Introduction to English Law system

I N T R O D U C T I O N
T O E N G L I S H L AW
S Y S T E M
14/05/2020
Yousra Chaaban-TA Faculty of Law-Ain Shams University-Doctorante à L'université Jean Moulin Lyon 3-Associée à
L'institut Édouard Lambert et l'IAO, ENS
1

YOUSRA CHAABAN
• Yousra CHAABAN Maître assistante à la
Faculté de Droit-Ain Shams-Le Caire
• Doctorante de droit privé et comparé à
l'Université Jean Moulin Lyon 3
• Membre associée à l'IAO (ENS de Lyon)
• Membre de l'EDIEC et l'institut Édouard
Lambert
• https://iao.cnrs.fr/membres/doctorants/yousr
a-chaaban/
• http://idcel.univ-
lyon3.fr/de/forschung/wissenschatliches-
team/
• Contact:
y.chaaban@law.asu.edu.eg
yousra.chaaban@hotmail.com
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POINTS
DISCUSSED IN
THIS
PRESENTATION
Brief about comparative law systems
Common Law vs civil Law system
About… history of English Law system
Precision :The Geographical Reach of the
English Law
Sources of the English Law system
The English courts and jurisdictions
Main features of the English Law system
(equity and precedents)
14/05/2020
L'institut Édouard Lambert et l'IAO, ENS 3

BRIEF ABOUT
COMPARATIVE LAW
SYSTEM
• The English Law is a
common law system
• Refer to my presentation
about « introduction to
comparative law for
beginners ».https://www.slide
share.net/YousraChaaban/int
roduction-to-comparative-
law-for-beginners
14/05/2020 Yousra Chaaban-TA Faculty of Law-Ain Shams University-Doctorante à L'université Jean Moulin Lyon 3-Associée à

THE ENGLISH LAW
BEYOND THE UK
• English law historically has had a wide
geographic reach, a feature that emanates
from the days of the British Empire,
which stretched from the Antipodes
(Australia, New Zealand, Oceania)
through the Far East (Singapore,
Malaysia, Hong Kong), to India,
Pakistan, British colonies in South
and East Africa, the Caribbean, and
Canada. US law is, of course,
grounded on English common law
principles.
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COMMON LAW VS CIVIL LAW SYSTEM
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Common Law Civil Law
• Less restricted by written or codified
law but Parliament is always
sovereign.
• Legislation or codes constitute the
primary source of law
• Judges have greater authority to
interpret law but are subject to the
Doctrine of Precedent.
• Judges have a limited role in the
interpretation of law.
• Adversarial system • Inquisitorial system

ABOUT… HISTORY
OF ENGLISH LAW
SYSTEM
• The common law started
developing after the Norman
conquest in 1066 (Battle of
hastings). Before that, local
unwritten customs determined
most laws originally. But the
problem of customs was the lack of
unity.
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• Unlike continental civil law, the
English system does not originate
from any particular set of texts but
from what has been called ‘tradition
expressed in action’. It began as
customary law used in the King's
court to settle disputes and
conflicts which affected the
monarch directly.
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• In 1154, Henry II institutionalised common law by creating a unified
court system ‘common’ to the country through incorporating and
elevating local custom to the national level, ending local control,
eliminating arbitrary remedies, and reinstating a jury system of
citizens sworn on oath to investigate criminal accusations and civil
claims.
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• In the expansion of the King's legal powers, an important role
was played by the clerics. They developed a range of claim
forms, called writs, and established procedures which, perhaps
significantly, gave them greater importance and provided them
with a generous income! (become later the common law
courts).
• Another important development: was the expansion of the
‘King's Peace’ or king’s bench.This was the monarch's, as
opposed to a local lord's, right to deal with any local
disorder or crime (begining of the idea of equity-see
below).
• See also: (Supreme Court of Judicature Act 1873).
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PRECISION :
THE
GEOGRAPHICAL
REACH OF THE
ENGLISH LAW
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The full name of
this country is
the United
Kingdom of
Great Britain
and Northern
Ireland (UK).
The UK has four
principal
constituent
parts: England,
Scotland,Wales,
and Northern
Ireland.
Scotland and
Northern
Ireland are
particularly
distinct from
England and
Wales
So: the United
Kingdom has
three legal
systems.

