Law shizz for unit 1

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  • Created by: molly
  • Created on: 17-11-12 16:22

civil court advantages

Lets people do something about a wrong

Fairer outcome- courts are there to promote justice

Dispute will reach a resolution

Can appeal to a higher court

"fast track" action has a time limit so its cheaper and faster

You can insure against losing

The decision of the court is final-it binds the parties.

Courts can enforce their remedies- can access bank.

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Disadvantages of using civil courts

Can be difficult to ensure parites are available

Can take a long time (multi track)

Very expensive to take action-could lose a lot of money (especially if you lose case and have to pay other sides costs)

Taking action in courts makes it public

Court may impose a heavy fine

Very formal method-not as flexible as ADR

Likely to lead to an end in the parties relationships.

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Track system

For under £5,000  it goes to small claims track-county court.

For £5,000-£25,000 it goes to"fast track"-  county court/ high court.

"Fast track" is limited to 30 weeks from claim till trial-one day trial and one expert witness.

For £25,000-£50,000+ it goes to "multi track"- High court.

"Multi track" has no time limit.

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Statutory Interpretation- literal rule

Literal Rule- When words are given their plain, ordinary literal meaning. Cases: R v Harris 1836-The defendant bit off victims nose. An act made it an offence to "stab,cut or wound" which implies a tool was used. Literally no tool was used. He bit-conviction not upheld.               Whitley V Chappel 1868-A statute made it "an offence to impersonate any person entitled to vote" He was impersonating a dead man. Literal rule applied- defendant aquitted.

Berriman  1946-A railway worker had been killed whilst oiling the track. A statute provided compensation payable on death for those relaying/repairing the track. Literal rule applied (he was maintaining) so case closed. This was an unjust result.                 Cheeseman 1990- the word "passenger" was the problem, and to help solve this the court used an extrinsic aid of the oxford dictionary from when the act was passed (1847)  and as it was seen to mean "foot passenger" the convictin wasnt upheld.

 

 

 

 

 

 

 

 

 

 

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Statutory interpretation- Golden rule + cases

The golden rule may be applied in cases where applying the literal rule would lead to an absurdity. The courts may then apply a secondary meaning.

Cases:   R v Allen 1872

The defendant was charged with the offence of bigamy. However as literally the defendant couldnt be legally married twice the courts used the golden rule- "marry" meaning go through a ceremony and defendants conviction was upheld. 

Re sigsworth 1935 -A son murdered his mother. She had no will. This meant legally he would inherit her estate due to the administration of jusitice act 1925-this would be absurd. So court applied golden rule and he was entitled nothing.  

Adler V George- under the official secrets act 1920 it was an offence to obstruct a member of the armed forces "in the vicinity" of a prohibited place. The defendant argued he was actually in the prohibited place and not "in the vicinity" of it at the time. the court applied golden rule as it would be absurd if a person was liable near a prohibited place but not in it. conviction upheld.

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Statutory interpretation-Mischeif rule

The mischeif rule was established in heydons case 1584. Under the mischeif rule the courts rule is to supress the mischeif the act is aimed at and advance the remedy.

Cases: Smith v Hughes 1960 -guilty of soliciting in a public place, even though technically they were inside. mischief rule applied- defendants were within the mischeif the act was trying to supress.

Royal college of nursing v  DHSS 1981- It was legal for nurses to carry out abortions, the abortions act was aimed at stopping backstreet abortions where no medical care was avaliable. The actions of the nurses were therefore outside the mischeif of the act 1861.

Elliot v grey 1960-

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Ratio decidendi

The ratio decidendi forms the legal principle which is a binding precedent meaning it must be followed in future cases containing the same material facts.

 As an example, the ratio in Donoghue v. Stevenson would be that a person owes a duty of care to those who he can reasonably foresee will be affected by his actions.

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Obiter Dicta

something said with the judgement that isnt a binding precedent but can be a persuasive precedent.

For example in R v Howe & Bannister [1987] the House of Lords held that the defence of duress was not available to murder. This was the ratio decidendi of the case. The House of Lords went on to consider whether the defnce should be available to those who attempt murder and stated obiter dicta that the defence of duress should not be available to attempted murder.

This decision was followed in R v Gotts.

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Extra stuff

Literal rule- the idea was expressed by lord Esher in R v Judge of the city of london court (1892) .

mischief rule- this comes from heydons case (1584) the court should look to see what the law was before the act was passed to see what the gap or "mischief" in the law the statute is trying to cover. 

The purposive approach was used in R v Registrar general, ex parte smith (1990) 

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