Introduction to the English

Legal System and its

Terminology

JLU Gießen - 2024

 Linda Lewis, LL.M
Rechtsanwaltin
Barrister (GB)
Fachanwaltin für internationales Wirtschaftsrecht

Verfügt über jahrelange Erfahrung in der

nationalen und internationalen
handelsrechtlichen Unternehmensberatung
und -vertetung

+ 49 6441 9446-40
l.lewis@kkp.law
1. The Players
1. The Players
Solicitors and Barristers

Judges

Jury

Crown Prosecution Service

Lay Justices
Dual Legal Profession:
Barrister/Solicitor
Legal Education

Barrister
1. Academic Component
• Qualifying Law Degree or
• Other degree + Graduate
Diploma in Law (GDL)
2. Vocational component
Bar Training Course +
12 Qualifying sessions
at Inn of Court
3. Work-Based Component
Pupillage
 Inns of Court
There are four Inns or Court: Gray’s Inn, Lincoln’s Inn, Middle Temple and
Inner Temple.
They date from the 14th century and were first established to provide
accommodation and training for Barristers.
Today the prime function is to call people to the bar and to host “qualifying
sessions” / dinners.
Dinners are often accompanied by educational speeches or debates and
provide an opportunity to meet practicing barristers and senior members of
the profession
Legal Education

Solicitor
1. Academic Component
Undergraduate law degree in any
subject
2. Solicitors Qualifying Examination
(SQE) Assessments
SQE 1 Functioning legal
knowledge
SQE2 Practical legal skills
3. Vocational Component
Qualifying Work Experience
(QWE) – 2 years
Mode of Practice

Barrister
• Barristers provide specialist legal
advice and appear as advocates
in both criminal and civil courts
• Self-employed sole practitioner
• Works from Chambers
• Premises and administrative
facilities are shared
• Profits are not shared
• Restrictions on partnerships
Mode of Practice

Solicitor
• Solicitors undertake a broad range
of work associated with day-to day
legal concerns: divorce, wills,
conveyancing, civil and criminal
litigation
• Generally, work in partnerships
• Work from law offices
• All revenue from firm is pooled
• After deduction of cost profits are
shared as determined by the
partnership agreement
Rights of Audience and Legal Access

Barrister Solicitors
• Unlimited rights of audience • Rights of audience are limited
(all courts of first instances, to the magistrates, court and
all appeal courts including country court. Certificate of
the UK Supreme Court) adovocacy is required in order
• Limited rights of access to to appear before higher
the public – generally briefed courts.
by professional clients such • Unlimited rights of access to
as solicitors or accountants the public
 The Need for Reform
• Traditionally Barristers had a
monopoly on litigation and
rights of audience

• Solicitors had a monopoly on

conveyancing and probate
The Need for Reform

Courts and Legal Services Act 1990

The Courts and Legal Services Act 1990 was an attempt to make a wider choice
for the public by breaking the monopolies of Solicitors and Barristers.

The Act broke the monopoly solicitors held on conveyancing work, creating
an Authorised Conveyancing Practitioners Board which could certify "any
individual, corporation or employee of a corporation" as an authorised
conveyancer subject to certain requirements. ​

The Act also broke the monopoly the Bar held on advocacy and litigation in the
higher courts by granting solicitors rights of audience in the Crown Court, High
Court, Court of Appeal, Privy Council, and UK Supreme Court if they qualify as a
Solicitor Advocate.
Judges
 Judicial Hierarchy in England and Wales
• UK Supreme Court Justices​
• Heads of Division (Court of Appeal) – e.g. Master of the
Rolls
• Lord Justices of Appeal
• Heads of Division (High Court) – e.g Head of Chancery​
• High Court Judges​
• Circuit Judges​
• District Judges
Which Judge sits where?
Judicial Appointment in England and Wales
• Regulated by the Constitutional Reform Act 2005
• Formerly appointed by the Lord Chancellor (a member of government) judges
are now appointed by the Judicial Appointments Commission, an independent
body which consists of 15 members​
• Judges are selected on merit​
• Unlike as in Germany no career judiciary​
• In order to be eligble to become a judge the candidate must have at least 7 years
experience in practice, either as a barrister or as a solicitor advocate
The Jury
The Need for Reform

