The Court of Appeal of England and Wales - Case Study Example

1. Work of the High Court and the Court of Appeal (Civil Division) The High Court of Justice, together with the Crown Court and the Court of Appeal constitutes the Supreme Court of England and Wales which under the Constitutional Reform Act, 2005 is known as the Senior Courts of England and Wales is headed by the Lord Chief Justice of England and Wales. The High Court at the first instance deals with all the high value and high importance cases, and also has a supervisory jurisdiction over all subordinate courts and tribunals. Appeal from the High Court in civil matters lies to the Court of Appeal and thence to the House of Lords, except when the High Court is sitting as a Prize Court when appeal lies to the Judicial Committee of the Privy Council. The High Court is based at the Royal Courts of Justice on The Strand, in Central London. However, it also sits as District Registries all across England and Wales and virtually all proceedings in the High Court may be issued and heard at a district registry. The High Court is split into three main divisions: the Queens Bench Division, the Chancery Division and the Family Division. The Queens Bench Division, or Kings Bench Division when the monarch is a King — has two roles. It hears a wide range of contract law and personal injury/general negligence cases, but also has special responsibility as a supervisory court. Appeals from the High Court in civil matters lie to the Court of Appeal (Civil Division); in criminal matters appeal from the Divisional Court lies only to the House of Lords. Sub-divisions of the Queens Bench Division include the Technology and Construction Court, Commercial Court, the Admiralty Court and the Administrative Court. The Chancery Division deals with business law, trusts law, probate law, and land law in relation to issues of equity. In addition it has specialist courts within it that deal with intellectual property and company law. All tax appeals are assigned to the Chancery Division. The Family Division deals with matters such as divorce, children, probate and medical treatment. The High Court Family Division has jurisdiction to hear all cases relating to childrens welfare and interest, and exercises an exclusive jurisdiction in wardship cases. The head of the Family Division is the President of the Family Division. The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Appellate Committee of the House of Lords above it. The Court is divided into two Divisions: the Civil Division and the Criminal Division. The Master of the Rolls presides over the Civil Division. The Civil Division of the Court of Appeal was created by the Judicature Acts in 1875 as the Court of Appeal. It merged the Court of Appeal in Chancery, a common law court of error (popularly known as a "court of appeal") and the appellate jurisdiction of the Privy Council in admiralty and ecclesiastical matters. It hears most civil appeals from decisions of the High Court and many from County Courts, as well as from certain tribunals, including: Employment Appeal Tribunal Lands Tribunal Asylum and Immigration Tribunal after a decision made by a three-member tribunal. Appeal from a decision of the Civil Division may be made to the House of Lords with permission of either court. 2. Explain the role of solicitors and barristers in the legal system In the English legal system solicitors have traditionally dealt with any legal matter apart from conducting proceedings in courts (advocacy), except minor criminal cases tried in Magistrates Courts and small value civil cases tried in county courts, which are almost always handled by solicitors. The other branch of the English legal profession, a barrister, has traditionally carried out the advocacy functions. Barristers would not deal with the public directly. This is no longer the case, as solicitor advocates may act at certain higher levels of court, which were previously barred to them. Similarly, the public may now engage a barrister directly and without the need for a solicitor in certain circumstances. The historical difference between the two professions and the only essential difference in England and Wales today is that a solicitor is an attorney, which means they stand in the place of their client for legal purposes, and may conduct litigation by making applications to the court, writing letters in litigation to the clients opponent and so on. A barrister is not an attorney and is forbidden, both by law and by professional rules, from conducting litigation. The barrister will usually be the lawyer who represents litigants as their advocate before the courts. A barrister will usually have rights of audience in the higher courts, whereas other legal professionals will have more limited access, or will need to take additional qualifications to do so. The profession of barrister in England and Wales is a separate profession from that of solicitor. It is however possible to hold the qualification of both barrister and solicitor at the same time; it is not necessary to be disbarred in order to qualify as a solicitor. In the common law tradition, the respective roles of a lawyer, that is as legal adviser and advocate, were formally split into two separate, regulated sub-professions, the other being