WALES
• Wales was essentially
annexed into England
by the Wales Act 1535,
so it such does not
have a separate legal
system.
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SCOTLAND
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Scotland: merged with England and Wales in 1707, in order to
create, the United Kingdom of Great Britain (Acts of Union 1707).
Title 19 of that Act of Union preserved to Scotland a separate
legal system.
NB: the legal system of Scotland is mixed: it contains elements of
both common law and civil law systems.

NORTHERN
IRELAND
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A hostile relationship with
the rest of the UK since
history
The Anglo-Irish Treaty
(1922), divided the 32
counties of Ireland into two
separate parts: 26 counties
became the Irish Free State
and the Northern Ireland.
Northern Ireland is formed
of 6 counties :Antrim,
Armagh, Fermanagh,Tyrone,
Down, and
Derry/Londonderry.
In 1937, the Irish Free State
took its indenpendance.
In 1973 Northen Ireland
adopted a new constitution
that confirms that North
Ireland is under the direct
rule of Westminster.
The Good Friday Agreement
1998: = the establishment of
the Northern Ireland
Assembly which has
legislative competence in
certain devolved areas.

SOURCES OF THE ENGLISH LAW
SYSTEM
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Legislation
Common law (precedents, case law)
Europaean law

1/LEGISLATION
• Legislation is created by the Parliament.
• This later is Bicameral =The UK Parliament has
two Houses.
• The House of Commons (650 elected MPs), the
House of Lords (826 unelected members) and for
sure : the monarch ( ceremonial role+ sign every
new law).
• Both: the House of Commons and the House of
Lords share the job of making laws.
• Ideas for new laws are called bills: (see
parliamentary ping pong).
Once the two houses agree, then it's the monarch's
turn. It's their job to formally agree the bill.This
makes it an act of Parliament.And only then is it a
law.
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PARLIAMENTARY
SOVEREIGNTY
• Parliamentary Sovereignty
means Parliament can
enact, revoke or alter any law
it sees fit.
• NB: Acts apply in all four
countries of the UK – see
later slides.
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2/COMMON LAW
• Law that has evolved through court
cases over the past 800 years.
• Doctrine of precedent, or stare
decisis, lies at the heart of this
system (see main features below).
• NB: However, much of our law is
actually statutory!
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3/EUROPEAN LAW
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United Kingdom joined the
European Community in
1973.
European Union law was
incorporated into domestic
law by the European
Communities Act 1972
Brexit: In 2016, 52% of the
population voted to leave the
EU (see Article 50 of Lisbon
treaty that introduced for the
first time a procedure for a
member state to withdraw
voluntarily from the EU).
The treaties are the primary
source of European law (v. the
Treaty of Rome 1957, Maastricht
Treaty 1992; and the Lisbon
Treaty of 2009.

THE ENGLISH COURTS AND
JURISDICTIONS
14/05/2020
Yousra Chaaban-TA Faculty of Law-Ain Shams University-
Doctorante à L'université Jean Moulin Lyon 3-Associée à
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SOME
VOCABULARY
– Claimant v Defendant (Civil) = County courts
– Appellant v Respondent= Court of Appeal (civil
division)
– The trial may be summary or by indictment
Summary offences are matters that are tried by a
judge alone. If it does not, then the offence is
an indictable offence. Indictable
offences. Indictable offences require a trial by
judge and jury.
– Appeal a sentence or conviction =/= (is not)
Appeals against conviction on a question of
law.
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CRIMINAL CASES
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All criminal cases will start in the magistrates’ court.
The more serious criminal matters are committed (or sent) to the
Crown Court.
Appeals from the Crown Court will go to the High Court.
and potentially to the Court of Appeal (criminal division) or even
the Supreme Court.

MAGISTRATES’ COURT
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Magistrates’ court: are local courts.
There are three types of cases that can be heard in the Magistrates’: summary
matters, indictable matters and those can be tried either summarily or on
indictment.
Trials take place in front of either a bench of lay justices or a District judge.

CROWN COURT
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The Crown Court has both original and appellate jurisdiction (it can hear
trials and certain appeals).
The judge in the Crown Court will regularly sit with a jury for trials.The
judge advises the jury as to the law and the jury decide questions of fact.
Only defendants can appeal to the Crown Court.
(Ancienne cour d’assises).

APPEAL FOR CRIMINAL CASES
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There is no automatic
right of appeal, instead
permission must be
granted by the Court
of Appeal.
Only the defendant
can appeal against
conviction.