The Jury
• ​The right to a jury trial enshrined in English Law since the Magna
Carta in 1215 – now regulated by the Juries Act 1974
• Unlike in the US the role of the Jury in the UK is restricted to criminal
proceedings only. They no longer play a role in civil proceedings with
the exception of defamation cases or police conduct cases​
• In the US a jury will also be used to decide whether there is sufficient
evidence for the case to proceed to trial (grand jury)
• Persons between the age of 18 – 70 are eligible for jury service​
• During selection procedure jury members can be challenged by the
legal representatives of the parties to the case
The Jury System

Arguments for Arguments against

• Check on judges power, • Importance overrated, most
protection oppresive defendants are not tried by
prosecution​ jury​
• Fairer trial, 12 people will • Difficulties in understanding
cancel out one another‘s complex trials​
prejudices​ • Expense
• Decision by members of the
community confers
legitimacy on the verdict
 The Crown Prosecution Service
• Prosecution of Offences Act 1985
• Headed by the Director of Public Prosecution – DPP
• Principal prosecuting agency for conducting criminal
prosecution​
• Provides advice to police and other investigative agencies​
• Members of the Crown Prosecution Service appear at court.
They have rights of audience similar to those of a solicitor. For
cases in higher courts a barrister must be instructed.
 The Lord Chief Justice
• Head of the Judiciary of England and Wales
• President of the Court of Appeal (Criminal Division)
• President of the Courts in England and Wales and may hear cases in
any English court
• Represents views of the judiciary to Parliament and the government
• Deploys judges
• Allocates work to courts in England & Wales
• Handles complaints against other judges
• Sits on Sentencing Council which promotes clarity and consistency
in criminal sentencing
 The Attorney General
• Chief adviser to the government
• Oversees the Crown Prosecution Service
• In important cases the Attorney General may prosecute or take over
the prosecution in very important cases
• In relation to certain offences where there are consequences for
public policy, national security or relationships with other states, the
consent of the Attorney General is required to prosecute
• Reviews “lenient” sentences handed down by the Crown Court
 The Legal Aid Agency
• Came into existence on 1st April 2013
• Agency provides civil and criminal legal aid (funding) in England and
Wales
• Funding has been heavily curtailed by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012, particularly civil legal aid but also
criminal legal aid.
Lay Justices
 Lay Justices
• Appointed by the Judicial Appointments Commission​
• Unpaid volounteers – often local counsellors​
• Six core requirements​
- Good character​
- Understanding and communication​
- Social awareness​
- Maturity and sound temperament​
- Sound judgement​
- Commitment and reliability
2. Criminal Courts
and Criminal
Procedure
Court Structure
Criminal Court Structure

UK Supreme Court

Court of Appeal (Criminal Division)

Crown Court

Magistrates Court
 Categories of Offence
• Summary Offences / Minor
Offences​
• Trial on an Information
• Magistrates Court
• District Judge (Inner Cities) or​
• 3 Lay Magistrates
• Time limit – 6 months within
commission of offence
 Categories of Offence
• Indictable Offences / Serious
Offences​
• Trial on an Indictment​
• Crown Court
• Circuit Judge or a High Court
Judge and​
• Jury
• No time limit
 Categories of Offence
• Either Way Offences / Medium
Serious
• Triable either on an indictment
or on an information​
• Plea before venue
• Allocation proceedings are held
in the Magistrates Court
• No time limit
 Either Way Offence: Forum Criteria
• Does the Magistrates Court have jurisdiction?
• Determining factor are the Magistrates‘ powers of punishment​
• Maximum – 6 months imprisonment or £5000 fine​
• If powers of punishment are insufficient Magistrate must decline
jurisdiction and commit the case for trial before the Crown Court
• If powers of punishment sufficient Magistrate must accept jurisdiction
and it is open to the Defendant to choose the forum
• Defendant may ask for indication of sentence. No obligation on court
to give an indication but where it does it is binding if Defendant
pleads guilty immediately
The Jury System