the office of solicitor.1 Barristers often have a more specialised knowledge of case-law and precedent. When a solicitor in general practice is confronted with an unusual point of law, they sometimes seek the "opinion of counsel" on the issue. Solicitors in England and Wales are regulated by the Solicitors Regulation Authority, an independently administered branch of the Law Society of England and Wales and, in order to become a solicitor, must have passed the Academic and Vocational stages of training. Moreover, solicitors must pay the Law Society of England and Wales a practising fee each year in order to keep practising. If they do not do this they are non-practising and may not give legal advice to the public. The most common methods of qualification are a normal undergraduate law degree, or a degree in any subject followed by a one year course known as the Post-Graduate Diploma in Law. Other routes, for example, spending time as a clerk to magistrates, or passing exams set by the Institute of Legal Executives2 are possible. Up to this point a barrister and solicitor have the same education. Thereafter they split. Solicitors study a one year course called the Legal Practice Course and then must undertake two years apprenticeship with a solicitor, called the training contract (but still widely referred to as articles as in articled clerk by older members of the profession). Once that is complete, the student becomes a solicitor and is admitted to the roll. Barristers are regulated by the Bar Standards Board, a division of the General Council of the Bar. A barrister must be a member of one of the Inns of Court, which traditionally educated and regulated barristers. There are four Inns of Court.3. All are situated in central London, near the Royal Courts of Justice. They perform scholastic and social roles, and in all cases, provide financial aid to student barristers (subject to merit) through scholarships. It is the Inns that actually "call" the student to the Bar at a ceremony similar to a graduation. Student barristers must take a Bar Vocational Course (BVC) at one of the institutions authorised by the Bar Council to offer the BVC. On successful completion of the BVC student barristers are “called” to the bar by their respective inns and are elevated to the degree of "Barrister". However, before they can practise independently they must first undertake twelve months of pupillage. Following successful completion of this stage, most barristers then join a set of Chambers, a group of counsel who share the costs of premises and support staff whilst remaining individually self-employed. In England and Wales, the strict separation between the duties of solicitor and barrister has been partially broken down and solicitors frequently appear not only in the lower courts but (subject to passing a test) increasingly in the higher courts too. 3. The main sources of law in the UK The United Kingdom has three distinct legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law elements dating back to the High Middle Ages. The Treaty of Union 1707 guaranteed the continued existence of a separate law system for Scotland. The Acts of Union between Great Britain and Ireland in 1800 contained no equivalent provision but preserved the principle of separate courts to be held in Ireland, now Northern Ireland. The legal systems within the United Kingdom were based largely on judge-made law, i.e., common law until around the seventeenth century. Each jurisdiction developed its own forms of common law, with Scotland being especially distinct from the rest.4 The sources of the law of Northern Ireland are English common law, and statute law. Presently, all the legal systems in United Kingdom have four main sources of law: (a) Case Law A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow. Whether or not a particular pronouncement (technically called a precedent) by a judge sitting in court when deciding a case does become binding (according to the doctrine of "stare decisis") on later judges depends on two main factors: The pronouncement must be made by a court of sufficient seniority. Basically, judges at the lowest tiers of decision making (often called courts of first instance), are not allowed to issue binding precedents. It is the higher courts which issue binding rulings and the lower courts must follow them. The pronouncement must have formed the ratio decidendi5 of the case. The reasoning must be a matter pertaining to the law rather than a factual decision. The ratio decidendi will be binding. It will comprise the legal principles and rules which are necessary to solve the problem before the court. (b) Legislation or Statutory Laws Legislation has become the commonest source of new laws or of law reform since around the Seventeenth century. Statutes can be applied to all or any combination of jurisdictions within the United Kingdom, whereas the common law jurisdictions are more limited. Acts of Parliament which apply to everyone throughout one or more jurisdictions are called public general Acts. But Acts may also be limited to geographical locations within a jurisdiction or to specific persons or companies. The Parliament of the United Kingdom is bicameral, with an upper house, the House of Lords, and a lower house, the House of Commons. The