About the Blogger

A young budding law student who embarked upon soul-searching journey. He has to fight through everyday to be a world class litigant since the first day he discovered his love for law. He has explored many things in life and yet still looking forward to learn and see more.

He had fought various battle before.  Some dubbed him to be the next-chuck-norris (exaggerated) and he doesn't like to be flattered by anyone.

He had made life changing decisions Since then, he never looked back and set sail towards his new goal. 

EQUITY

The word ‘equity’ has a meaning of ‘fairness’; this is the basis that it operates, when adding to our law.

The development of Equity

·         The law was very technical; if there was an error in the formalities the person making the claim would lose the case.

·         The only remedy the common law courts could give was ‘damages’

The operation of Equity

1.       Equitable Remedies

a.       Mareva Injunctions

·   A court order freezing the assets of the party to an action or stopping that party moving the assets out of the country.

·   Mareva v International Bulkcarriers (1975)

·   Application will be ex parte

o   One party applies without giving notice to the other side for if the other party did not have notice

b.      Anton Piller Orders

·   An order to a defendant to allow the plaintiff on the defendant’s premises to inspect, copy or remove documents or other objects relating to the plaintiff’s property.

·   Aim: to stop def. from destroying vital evidence

·   Contempt of court

·   Ex parte application

·   Anton Piller v Manufacturing Processes Ltd (1976)

·   Orders used for

o   Breach of copyright

o   Passing off

o   Matrimonial disputes

c.       Specific performance

·   An order of a court which requires a party to perform a specific act, usually what is stated in a contract.

·   Alternative awarding damages

·   Usually used to complete a previously established transaction

·   Protecting the expectation interest of the innocent party

d.      Rectification

·   The ct. will order that, where a mistake has accidentally been made in a document so that it is not a true version of what the parties agreed, that document should be altered to reflect the parties’ intention.

2.       Equitable Maxims

a.       Equity looks to the intention and not the form               

·   Berry v Berry (1929)

·   Equity decided that as the parties had intended to alter the deed, it would be fair to look at the intention rather than the fact they got the formalities wrong.

b.      He who comes to equity must come with clean hands

·   D&C Builders Ltd v Rees (1965)

·   An equitable remedy will not be granted to a plaintiff who has not acted fairly.

c.       Delay defeats equity

·   Leaf v International Galleries (1950)

·   A plaintiff must not wait too long before making a claim as this might lead to unfairness to the other party

Delegated Legislation

 DL is law made by some person or body to whom Parliament has delegated its general law making power.

·         A validly enacted piece of delegated legislation has the same legal force and effect as an Act of Parliament.

·         DL = subordinate law / secondary law in the form of statutory instruments

Types of DL

1.       Orders in Council

a.       The Queen and the Privy Council have the authority to make OiC.

b.      PC: Prime Minister and other leading members of the Government

c.       PC has power to make law in emergency situations.

d.      OiC was used to alter the Misuse of Drugs Act 1971 so as to make a cannabis Class C drug.

                                 i.      Five years later, Gov decide-mistake-downgrade cannabis.

                                ii.      Another OiC was issued to change back to Class B

e.      Another enabling act: Constitutional Reform Act 2005

                                 i.      Allow PC to alter the number of judges in the Supreme Court.

2.       Statutory Instrument

a.       Refers to the rules and regulations made by Government Ministers

b.      Approximately 3000 SIs’ are issued every year

c.       Two thirds not actively decided by Plm; become law on  a specified date

d.      Normally drafted by the legal office of the relevant government department.

e.      Consultations of take place with interested bodies and parties.

f.        E.G: Southern Rhodesia Act 1965

3.       Bye-laws

a.       These are means through which local authorities and other public bodies can make legally binding rules.

b.      By-laws can also be made by public corporations and certain companies within their jurisdiction which involve the public.

Reasons why there is a need for/benefits of/advantages of DL

1.       Pressure upon Parliamentary time

a.       Plm does not have time to consider and debate every small detail of complex

2.       Technicality of subject-matter

a.       Plm may not have necessary technical expertise/knowledge required; e.g health and safety regulations,

3.       State of emergency

a.       Process of passing an Act of Plm takes a considerable time;

b.      In emergency, Plm may not be able to pass law quickly,

c.       DL is preferred because it can be amended or revoked easily when necessary.

Drawbacks/ Criticism/ Disadvantages of DL

1.       Undemocratic

o   It takes law making away from  democratically elected HoC

o   Allows non-elected people to make law

2.       Risk of sub-delegation

o   Law making authority is handed down to another level

o   Comments that much of our law is made by civil servants and merely ‘rubber stamped’ by Gov Ministers.