Pro Magistrates Court Pro Crown Court

• Powers of punishment of the • Statistically chances of an
Magistrates Court are limited - acquittal are greater
Note Committals for sentence • A jury will not hear
• Defendant may have to wait prejudicial evidence excluded
longer for trial at Crown Court by the judge in their absence
• Crown Court is more expensive.
• Crown court judge better
Defendant may be ordered to
pay a proportion of the costs
equipped to deal with legal
issues than magistrate
Role of the Magistrates Court in Criminal Cases

• E​ xclusive jurisdiction for summary trials​

• Exclusive jurisdiction for all pre-trial preliminaries:
- first appearances​
- bail applications​
- determination of mode of trial​
- committal proceedings​
• The majority of cases (95%) are heard in the
Magistrates Court
Role of the Crown Court in Criminal Cases

• Exclusive jurisdiction for trials on indictment​

• Exclusive powers of sentencing in cases where the powers of
sentencing of the Magistrates Court are insufficient to adequately
deal with the Defendant​
• Note – where a defendant has been found guilty at the Magistrates
Court and the Magistrate is unable to adequately punish the
Defendant on the basis of the Defendant‘s antecedents, the
Defendant must be committed to the Crown Court for sentencing
 Adversarial System
• The role of the judge is
passive
• Comparable to an umpire​
• Research, preparation and
presentation of the case is
undertaken by the lawyers
 Crown Court Trial – PTPH
• PTPH =Plea and Trial
Preparation Hearing
• Arraignment​
• Entry of the plea​
• Date set for trial
 Prosecution Case
• Jury empanelled
• Prosecution Opening
• Presentation of the case for
the Prosecution​
• Documentary Evidence​
• Oral Evidence
 Witness Testimony
• Examination in Chief (line of
questionning by the party in
support of whose case evidence
is submitted)
• Cross Examination (Opponent)
• Re-examination
 Submission of no case
• At the close of the prosecution case it is open to the defence to make
a submission of no case to answer​
• In order to be successful the defence must demonstrate that the
prosecution has not submitted sufficient evidence upon which a jury
could reasonably convict the defendant​
• A submission of no case to answer is a matter of law which is decided
by the judge in the absence of the jury
 Defence Case

• Defence Opening
• Presentation of the case for
the Defence​
• Documentary Evidence​
• Oral Evidence
 Voire Dire
• Questions of law are decided by the judge in the absence
of a jury.
• Typical example is the admissibility of a piece of evidence​
• The judge may hear evidence in support of the application
which can include witness testimony – this is known as a
trial within a trial (Voire Dire)
• Classic example – evidence of a false confession​
• Once the judge has ruled on the admissibility of the
evidence the jury is called back into the court room and
the trial continues
 Closing Stages
• Closing speeches by counsel for the respective parties​
• The judge sums up the case to the jury by explaining​
- the law and its requirements​
- elements of the offence​
- burden of proof​
- standard of proof​
- the weight that can be attached to evidence heard​
• The judge must not influence the jury, otherwise grounds
for appeal
 Verdict
• At the close of the judge‘s summing up the jury retires to
consider its verdict.
• The original direction given by the judge is that the verdict
must be unanimous​
• After 2 hours and 10 minutes (Practice Direction) the jury
is directed that a majority verdict can be accepted: 11:1,
10:2
• Any thing less is a hung jury which means retrial​
• After the verdict the jury is discharged
Sentencing
 Sentencing
• Sentencing is a matter of law and therefore a matter for
the judge
• Evidence of the defendant‘s antecedents is presented to
the court by a police officer​
• Defence counsel will submit to the judge a plea in
mitigation​
• The judge may adjourn for reports​
• Sentencing options include a fine, conditional discharge,
community service, a suspended sentence, imprisonment
3. Civil Courts &
Civil Procedure
Court Structure
Courts of First Instance

High Court County Court

• Jurisdiction for claims over • Jurisdiction for claims up to
£50,000 £25,000
• Jurisdiction for claims • Jurisdiction for
between £25,000 and straightforward claims
£50,000 which are legally between £25,000 and
complex​ £50,000
• Presided over by a High • Presided over by a Circuit
Court Judge Judge (County Court Judge)
 High Court of Justice
• Kings Bench Division
President of the King‘s Bench
Division
• Chancery Division
Chancellor to the High Court
• Family Division
President of the Family Division
 Kings Bench Devision
• Contract Law
• Personal Injury / Negligence Cases
• King‘s Bench Divisional Court hears appeals by way of case
stated from the magistrates court (questions of law
considered solely on the basis of facts found and stated by
the authority under review). Appeals from the divisional
court are to direct to the UK Supreme Court
• Includes Technology and Construction Court, Commercial
Court and Admiralty Court
Chancery and Family Division