most important legislation is Acts of Parliament (called primary legislation). This becomes valid through being approved (after debate) in the House of Commons and the House of Lords; it then receives the Royal Assent from the Queen. (c) Delegated Legislation A greater volume of legislation is nowadays made under the authority of primary legislation by Government Ministers, and it does not have to be approved in advance by Parliament. This is called delegated or secondary legislation. Delegated legislation is issued (often by a government minister) under a specific power in the "parent" or "enabling" Act. Such legislation is issued in the form of statutory instruments and may be titled "regulations" or "orders". There are also powers under the Local Government Act 1972 for local authorities to issue delegated legislation - these are called bye-laws. (d) European Community Law European Community law is becoming an increasingly important source of law within the United Kingdom. EC law became part of UK law on 1 January 1973 when the UK became a member of the European Communities by signing the 3 treaties: the Treaty of Paris, 1951; and the two Treaties of Rome, 1957. The UK adopts a dualist approach to international law and effect was given to the European treaties by the European Communities Act 1972 (ECA) which made EU law part of domestic law. According to Section 2(1) of the ECA, directly effective EU law automatically becomes part of domestic law without the need for an Act of Parliament. The implications of this are that domestic law must comply with EU law and in cases of conflict EU law will prevail. Moreover, according to Section 2(4) of the ECA, any domestic enactment (statute or statutory instrument) must be construed in accordance with directly applicable community law and if this is not possible EU law will override domestic law.6 4. Advice to George, Helen and Ben (A) Advice at the stage of Starting-Off (a) Partnerships are two to twenty people who work together as a business with each partner jointly and severally liable for any debts. Profits in the business are shared between the partners in accordance with the partnership agreement.  The primary distinction between a partnership and limited company is that the incorporated organisation is a separate entity in the eyes of law. It is treated as independent of its owners and shareholders. The following are the advantages and disadvantages of starting the business as a partnership as opposed to a limited company: Advantages A partnership is much easier to set up than a limited company where the Procedure to set up is more complicated and costly. There is relatively more freedom in managing a partnership, where the degree of control varies, especially if a Partnership Agreement is drawn up. On the other hand, limited companies need to comply with the Companies Act 1985-89 and people should be aware of their obligations as a Director of a Limited Company. There is no need to disclose financial information to the public. On the other hand, company accounts must be lodged at Companies House and if turnover goes over 1 million an independent audit is required and is expensive. National insurance payments are relatively lower in case of partnerships as compared with limited companies where there is a requirement to pay employers as well as employees contributions on salaries. Disadvantages The partnership business is owned jointly with one or more people and each partner is personally liable for all the firm’s business debts (jointly and severally liable), even if another partner caused them. In case of a limited company, there is limited liability status so personal assets of the shareholders are protected. However a shareholder/director may still find that he is personally liable if he has signed a personal guarantee with a Bank or traded illegally. Raising capital in case of a partnership may be relatively more difficult as introduction of new partners may be required for the same. Further capital can be raised in a company by issuing more shares in the company. Further, in case of a company, it can be easier to obtain credit from suppliers. Often the death or departure of a partner may mean the dissolution of the partnership or the selling of assets to meet taxes and other financial obligations. A company has perpetual succession, i.e., the company continues as a legal entity irrespective of the death or retirement of a shareholder. For higher earnings there are tax advantages and opportunities for tax planning in companies which may not be available in partnerships. (b) A limited liability partnership is a legal entity and a body corporate. That means it has a legal personality separate from that of its members. Like a limited company, a limited liability partnership can do all the things an individual or company can do. It can make contracts, sue or be sued, hold property or become insolvent. By and large, partnership law does not apply to a limited liability partnership, but the arrangements between the partners may closely follow a traditional partnership agreement. The liability of members of a limited liability partnership, if it is wound up, is limited (compared with a partnership where the liability of the partners is unlimited).7 The essence of a limited liability