for England and Wales and Northern Ireland in both civil and criminal cases, and for Scotland in civil cases only.
  • Every appeal to the House of Lords must be heard by at least 3 law lords but usually 5 of them form a court.
  • Each judge may deliver his own separate judgment, which in the House of Lords is called a ‘speech’ or ‘opinion’.
  • The appeal hearing is not a retrial. No oral evidence is given. The judges read the documents in the case and listen to the barrister’s submissions.
  • The majority decision prevails.
  • This will become a binding precedent.
  • Judges who do not agree with the majority are said to give a ‘dissenting’ opinion which can be persuasive authority.
  • If there are an even number of judges hearing the appeal and the House of Lords is equally divided, the appeal is dismissed.

The House of Lords and the European Courts

  • The House of Lords may refer points involving European Union law to the European Court of Justice
  • The House of Lords may also declare a law inconsistent with the European Convention of Human Rights pursuant to section 4 of the Human Rights Act 1988
  • Whilst this power is shared with the Court of Appeal and the High Court, such declarations are considered so important that the question will almost inevitably be determined in the House of Lords on appeal.
  • However, the challenged law in question is not automatically struck down; it remains up to Parliament to amend the law.
    • In Attorney-General v Guardian Newspapers Ltd [1987] 3 All ER the House of Lords gagged the press for a time from publishing extracts from a book called Spycatcher, the memoirs of a former member of the British security service, Peter Wright. The injunctions prevented even the publication of material disclosed in similar court proceedings then in progress in Australia. The injunctions were granted on security grounds and in spite of the fact that the book was openly on sale in the United States and that individual copies were obtainable in the United Kingdom.
  • The European Court of Human Rights decided that, although the granting

of the original Spycatcher interlocutory injunctions against The Guardian, The Observer and the Sunday Times before the date of publication of the book in the United States in July 1987 was justified, the continuation of those injunctions by the House of Lords beyond that date (at which time the confidentiality of the material they sought to protect was destroyed) was not ‘necessary in a democratic society’ and, accordingly, constituted a violation of art. 10 of the European Convention on Human Rights (Sunday Times v United Kingdom (No. 2) (1992) 14 EHRR 229, ECHR).

  • Lord Bridge gave a dissenting opinion. He stated (at pp. 346–7):

Freedom of speech is always the first casualty under a totalitarian regime. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road. If the government are determined to fight to maintain the ban to the end, they will face inevitable condemnation and humiliation by the European Court of Human Rights in Strasbourg. Long before that they will have been condemned at the bar of public opinion in the free world.

Reform

  • The Constitutional Reform Act 2005 passed by the provides for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords .

1.5.4. Court of Appeal

  • The Court of Appeal hears civil and criminal appeals.
  • Its judicial decisions are binding on all lower courts. The function of the appellate court in reviewing the trial judge’s decision is to treat the original decision with the utmost respect and to refrain from interference with it unless satisfied that it proceeded on some erroneous principle or was plainly and obviously wrong: George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd [1983] 2 A.C. 803, HL and Overseas Medical Supplies Ltd v. Orient Transport Services Ltd [1999] 2 Lloyd’s Rep. 273 applied.
  • The Court of Appeal is bound by the judicial decisions of the House of Lords even if it considers them to be wrong.
  • In Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal (civil division) held that it was bound by its own previous decisions subject to the following three exceptions:
  1. Where there are two conflicting decisions, the CA must decide which to follow and which to reject.
  2. Where a decision of its own has been impliedly overruled by the House of Lords.
  3. The previous decision was given per incuriam (by carelessness or mistake).
  • The jurisdiction of the Court of Appeal, civil division, is mainly to hear appeals in civil cases from all three divisions of the High Court (Queens bench, Chancery and Family) and from the county courts.
  • In practice, most appeals are heard by 3 judges sitting together.
  • The hearing of an appeal by the Court of Appeal is not a retrial. The appeal is determined by the judges after reading the documents in the case and hearing the barrister’s submissions.
  • In the civil division where the court consists of an uneven number of judges, the majority decision prevails. Each judge is entitled to deliver his own separate judgment.

1.6. Civil Procedure Rules

  • Most of the Civil Procedure Rules 1998 came into force on 26 April 1999.
  • They regulate practice and procedure in the civil division of the Court of Appeal, in the High Court, and in the county courts.
  • Cases are allocated under CPR, Part 26, by procedural judges to one of three tracks the small-claims track, the fast-track, or the multi-track taking into account a number of factors, including the financial value and the complexity of the claim.
  • The small-claims track is the normal track for:

(a) any claim for personal injuries which has a financial value of not more than £5,000 where the claim for damages for personal injuries is not more than £1,000;

(b) any claim which includes a claim by a tenant of residential premises against a landlord for repairs or other work to the premises where the estimated cost of the repairs or other work is not more than £1,000 and the financial value of any other claim for damages is not more than £1,000; and

(c) any other claim which has a financial value of not more than £5,000.

  • The fast-track is the normal track for any claim for which the small-claims track is not the normal track and which has a financial value of not more than £15,000.
  • The multi-track is the normal track for any claim for which the small-claims track or the fast-track is not the normal track.