Chancery Divison
• Business Law, Trusts Law,
Probate, Insolvency, Land
Law, Tax Appeals

• Includes the Patents Court

and the Companies Court
Chancery and Family Division

Family Divison
• Divorce, all cases relating to
children‘s welfare, exclusive
jurisdiction for wardship
cases​
• Medical Treatment – e.g.
separation of conjoined
twins without parent‘s
consent
 Adversarial System – Civil Cases
• Role of the judge is passive.
He decides matters of law
and fact – usually no jury​
• Research, preparation and
presentation of the case is
undertaken by the lawyers
 Civil Litigation
• Burden of Proof – He who asserts must prove​
• Standard of Proof – balance of probabilities. (Standard much
lower than for criminal cases where the prosecution must
prove beyond reasonable doubt or so that the jury is sure of
the defendant‘s guilt.)
• Terminology – civil wrongs not crimes, liability not guilt​
• Trial is by judge alone. In the UK only rare exceptions where a
jury is used to determine liability and damages – e.g.
defamation cases​
• In the US the role of the jury in civil trials is undiminished​
• The majority of cases settle before judgement
 The Woolf Reforms
• Formerly civil procedure was notoriously adversarial with
arguments and evidence being often disclosed at the last
minute making it difficult to assess the strength of the
opponents case.
• There were often extensive delays through manipulation​
• The inequality of parties allowed the more powerful party to
dominate the weaker party into submission through cost​
• Civil Procedure Act 1997 was introduced to make the civil
system accessible, fair and efficient​
• Supplemented by the Civil Procedure Rules 1998
The Woolf Reforms – Key Changes
• Expert Witness – one withness will suffice​
• Small claims procedure – hearings normally held in judge‘s chambers​
• Fast track procedure – court directs timetable for disclosure, exchange of
witness statements and fixes hearing date max 30 weeks ahead​
• Multi track procedure – may include several directions hearings
• Court‘s power to control evidence – i.e. the form of its delivery​
• Wasted costs orders will be imposed if a party acts improperly,
unreasonably or negligently thereby causing unnecessary costs to the other
party​
• Alternative Dispute Resolution
The Woolf Reforms - Disclosure
• Disclosure formerly known as discovery and was thought to
be a major generator of cost if uncontrolled. Standard
disclosure now requires only documents on which a party
relies and documents which
-adversely affect his case​
- adversely affect another party‘s case​
- support another party‘s case​
- are required by a Practice Direction
4. Sources of Law
Acts of Parliament
 The Legislative Process
• House of Commons​
• House of Lords
• Royal Assent​
• Primary Legislation​
• Delegated Legislation
 House of Commons
• 650 Members
• Each constituency in the United
Kingdom has one Member of
Parliament (MP)
• Term 5 years​
• By convention the Prime
Minister is a member of the
House of Commons
Electoral System First Past the Post
House of Lords
 House of Lords
• Lords Spiritual (26) – bishops​
• Lords Temporal – life peers and hereditary peers​
• House of Lords Act 1999 restricted the number of hereditary
peers (currently 90)
• Number of seats is not fixed – currently 850
• House of Lords reviews and amends bills passed by the
commons but is usually unable to prevent bills passing into
law (Parliament Act 1911)

A check on the House of Commons which is independent of

the electoral process
 Common Law
• A system of law which is common
throughout the land
• Originated in England in the
Middle Ages (1066)
• A system of law which is developed
by judges​
• Stated decisions have precedented
effect thereby ensuring consistent
treatment
 The Law of Equity
• „Aequitas“ – fairness​
• System of law developed by the Court
of Chancery based on appeals to the
King
• Appeals necessitated by inadequacy of
common law to provide legal remedies
other than damages​
• Additional remedies introduced such
as injunctions, specific performance,
repossession, rescission – but
discretionary !
The Law of Equity – The Judicature Acts 1873 - 1875

• Fusion of the • In the event of a conflict

administration of the between the common law
common law and the law and the law of equity the
of equity but not the law of equity always
systems of law themselves prevails.
Statutes are the most important source today – Why?