partnership for practical purposes is as a vehicle to contain a partnership of any size where partners may be at risk from the careless or accidental negligence of a colleague. As George would be actively involved in the interior design business and Helen and Ben would merely be passive investors, the LLP structure would afford them better protection than a partnership. In essence, a limited liability partnership is appropriate for a partnership where some partners are not actively involved, i.e., “sleeping” partners. This will suit both a company and an individual lender. The LLP structure also allows easier entry and exit of partners. (c) Although a written partnership agreement is not required to form a partnership it is vital to avoid uncertainty and the automatic application of unsuitable statutory law. Without a partnership agreement the actions, powers and rights of each partner are controlled by the Partnership Act 1890. This act has many provisions but those which can have a significant effect in the absence of a partnership agreement include: All partners are entitled to share the profits equally no matter how much capital, effort or skill they bring into the business. Any partner can bring the partnership to an end just by giving notice to all the other partners. It is also dissolved if a partner dies. All partners are jointly and severally liable for the liabilities incurred by the company. This means that if a debt cannot be paid then the creditor can pursue all the partners individually and one may be forced into the position of paying the whole debt by themselves. Should a partner get into financial difficulties then their creditors can take assets from the partnership to settle them. All partners are considered "agents" of the business and act on behalf of the other partners. They can enter into contractual and financial arrangements which are not good for the business but these will be binding. All partners have an equal say in the business and decisions can take time or the business break down in the event of a severe dispute. (B) Advice at the stage of Formation of the Company (a) A company can be registered either electronically or by sending paper forms and documents to Companies House. The documents which must be filed are: Memorandum of association Articles of association Form 10 Form 12 The memorandum and articles are the companys constitution. They must be signed by at least one subscriber. The subscribers are the founder members of the company8. Form 10 must state the address of the companys registered office and details of the first directors and secretary of the company.9 Form 12 is a statutory a declaration that all the requirements of the Companies Acts in connection with the incorporation have been complied with.10 The Companies Act, 1985 provides various formalities which are required to be complied with for the running of the company. (b) A company secretary, being an officer of a company11 along with the director(s), is responsible for various housekeeping duties in relation to the company. The company secretary takes directions from the director(s) and gives effect to the resolutions of the director(s) by, for example, ensuring appropriate filing of statutory forms at Companies House, maintaining the companys statutory registers, preparing and sending notice of meetings of members/shareholders, keeping or arranging for the keeping of minutes of meetings of the directors and the members/shareholders etc. In addition a company secretary may have a range of other duties and responsibilities depending upon his/her (or its) terms of employment. (c) Winding up refers to the process by which a company is brought to an end, and the assets and property of the company redistributed. There are three types of winding up proceedings that can be initiated under Part IV of the Insolvency Act 1986: Members voluntary liquidation (or members voluntary winding up) - this is when the shareholders of a company decide to put it into liquidation, and there are enough assets to pay all the debts of the company, i.e. the company is solvent. Creditors voluntary liquidation (or creditors voluntary winding up) - this is when the shareholders of a company decide to put the company into liquidation, but there are not enough assets to pay all the creditors, i.e. the company is insolvent. Compulsory liquidation (or compulsory winding up) - this is when the court makes an order for the company to be wound up (a winding-up order) on the petition of an appropriate person. If there is more than one director, all the directors must jointly present the winding-up petition - a single director cannot present a winding-up petition. References Companies Act, 1985 Constitutional Reform Act, 2005 Emily Finch and Stephan Fafinsky, English Legal System, Law Express, London, 2007 European Communities Act, 1972 Ewan McIntyre, Business Law, 4th Ed., Pearson, London, 2007 Fiona Cownie and Anthony Bradney, English Legal System in Context, Butterworths, London 1996 Gary Slapper and David Kelly, The English Legal System, 8th Ed., London, 2007 Jacqueline Martin and Chris Turner, The English Legal System (Key Facts), 2nd Ed., London, 2007 Partnership Act, 1890 The Acts of Union between Great Britain and Ireland, 1800 The Treaty of Union 1707 Read More