3.       Large volume

o   Difficult for citizens to discover what the present law is

4.       Lack of publicity

o   Much DL is made in private contrast to public debates of Plm

5.       Obscure wording

o   Words used in DL leads to difficulty in understanding and to interpret the law

Control over DL

1.       By Parliament

a.       Affirmative/ negative resolutions

                                               i.      Affirmative:

·         small number of SI will be subject to an affirmative resolution

·         Means: the SI will not become law unless specifically approved by Plm.

·         It cannot be amended by Plm; but can only be approved, annulled or withdrawn

                                              ii.      Negative

·         Most other SI subject to negative resolutions

·         Means: the relevant SI will be law unless rejected by Plm within 40 days.

b.      Scrutiny Committee

                                               i.      Reviews all SI and where necessary will draw attention of both House of Parliament to point that need further consideration

                                              ii.      Reviews are technical based

                                            iii.      SC has no power to alter any SI

2.       By the courts

a.       Judicial review

                                               i.      The judge will decide whether the DL is lawful or unlawful through judicial review

b.      Doctrine of ultra vires[it goes beyond the powers that Plm granted in the enabling act]

                                               i.      Can be challenged in Ct. On the ground that it is UV.

                                              ii.      Any DL which is rule to be ultra vires is void and not effective.

ALTERNATE DISPUTE RESOLUTION

Civil Court Structure & Alternative Dispute Resolution

·         Role of Courts?

o   Interpret and apply the law, adjudicate and settle legal dispute

o   Independent of the Executive

·         Definition of Courts?

o   Formal structure for adjudication in settling legal disputes

Individual Ct jurisdiction?

Mag. Ct

·         Wide & varied jurisdiction

·         98% criminal prosecutions

·         Extensive involvement of lay people as judges

County Ct. (less value)

·         Debt collection

·         Contract, tort and property matters

·         Limit - £25k

·         Limited jurisdiction financially and geographically areas of jurisdiction

Crown Ct.

·         More serious criminal offence (indictable and triable either way offence)

·         Judge & jury

High Ct.

·         Chancery Division-equity, trust, wills and bankruptcy

·         QBD- personal injury, contract, tort

·         More than £25k

·         Family Division – divorce, children

CoA R v James & Karimi (2006)

·         Civil Division

·         Criminal Division

Supreme Ct. (since Oct 2009)

·         Highest appellate Ct in UK

Privy Council

·         Commonwealth Ct

o   Deals mainly with doctrine of precedent from other commonwealth countries

o   Not binding in UK

European Ct.

·         ECJ

o   Applications from other member states, request for opinions on international law

·         ECtHR

o   Human rights issue against UK

General weakness of Ct

®     Costly

o   Lawyer’s fees

o   Ct fees

o   Time

o   resources

®     Delayed

®     Complex of formal procedures

®     Congestion

o   Civil cases

o   County

o   Inadequate resources

o   Inadequate employment

®     Judges

o   Not expert knowledge in all fields

o   Call for expert witness- paid by the parties themselves

General strengths of Ct

®     Impartiality / neutrality

®     Quality – analysed in depth

o   Thorough – witness being examined/ truth comes out/ cross examination

®     Effective enforcement of orders/ Finality

®     Public matter

Different modes of dispute resolution

1.       Negotiation ( Informal) – settlement is in effect some mutually acceptable resolution based on the assessed strength of the parties

2.       Adjudication (Formal) where a binding decision is given by a 3^rd party (court) with a degree of authority and has power to enforce it.

Alternative Dispute Resolution (ADR)

®     Helps, supplements, compliments the court structure

®     Courts over burden with workload/ caseload

®     Under resourced

®     Alternative body

a)      Arbitration

·         Work in accordance with terms set by parties

·         Impartial and expert

·         Usually used for commercial disputes, business disputes

·         Controlled by Arbitration Act

b)      Tribunals

·         Body of Non-Judges- determine dispute in a judicial manner

·         ‘Specialist’, ‘Inferior Ct’

·         Composition: 3 members

·         Controls: many ways; by the Plm- Tribunal & Enquiries Act 1992

·         High Ct: QBD via Judicial Review- can appeal on points of law

·         Council on tribunal- review & investigate complaints etc

c)       Mediation

·         Mediator facilitate, suggest solutions, do not impose orders

·         Least formal method/ most informal method

·         Voluntariness

d)      Conciliation

·         Method btwn arbitration and mediation

·         Parties encouraged to discuss their differences

·         Not formal as tribunal/ Not as informal as mediation

e)      Ombudsman

·         Investigate complaints of maladministration with regards to govt department

·         Citizens channel complaints through MP

·         Early neutral evaluation done by a lawyer and make a choice of going through a formal / informal

Strengths of ADR

®     Privacy

®     Informality/ Practical/ Flexibility

®     Speed

®     Lower cost

®     Expertise

®     Accessibility

Weaknesses of ADR

®     No publicity

®     Inconsistent procedures/ No standard rules applicable

®     Second-hand justice-quality of justice

®     Biasness- not public figures

®     Lack of enforcement- not court order- parties can disregard

ACTS OF PARLIAMENT

·    Judicial law-making through precedents is not suitable for major changes

·    Not sufficiently quick/law-making method

·    Judges not democratically elected

·    Laws should only be made by elected representatives of Plm

·    Main legislative body in UK is Plm.