• ​Case law system is dependent on litigation. The majority of cases settle

before judgment, primarily due to the cost of litigation​
• During the UK membership of the European Union (1972 – 2020) many
areas were regulated by EU law and were required to be enacted into
national legislation insofar as they did not take direct effect
(Resolutions).
• Parliament is a speedy means of dealing with the pace of technological /
social / economic developments as and when they arise. The Case law
system has no means of control over the legal issues which it has to
decide.
5. Case Law
Which part of judgment is binding?

RATIO DECIDENDI
 Ratio Decidendi
• Defined by Sir Rupert Cross as follows:

„Any rule of law expressly or impliedly treated by the judge as a necessary

step in reaching his conclusion, having regard to the line of reasoning
adopted by him, or a necessary part of his direction to the jury“

• Contract Obiter Dictum - a statement of law not necessary for the

decision
Wilkinson v Downton 1897 2 Q.B. 57
Facts : The Defendant represented to the Plaintiff that he was charged by her
husband with a message to her to the effect that her husband was smashed
up in an accident and was lying at a pub with both legs broken and that she
was to go and fetch him home. All this was false. The effect of the statement
on the Plaintiff was to cause a violent shock to her nervous system producing
vomiting and other serious and permanent physical consequences at one
time threatening her reason and entailing weeks of suffering and incapacity as
well as expense to her husband for medical attendance. Accordingly the
Plaintiff claimed compensation for her illness and suffering (damages).
Wilkinson v Downton 1897 2 Q.B. 57
Judgment : Wright J. It was argued for the Plaintff that damages are recoverable as
they were caused by fraud and therefore within the doctrine that a person who
makes a false statement intended to be acted on must make good the damage
naturally arising from it being acted on (Pasley v Freeman). Here there is no injuria
of that kind. However I think that it may be supported on another ground: the
Defendant has as I assume for the moment wilfully done an act calculated to cause
physical harm to the Plaintiff – i.e. to infringe her legal right to personal safety and
has thereby caused physical harm to her. That proposition without more appears
to me to state a good cause of action, there being no justification alleged for the
act. The wilful injuria is in law malicious although no malicious purpose to cause
the harm which was caused is imputed to the Defendant
Wilkinson v Downton 1897 2 Q.B. 57

Ratio Decidendi : Where a person wilfully does an act

calculated to cause physical harm and thereby causes
physical harm to the Plaintiff he shall be liable in
damages for the illness and suffering resulting
therefrom
Which decisions made by which courts are binding ?

Stare decisis et quieta non

movere
(the doctrine of binding precedent)
 The doctrine of binding precedent

• Vertical Aspect : describes the extent

to which decisions of a higher court
are binding on a lower court?
•
• Horizontal Aspect : describes the
extent to which courts are bound by
their own previous decisions?
Doctrine of binding precedent – strict application pro & contra

Pro Contra
• Doctrine saves judicial time and • Doctrine causes judicial
energy​ laziness​
• Doctrine makes legal decision • Doctrine is backward looking
making predictable​
and stifles creativity​
• Strict application satisfies the
requirement of justice that
• Strict application leads to
„people be treated alike in like inflexibility and unfairness
circumstances.“
Exceptions to the strict horizontal application

UK Supreme Court Court of Appeal

• Practice Direction 1966 – self • Criteria for exceptions are set out in
conferred power that UK Supreme the case of Young v Bristol
Court no longer bound by its Aeroplane Company Limited (1944)
previous decisions where it is just • Conflicting decisions of the Court of
and reasonable to depart from the Appeal
previous decision – sparingly used​ • Decisions given per incuriam (lack of
• British Railways Board v Herrington care)
(1972) overturned Addie v • Decisions impliedly overruled by
Dumbreck (1929) by strengthening subsequent Supreme Court decision
tortious protection for child
trespassers
Exceptions - Court of Appeal Criminal Division