APPEAL FOR CRIMINAL CASES
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Where it is a summary case, appeals on sentence or conviction on fact
go to the Crown Court.Appeals against conviction on a question of law
will go to the Divisional Court (High Court).
NB: If the summary trial was appealed in the Crown Court, there is a further
appeal on a point of law to the High Court.
Where the case was by indictment, The Court of Appeal (Criminal
Division) will hear criminal appeals against conviction or sentence from the
Crown Court.

CIVIL CASES
• Magistrates’ court (tribunals), but
may well go to a county court.
• Appeals will go to the High Court
and then to the Court of Appeal –
although to different divisions of
those courts.
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WHAT IS THE DIFFERENCE BETWEEN A COURT AND A
TRIBUNAL?
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Court Tribunal
• General Jurisdiction • Special Jurisdiction
• Need barrister/solicitor • There is not always a need for a
barrister/solicitor to represent someone
• The people sitting on a tribunal will often
have specific expertise

COUNTY
COURT
• The County Courts are inferior
courts created by statute (County
Courts Act 1846 (amended in
1984).
• Deals with these types of
cases= Breach of contract , Claims
in tort, Personal injury, Land
disputes, Family
• These types of cases are also heard
in the High Court.The Country
Court has exclusive jurisdiction
over ‘small claims’.
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APPEAL IN CIVIL CASES
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Cases from the country courts can be appealed at the High Court. This
later has unlimited jurisdiction in civil matters. It will hear the more serious civil
cases.
The High Court is divided into 3 divisions: (1) Queen’s Bench Division (2)
Chancery Division (3) Family Division= (v. infra); which are in turn subdivided to
many many courts.
The Court of Appeal (Civil Division) hears appeals from the county courts,
the High Court (Queen’s Bench, Chancery, and Family Division), and some Tribunals
such as the Employment Appeal Tribunal and the Immigration Appeal Tribunal.

APPEAL IN CIVIL CASES
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Unlike in the criminal courts, any
party may appeal.
Permission to appeal must be given
by the trial judge or the Court of
Appeal. Permission to appeal will
be granted if the appeal has a real
prospect of success or if there is
some other compelling reason why
the appeal should be heard.

UK SUPREME COURT
• The Supreme Court was established in the
Constitutional Reform Act 2005, Part 3. It came into
being in October 2009.
• The Supreme Court has the same jurisdiction, broadly
speaking, as the House of Lords.
• The UK Supreme Court is at the top of the hierarchy of
courts, it is the final court of appeal for civil and criminal
cases in England,Wales and Northern Ireland and the
final court of appeal for civil cases for Scotland.
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UK SUPREME COURT
• In criminal law cases there is an appeal
to the UK Supreme Court from the
Court of Appeal (Criminal, civil
Divisions) and the Divisional Court of
the Queen’s Bench Division (High
Court).This is open to the prosecutor
and the defendant.
• The Supreme Court hears only a small
number of appeals.
• For a case to be heard it must involve
a point of public importance.
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JUDICIAL
COMMITTEE
OF THE PRIVY
COUNCIL
• The Judicial Committee of The Privy Council
(JCPC) is the court of final appeal for the UK
overseas territories and Crown dependencies,
and for those Commonwealth countries that
have retained the appeal to Her Majesty in
Council or, in the case of Republics, to the
Judicial Committee.
• Established by the Judicial Committee Act 1833
• The Privy Council gives advice and opinions :
The decisions of the Privy Council are
persuasive rather than binding.
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COMPARING TO THE FRENCH COURT
SYSTEM ORGANIZATION
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MAIN FEATURES OF THE ENGLISH LAW
SYSTEM
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The English
Law has two
main:
Equity Precedents

1/ EQUITY
• The Oxford English
Dictionary gives a general
definition of ‘equity’ as:
The quality of being equal or fair;
fairness, impartiality; even-handed
dealing.What is fair and right;
something that is fair and right.
• Difference with common
law:
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Equity Common Law
Refers to court rulings dealing
with justice and fairness
Refers to the law based on
precedents
Chancery representative of
the monarch
Judges and jury
-Procedures nowadays in the two are the same, before that
there were two different courts
-Similar cases might be heard in both
Difference: the way which the cases are heard and the type
of decision handled down

ORIGIN OF EQUITY
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Evolved from the King’s
authority to issue writs
through his Chancellor in
order to address unjust
(or unconscionable)
judgments of his courts.
Chancellor was usually a
cleric who made decisions
according to his
conscience on the merits
of the individual case.

