Tag Archives: UK

IEL 9: The term “Common law”/Der Begriff “Common Law”

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The meaning of the term “common law”

This term has at least four different meanings.

1. (in contrast to local law) The law common to the whole of England after 1066, as opposed to local law (which had existed before 1066 and continued to exist to some extent after 1066). This was the original meaning of the term. This common law was the law made in the King’s (or Queen’s) courts. E.g.

The common law was developed gradually over a period of time, beginning in 1066. Eventually it became a rigid system and ceased to develop to any great extent.

The term is only used in connection with legal history.

2. (in contrast to legislation) Law made by the decisions of judges, as opposed to legislation (statutes), which is law made by Parliament. This meaning arose because the law of England was often made by judges. Another expression with a similar meaning is “case law”: much of English law is case law. E.g.

Murder is a common-law offence ( = its definition is contained in an old report of a legal case where the judge defined the offence of murder in the course of giving his opinion). Theft, on the other hand, is a statutory offence (its definition is laid down in a statute, the Theft Act 1978).

3. (in contrast to equity) The law developed by the old common law courts, mainly between the 12th and 14th centuries, as opposed to equity, a separate legal system which grew up later, and was developed first by the Chancellor and later by the Court of Chancery). E.g.

The common law became so rigid that people used to apply to the Chancellor for a remedy. As a result, equity was developed. However, equity eventually became just as rigid as the common law (or: just as rigid as the law).

At law trusts were not recognized, but in equity they were.

Legal remedies, equitable remedies

4. (in contrast to other legal systems) The law of England and Wales and all other legal systems based on it. E.g.

The USA, England and Australia are all common-law countries

Note also the expression “a common-law wife” ( = the woman a man is living with, without being married). This term is used in England without any legal significance, but in some US states and in Scotland there is a form of legally recognized common law marriage (cohabitation with habit and repute).

Cat woman fined/Geldstrafe für Katzenmisshandlung

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No doubt all readers saw the video of Mary Bale stroking a cat and then dumping it in a wheelie bin, whence it was reclaimed 15 hours later. Just in case not, here’s a short video with English soundtrack and German subtitles (from the Swiss 20 Minuten news programme).

Yesterday Mary Bale was fined (Independent report).

A woman who was caught on CCTV dumping a cat in a wheelie bin was fined £250 today after pleading guilty to causing unnecessary suffering to the animal. …

Bale, who appeared close to tears, was fined £250 plus £15 victim surcharge and costs of £1,171.4p.

She was also banned from keeping or owning animals for the next five years.

District judge Caroline Goulborn told Bale the potential of the offence to have caused harm to the cat was substantial, but in reality it had not been hurt.

Just a bit on the legal details: A district judge is what used to be called a stipendiary magistrate. Most magistrates’ courts, which deal among other things with petty crime, have a bench of three lay magistrates, but in big towns there are court with just one stipendiary magistrate – now called a district judge – who is legally qualified and so doesn’t need legal advice from a clerk nor to withdraw and deliberate as a bench of magistrates do.

In England and Wales, prosecutions are made not only by the Crown Prosecution Service, but by other bodies and even individuals. If the CPS had prosecuted, the costs would have been about £1,100 less. This prosecution was by the RSPCA, and according to the Magistrate’s blog, Cash in the Kitty, the RSPCA just claimed all the costs it could think of.

Lawyers’ costs compared/Anwaltskosten England und Deutschland

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The Jackson Report on the reform of civil litigation costs in the UK was published in January 2010.

The final report and the two volumes of the preliminary report can be downloaded here.

Interestingly, at the end of the second volume of the preliminary report there are descriptions of the system in other countries, for instance Chapter 55: Germany, pp. 555 to 565.

1.1 The German rules of civil procedure contemplate cost shifting, albeit according to well-defined scales for recovery. The effect may be that a successful litigant is entitled to recover a smaller proportion of its actual fees than would be recoverable in England and Wales.
1.2 The German system permits the use of contingency fees only in limited circumstances, namely where a claimant does not have the means to retain lawyers for his case. Legal aid is available in certain civil cases.
1.3 In Germany, civil litigation is managed by the court so that it controls the proceedings and the evidence that is brought before it. One method by which the court does this is to appoint experts to assist the court on relevant factual issues, rather than leaving it to the parties to adduce their own expert evidence.

Useful footnotes too:

According to German Civil Procedure Code section 3(1), the value of the dispute is to be determined by the court in its “absolute discretion”. I am advised, however, by senior German judges that in practice no discretion is involved when the litigation concerns quantified or readily quantifiable claims.

Interesting reading and good for vocabulary too.

Returning to the UK, the shadow on the horizon is LPO – Legal Process Outsourcing, which will permit some work to be outsourced, for instance to India.

(Via the euleta list at Yahoo Groups).

IT in Supreme Court

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In the Times Online, Richard Susskind describes the IT systems used or to be used in future in the new Supreme Court. So the new building has done some good!

Fixed cameras are installed (banned in other courts in England, Wales and Northern Ireland).

Documents discussed to be shown on screens.

The three courts are also equipped with document display systems. Elegant, black, flat, high-resolution monitors sit before all judges. When barristers argue their cases, the precise pages under discussion appear on the screens. The judges do not need to search for paper-based folders and documents. This technology alone can cut hearing times by a quarter.

Justices can use laptops and mark up documents on them.

Unless permission is given, everything must be filed both on paper and electronically.

Information for public online:

What about the public and the lawyers? Any web user can find out the status of cases before the court. Details are fed from the case management system to the website (www.supremecourt.gov.uk), so people can view summary information and lawyers peruse in greater detail.

Hope it all works!

(Tweeted by Nick Holmes)

Refresher/Sonderhonorar für Barrister

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The Oxford English Dictionary has a word-of-the-day service. Today’s word is refresher, and one meaning is the one that sprang to mind immediately:

Dietl-Lorenz:
refresher Sonderhonorar für den Anwalt (Br barrister) (bei längerer Verhandlungsdauer)

Romain
refresher außerordentliche Anwaltsgebühr (bei langandauerndem Prozess bzw. mehrtägiger Verhandlung)

OED:

2. Law.

a. An extra fee paid to counsel when a case lasts longer than originally expected or allowed for.
1796 Attorney & Agent’s New Table of Costs (ed. 5) 222 Refresher to Mr. Bearcroft. 1831 F. REYNOLDS Playwright’s Adventures vi. 108 He also knew that barristers..can only be kept alive by refreshers. 1881 Times 19 Feb. 10/3 It is therefore recommended that daily refreshers should be abolished, as being one of the principal causes of the undue lengthening of trials. 1933 H. ALLEN Anthony Adverse xlix. 740 My retainer is reasonable, my refreshers modest, my reputation unblemished. 1991 Investors Chron. 26 July 68/3 The refreshers or daily fees will never be less than £1,000.

{dag}b. A revised brief. Obs. rare.
1852 T. DE QUINCEY Sketch from Childhood in Hogg’s Instructor 8 2/1 Every fortnight, or so, I took care that he should rec

eive a ‘refresher’, as lawyers call it{em}a new and revised brief{em}memorialising my pretensions.