• The Court of Appeal (Criminal Division) is bound by decisions of the UK

Supreme Court
• It is further bound by itself and its historic precedents subject to the
exceptions in Young and Bristol Aeroplane
• A further exception is the case of R v Spencer [1987]
• Where dealing with the liberty of a subject the Court of Appeal can depart
from authority in the interests of justice to the appellant​
6. Statutory
Interpretation
Reasons for Statutory Interpretation

• Words are ambiguous and change meaning over time

• Unforeseen situtations are inevitable, new cultures and
technologies make application of exisiting laws difficult​
• Uncertainties arising during course of enactment such as need
for compromise or catering to special interest groups
Literal Rule / Ordinary Meaning Approach
Duport Steel Ltd v Sirs [1980]

• „Where the meaning of the statutory words is plain and

unambiguous it is not for the judges to invent fancied
ambiguities as an excuse for failing to give effect to its plain
meaning because they themselves consider that the
consequences of doing so would be inexpedient, or even unjust
or immoral.“
R v Hillingdon London Borough Council Ex Parte Pulhofer

• Application for Housing Benefit by Mr Pulhofer​

• No Housing Benefit available if Mr Pulhofer occupying accomodation​
• Mr Pulhofer argued absence of sanitary facilities justified the grant of the
public benefit​
• The court had therefore to interpret the term accomodation​
• Court held that accomodation did not automatically include sanitary
facilities​
• Applicant therefore not homeless and therefore not entitled to Housing
Benefit
R v Human Fertilisation and Embryology Authority Ex Parte Blood

• The Plaintiff Diane Blood was a widow and childless. She desired to have a
baby using the sperm of her deceased baby and made an application to the
court.
• She was refused consent to use her dead husband‘s sperm because of the
absence of his written consent​
• The court, which is bound to apply the ordinary meaning approach, held
the words of the statute prevented the judge from reaching a decision that
he and the public considered just.
The Golden Rule

Where the application of the literal rules gives an

absurd result the judges can look for a secondary
meaning which is linguistically sustainable by the
words used by Parliament
 R v Allen
• Where a person being married marries any other person during the
lifetime of his spouse, he shall commit the crime of bigamy​
• Allen married Harriet Crouch during the lifetime of his spouse​
• Allen argued at court by way of defence that he was so closely related to
Harriet that the bigamous marriage was void. Hence he had not legally
married Harriet and was not guilty of bigamy​
• If Allen were to succeed on his argument the law would produce an
absurdity because logically no bigamous marriage is lawful by its own
definition
 R v Allen

• Applying the Golden Rule the judge adopted a secondary meaning and
read the words „shall marry“ as meaning „going through the ceremony of
marriage“
• Accordingly Allen was guilty of the crime of bigamy.
Mischief Rule

The Mischief rule applies where the first two rules fail
to assist interpretation and is a much wider approach
concerntrating on determining the meaning of words
by discovering the aim of the statute, i.e. the mischief
at which the statute was directed.
 Heydons Case 1584

• What was the common law before the statute was made?
• What was the mischief and defect for which the common law
did not provide?
• What remedy did Parliament intend to provide?
• What was the true reason for that remedy?
 Royal College of Nursing v DHSS

• Under the Offences against the Person Act 1861 it was an offence to carry
out an abortion​
• In 1967 the Abortion Act legalised abortions in certain circumstances
provided they were carried out by medical practitioners​
• The case in question was concerned with the legality of the involvement of
nurses in carrying out an abortion​
• Is a nurse a medical practitioner within the meaning of the 1967 Abortion
Act?
• On application of the mischief rule the court held that the abortion was
legal. The abortion was carried out by a nurse under the supervision of a
medical practitioner
 Purposive Approach – Pepper v Hart

• Teacher at a private school could send his child to the same school at
reduced rates​
• This was considered a taxable benefit by the inland revenue​
• Teacher sought to rely on statements made (Hansard) at the time the
Finance Act was passed specifying circumstances where tax is not payable​
• House of Lords departed from previous authority by ruling that Hansard
could be consulted and that tax was not payable​
• For the first time the use of extrinsic aids were permitted for the purpose
of statutory interpretation
7. Contract Law
 Elements of a Binding Contract