RELATIONSHIP BETWEEN
EQUITY AND COMMON LAW
• The Chancellor’s decisions acquired the
status of a separate body of law.
See Chancellor vs Lord Chief Justice - The Earl of
Oxford’s Case (1615) 1 Ch Rep 1 (Rivalry between
the Chancery and common law courts was
exemplified by this case).
• Fusion Equity and Common Law: Section
25(11) Supreme Court of Judicature Act 1873:
‘In all matters not hereinbefore particularly
mentioned, in which there is any conflict, or
variance, between the Rules of Equity and the
Rules of Common Law with reference to the same
matter, the Rules of Equity will apply.’
= fusion administrative uniquement
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WHERE ARE WE NOW?
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Equity remains a separate body of law, but one that is
administered by ALL courts.
Some areas that were originally created by the old Court of
Chancery remain creative.
A key source of this creativity is the
‘equitable maxims’
But this creativity is limited……… (see next slide)

REASONS FOR LIMITING EQUITY’S CREATIVITY
• ‘the creation of new rights and remedies is a matter for Parliament, not
the judges’.
See: Usurpation of the function of Parliament - Western Fish Products v Penwith
District Council [1981] 2 All ER 204, per Megaw LJ:
• ‘one might as well forget the law of contract and issue every judge with a portable
palm tree.The days of justice varying with the size of the Chancellor’s foot would
have returned.’
See:The problem of Uncertainty - Cowcher v Cowcher [1972] 1WLR 425 and
Taylor v Dickens [1998] 1 FLR 806, per Judge Weeks QC
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2/ PRECEDENTS
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The precedent cases are a source of the Law.
A binding precedent is a case that must be applied in a later case.
= Courts must follow binding precedents of courts above their level
Aims to ensure certainty as an aspect of fairness.

WHAT IS THE REASON THAT PECEDENTS ARE BINDING? (WHEN DOES THE
DOCTRINE OPERATE?)
• The Ratio Decidendi (of the judgement)= When we say that a decision is
‘binding’, we are really saying that the ratio of that decision is binding
• Ratio decidendi is basically the principle of law decided by the case in question.
• = We have to look to the reason of the outcome of the precedent case in the
same matter.
See Donoghue v Stevenson [1932] UKHL 100
• NB: The material facts help us find the ratio.
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ATTENTION =/=
• Obiter Dicta (of the judgment) are things
said within a case that do not relate to the
material facts.They are statements that are not
binding on a later judge.
See Home Office v DorsetYacht Co Ltd [1970]
AC 1004
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HOW TO AVOID A PRECEDENT ?
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Overruling Reversing Distinguishing
A court is asked to review whether a
precedent from a lower court is correct
law
= the Law must change
Reversing is when a court higher in the
hierarchy reverses the decision of a lower
court in the same case.
When a court decides that the case is materially
different in fact or law.The court is essentially
saying that the decision is not sufficiently similar.
The effect of distinguishing is that the court does
not consider itself bound by a previous case or
precedent.
McLoughlin v O'Brian , 1982 UKHL 3, 1
(UKHL 6 May 1982)
Overruling
Dulieu v White & Sons | [1901] EWHC
KB 1
For example: when an appeal against a
decision succeeds
- Balfour v Balfour [1919] 2 KB 571
- Merritt v Merritt [1970] EWCA Civ 6===Technically
bound by Balfour – earlier decision, same court - but
the facts were distinguished.

CONVERGENCE BETWEEN ENGLISH LAW AND FRENCH LAW
(OPINION AND IDEAS OF RESEARCHES)
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Hint:After the French
Law reform of 2016
(codifying judicial cases)
Common Law Systems
are becoming more
codified ?
Globalisation EU and uniformed
codifications

FURTHER READINGS SUGGESTED
• Catherine Elliott, Frances Quinn, English Legal System, 2017.
• Stefan Fafinski, Emily Finch, English Legal System (Law Express), 6th edition, 2017.
• Gary Slapper, the English Legal System, Eighteenth Edition, 2017.
• Catherine Elliott, Frances Quinn, English Legal System,Tenth Edition, 2009.
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Introduction to English Law system

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