·    Laws passed by Plm is known as Acts of Parliament or statutes

·    60 – 70 Acts passed each year

Parliament

1.  House of Commons

a. Member of HoC referred as Members of Parliament.

b.  MP are elected by the public through  general election every five years

2.  House of Lords

a.  Begining 2010;

              i.      92 hereditary peers

             ii.      The most senior bishops in the Church of England

b. People who had served their country

c.  Most life peerages were given to the former politician

               i.     E.g Margaret Thatcher

Pre-Legislative Process

·    Green Paper:              Consultation document on possible new law

·    White Paper: Government’s firm proposals for new law

Bills

·    When the proposed Act has been drafted it is published, and at this stage it is called a Bill.

1. Public Bill
2. Private Bill
3. Hybrid Bill
4. Private Member Bill

Public Bill

·   Bill is given 3 reading in HoC and HoL before it can be presented for Royal Assent.

1ST Reading(table the bill and set the date)

2ND Reading (general principles of bill extensively debated)

Committee Stage (Bill is passed to a Standing Committee who considers the Bill in detail. Committee has the power to amend.)

Report Stage (The above committee reports the Bill back to the house for consideration for any amendments)

3RD Reading (Further debate but restricted to matters relating to the content of the Bill only)

Same procedure in HoL (Bill is passed back to HoC to consider the amendments suggested)

3RD Reading (Further debate but restricted to matters relating to the content of the Bill only)

Royal Assent (The Bill is sent to the Queen to receive the approval. Once, this is done the Bill is known as an Act of Parliament)

 

















 

Private Bill

·   Any person whose interests are specifically affected by a bill, normally in relation to property or business interest, my lodge a petition against the Bill in accordance with the procedure set out in Standing Orders.

·   Process is similar after this process of consultation.

Hybrid Bill

·   Bills which are public but affect private interests.

·   These Bills are sent to the Public Bills office. If the office considers the Bill should be examined by the office of private bill, it will be sent there, where 2 examiners of private Bills will examine it and subject to the remaining parliamentary procedure.

Private Member Bill

3 ways in which a private member can introduce a Bill during Parliamentary sessions:

    i.       Ballot procedure where 20 back-bench members get the right to propose legislation on Fridays;

   ii.       Standing Order 39 permits any member to present a Bill after 20 balloted bills have been presented;

 iii.       Standing Rule 13; 10-minute rule procedure, which allows a member to make a speech up to 10-minutes introducing the Bill.

Disadvantages/Criticisms of Legislative Process

The Renton Committee said there were four main categories of complaint:

1)      The language used in many Acts was obscure and complex

2)      Acts were ‘over-elaborate’ because draftsmen tried to provide for every contingency.

3)      The internal structure of many Acts was illogical with sections appearing to be out of sequence, making it difficult for people to find relevant sections.

4)      There was a lack of clear connection between Acts, so that it was not easy to trace all the Acts on a given topic. In addition, the frequent practice of amending small parts of one Act by passing another increased the difficulty of finding out what the law was.

Parliament Sovereignty

·    Parliamentary law is sovereign over other forms of law in England and Wales.

·    An Act of Plm can completely overrule any custom, judicial precedent, delegated legislation or previous Act of Plm

·    This is also referred to as Plm Supremacy

Definition of Parliamentary Sovereignty

1. Plm can legislate on any subject matter
2. No Plm can be bound by any previous Plm, nor can a Plm pass any act that will bind a later Plm
3. No other body has the right to override a or set aside an Act of Plm

Legislating on any subject matter

®     No limit on what Plm can make laws about..

®      Plm can also change its own powers.

  

Cannot bind successor

®     Each new Plm should be free to make or change what laws it wishes.

®     Plm not bound by a law made by a previous Plm.

Cannot be overruled by others

®     This rule is kept to even if the Act of Plm may have been assed because of incorrect information.

®     A challenge cannot be made to an Act of Parliament if there was fraud.

Limitations on Parliamentary Sovereignty

·         Memberships of the European Union

o Membership of the EU means that EU laws take priority over English law where the English law was passed after the relevant EU law.

o E.g Merchant Shipping Act 1988

·         Human Rights Act 1998

o   This states that all Act of Plm have to be compatible with the European Convention on Human Rights.

o   It is possible to challenge an Act on the ground that it does not comply with the convention.

o   S 4 Human Rights Act 1998; court has the power to declare an Act to be incompatible with the Convention.

o   However, a declaration of incompatibility does not mean that the Gov has to change the law.

o   If Plm wishes it can pass a new Act which contravenes the ECHR.