• Agreement
• Consideration​
• Intention to create legal
relations​
• Certainty of terms
Agreement – Meeting of the Minds

• Offer​ • Acceptance​
• An offer is a specific and definite • Acceptance must be unconditional​
proposition manifesting the • Acceptance must be communicated
offeror‘s intention to be bound​ to the offeror​
• Distinguish from an invitation to • If the purported acceptance
treat which are a means of contains new terms it is a qualified
generating interest – e.g. the acceptance and treated as a counter
display of goods in a shop window offer
or advertisements​
• Terminology – offeror / offeree
 Example

• Arnold has decided to try and sell his car by parking it outside his house with
a notice on the windscreen stating „For sale, pristine condition, one owner –
£4,750 or nearest offer. Please call at number 34 or telephone 713850 only​
• On Monday at 9.oo am Betram sees the car but as he is late for work he is
unable to stop. He telephones Arnold and makes an offer of £4500 which
Arnold says he will consider​
• On Monday afternoon Arnold decides to accept Betram‘s offer and posts a
letter at 2.30pm to Bertram‘s business address saying „ I agree to sell on your
terms. Because of the lower price can you pay cash“
 The Postal Rule

• The Postal Rule is an exception to the general rule that

acceptance must be communicated to the offeror.
• Under the Postal Rule communication is on posting​
• The Postal Rule applies if the letter is properly addressed​
• The Postal Rule must not be excluded in the offer terms​
• The Postal Rule will apply if it is a reasonable means of
communication
 Revocation

• ​Example : On Monday at 4.30pm • Acceptance can only be revoked

Arnold telephones Betram‘s prior to communication​
business address leaving a message • Acceptance has only been
– „Ignore letter you will receive – successfully revoked if Bertram
deal off.“ Bertram is away on listened to the answering machine
business and only listens to the prior to the receipt of the letter
tape on Wednesday evening​
• Has the acceptance been
successfully revoked?
 Consideration – Basic Principles

• A contract will only be binding under English law where something of value,
i.e. consideration, is given in exchange for the promise made​
• The courts do not investigate the adequacy of consideration and the relative
values exchanged provided that there is some consideration supporting the
bargain​
• Consideration must be contemporaneous with the transaction contemplated
by the parties. If the act constituting consideration is performed before any
promise to pay, consideration is past consideration and unenforceable​
• Gratuitous promises are unenforceable except where executed by deed
 Consideration - Examples

F is planning an open air rally to publicise his newly formed political party. G, a
prominent supporter of the party writes to F saying that he „hopes the rally will
be the first step towards putting some backbone into the country“ and that he
will provide £10,000 to help with expenses.
Subsequently he informs F that he cannot pay as his business is not prospering.
Is the promise enforceable?
 Intention to create legal relations

W agrees to fly an aircraft over the rally trailing a banner

showing the party‘s emblem of the all-seeing eye. W declines
payment saying his commitment to the party will be reward
enough.
W finds that his costs were more than anticipated and F
promises to reimburse him fully in due course.
Is the promise enforceable?
 Certainty of terms

• The formation of a contract depends on a meeting of the

minds as to its terms​
• In order to take effect essential terms of the contract must be
certain – e.g. the parties, subject matter, price​
• In practice the courts will attempt to give effect to
commercial contracts where possible
Mock Exam
WS 2023/24
Question 1: How do solicitors and barristers differ in terms of legal
education, rights of audience and public access? Why was ​
the Courts and Legal Services Act introduced in 1980? (8)

• Requirements are an undergraduate degree in law or an

undergraduate degree in any subject followed by a one-year
conversion course.
• Vocational training takes place at Bar school (barrister) or Law
school (solicitor) for one year followed by Pupillage (12 months)
(barrister) or Articles (24 months) (solicitor).
• Barristers have unlimited rights of audience before the courts but
limited access to the public. Solicitors have limited rights of
audience but unlimited access to the public.
Question 1: How do solicitors and barristers differ in terms of legal
education, rights of audience and public access? Why was ​
the Courts and Legal Services Act introduced in 1980? (8)

continued …..
• The Courts and Legal Services Act was introduced to break down
the monopolies held by Barristers in the field of advocacy and by
solicitors in the field of conveyancing. Under the act solicitors could
extend their rights of audience by obtaining a certificate of
advocacy and rights of conveyancing could be acquired certified
individuals or corporations other than solicitors
Question 2: What role do lay persons play in the magistrates court? Who
appoints them and on what criteria? (5)

