Problems with common law

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Problems with common law

Causes

  • 1) If litigant wanted to start civil action they'd have to obtain a writ from writ office of Chancery. Problem was they were pre-written.
  • Rigid procedure of the writ system, if they didn't fall within limits of existing writ then:
  • 1285 Statute of Westminster was passed allowing clerks in Writ Office to issue new writs to cover situations similar to existing ones
  • 2)If writ was awarded only remedy was damages
  • 3) Not witnesses were called and no cross-examination was allowed, it was all based on written documents.
  • 4) Bribery and corruption.
  • Proceedings were in Latin
  • 5) Stare Decisis

Effects

  • If someone wanted to bring an action, they'd have to choose a writ that they thought best suited the facts of particular case, if no suitable writ existed then no action could be brought.
  • Certain wrongs went un-remedied.
  • Clerks restrictively interpreted this, not wanting to open up multiple causes/forms of action.
  • Not always most satisfactory solution.
  • Essoin- if defendant said he couldn't attend court because he was off on a crusade, this was accepted and no check was made to see.
  • Juries called and then easily intimidated.
  • Nobody could read/write so even harder to understand.
  • Was inflexible.

Overall summary

1258: The Provisions of Oxford stopped new writs being created. If you wanted case resolved you had to have writ drawn up but this case stopped new writs being created, so if you wanted you case resolved you had to make your case fit into existing writ.The only remedy available was damages and they weren't always suitable remedy e.g. if case involved trespass. 

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