• Most magistrates courts outside inner cities are presided over by 3

lay justices. They are unpaid volounteers, usually local counsellors.
They are appointed by the judicial appointments commission.
Criteria include good character, understanding and communication,
social awareness, maturity and sound temperament, sound
judgment and commitment and reliability. (If 2 criteria are named it
is sufficient).
Question 3: Describe the role of the judge and lawyer in the adversarial
system. How does the role of the jury in the US system differ from its role
in the English system? (5)

• The judge plays a passive role. He acts as an umpire and ensures

that the lawyers abide by the rules of law, procedure and evidence.
The lawyers play an active role. They research, prepare and present
the case at court. In the US the jury plays an active role in civil and
criminal trials. In the UK their role has diminished and their role is
now mostly in criminal cases.
Question 4: Explain the role of the House of Lords in the legislative
process. Who sits in the House of Lords? Is the number of seats fixed?
How many members does it currently have?​
(5)

• The House of Lords reviews and amends bills passed by the House
of Commons. It is unable to prevent bills passing into law. It is a
check on the House of Commons which is independent of the
electoral process. Lords Spiritual and Lords Temporal sit in the
House of Lords. The number of seats is not fixed. It currently has
850 members.
Question 5: What was the purpose of the Judicature Acts? (2)

• The fusion of the administration of the common law and the law of
equity but not the systems of law themselves.
Question 6: What are the burden and standard of proof in civil and
criminal proceedings ? (2)

• doubt or so that the Jury is sure of the defendant’s guilt. In civil

cases he who asserts must prove. The standard of proof is lower,
i.e. on the balance of probabilities
Question 7: What are practice directions? Give two examples (5)

• Practice directions are self-conferred powers. In 1966 the then

House of Lords (now UK Supreme Court) issued a practice direction
which allows it to depart from its own previous decisions when it is
just and reasonable to do so. There is a further practice direction
which allows a crown court judge to accept a majority verdict from
the jury after 2 hours and 10 minutes of deliberation if after that
time they are still unable to reach a unanimous verdict.
Question 8: Give reasons for and against the strict application of the
doctrine of binding precedent. (3)

• Arguments for the doctrine of binding precedent are that it saves

judicial time and energy, makes legal decision making predictable
and ensures that people are treated alike in like circumstances.
Arguments against are that it causes judicial laziness, is backward
looking and stifles creativity and is inflexible and unfair.
Question 9: What is the ordinary meaning approach? Explain using the
case of R v Hillingdon London Borough Council Ex Parte Pulhofer as an
example. What is the justification for this approach? (5)

• Where the meaning of the words used by the statute is plain and
unambiguous that meaning must be applied. It is not for judges to
invent fancied ambiguities to avoid unjust or immoral consequences.
In the Pulhofer case Mr Pulhofer applied for housing benefit which will
not be granted if the applicant is occupying accommodation. Mr
Pulhofer argued at court that the absence of sanitary facilities justified
the grant of the benefit. The court held that the term accommodation
did not automatically include sanitary facilities. Therefore, for the
purpose of the Housing Act Mr Pulhofer was occupying
accommodation and as a result was not entitled to housing benefit.
Question 10: What is the highest court in England and Wales. When was
it created and why? (4)

• UK Supreme Court. Created by the Constitutional Reform Act 2005.

Formerly the highest court was the House of Lords which as a part
of the judicature and the legislature contravened the theory of
separation of powers.
Question 11: The JLU Giessen is planning a week long international moot
court competition in summer 2017. A local law firm promises to support
the event by donating prize money in the sum of 10,000€. Subsequently
it informs the JLU that it is unable to make the conation as business is not
prospering as anticipated. Is the promise enforceable? (4)

• The promise is not enforceable as it is not supported by

consideration. A contract will only be binding under English law
where something of value (consideration) has been given in
exchange for the promise made. Here the promise is gratuitous.
Such promises are only enforceable by deed.
 Vielen Dank für
Ihre Aufmerksamkeit