Law Assignment

FOUNDATION IN LAW – 2013

English Legal System Assignment

Yong Suan Kai

Question 1 (a) Briefly explain the history of the English common law prior to the Norman Conquest in 1066. (5 marks)

(b) State the developments of the common law after Norman Conquest in 1066. (6 marks)

(c) Explain the drawbacks of the common law system in England and Wales. (7 marks)

(d) What are the effective developments that have taken place to overcome the problems faced by the common law system? (7 marks)

Q1(a) Prior to the Norman Conquest of England in 1066, there was no unitary, national legal system. Before 1066 the English legal system involved a mass of oral customary rules, which varied according to region. The law of the Jutes in the south of England, for example, was different from that of the Mercians in the middle of the country. Each county had its own local court dispensing its own justice in accordance with local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to show their guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other ‘test’ of veracity. If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed. Unlike continental civil law, the English system does not originate from any particular set of texts but from what has been called ‘tradition expressed in action’. It began as customary law used in the King's court to settle disputes and conflicts which affected the monarch directly. To begin with, these only included the graver crimes which became ‘Pleas of the Crown’. After the Norman invasion there were still many different types of court apart from the royal court . The stannary (tin mining) courts of Devon and Cornwall, the courts of the royal hunting forests, for example but principally, in potential rivalry with the royal court, were the feudal and manorial courts. It was during Henry II's reign that the clerics in his court began specialising in legal business and acting in a judicial capacity. Clerics were part of the King's royal entourage.
(305 words)
Q1(b)
After the Norman Conquest in 1066, a more organised system of courts emerged. The idea was to standardise the law. William the Conqueror set up the King’s Court(Curia Regis) and appointed his own judges. Other than the central court, judges were sent to major towns to decide any important cases. Later Henry II (1154-1189) divided the country up into ‘circuits’ or areas for the judges to visit. Henry II institutionalised common law by creating a unified court system ‘common’ to the country through incorporating and elevating local custom to the national level, ending local control, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate criminal accusations and civil claims. Judges of the realm went on regular journeys throughout the country bringing the King's justice to every citizen. Their aim was that there should be a common system of law throughout the land, hence the laws became known as the common law. In the expansion of the King's legal powers, an important role was played by the clerics. They developed a range of claim forms, called writs, and established procedures which, perhaps significantly, gave them greater importance and provided them with a generous income. Another important development, for example, was the expansion of the ‘King's Peace’. This was the monarch's, as opposed to a local lord's, right to deal with any local disorder or crime. Another reason the royal courts obtained a lot of business and thus power was the interpretation given to the Statute of Gloucester (1278) by the royal judges. This statute provided that no cases involving an amount of less than 40 shillings should be brought in the royal courts, but that they should be tried before local tribunals. The judges interpreted this to mean that no personal actions to recover a sum greater than 40 shillings could be commenced in the local courts, thus reserving all important cases for themselves. It is relevant here that the judges were anxious to attract litigants because their fees varied with the amount of business done.
The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in the principles provided by past court decisions, as contrasted to a system which is based solely on Acts of Parliament. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the King was above the law. Today it means that acts of governmental agencies and ministers can be challenged in the courts.
(444 words)

Q1(c) The common law gradually changed from a dynamic and adaptable system to one that was excessively formalised, inflexible and inadequate. Among the defects of common law were that it was inflexible as actions had to be begun by writ but there were only a limited range of writs. Hence, only certain cases were recognised and those which were not within the scope of writes were dismissed. Furthermore, the common law did not recognize rights in the property other than those of strict legal ownership. Nor did it recognize security for loans (mortgages) or the right of third parties in general. The common law courts had no power of enforcement. Also, it did not allow any form of oral evidence. On top of that, under the common law, legitimate grievances were often lost owing to procedural defects and technicalities. Besides that, the common law was rigid as a result of binding precedent. The tools now available to avoid the effects of precedent such as distinguishing and overruling were not available then. Other than that, the only remedy provided by the common law were damages(monetary compensation), which were inappropriate in certain cases. This led to injustice and the need to remedy the perceived weaknesses in the common law system. The more general a rule, the less likely it is to do justice in all the particular cases to which it applies. Moreover, an attempt to construct in advance the qualifications to the rule necessary to do justice in all cases would lead to a system of rules too complex, even if all the problems could be foreseen. Lastly, the common law is also expensive.
(272 words)

Q1(d) The most significant development in overcoming the drawback of common law is the introduction of equity. Equity created maxims and brings in new rights and equitable remedies. Maxim are broad statement of principles, the truth and reasonableness of which are self-evident principles. They are flexible in nature with the aim of doing justice to both side of the parties. They are universal in all courts of the world. Due to these flexible rules, it can fill in the gap in common law.
Equity will not suffer an injustice and equity acts in personam are the two maxims which form the primary foundations of equity. The first maxim explains the whole purpose of equity, while the second highlights the personal nature of equity. Equity looks at the circumstances of the individuals in each case and fashions a remedy that is directed at the person of the defendant who must act accordingly to provide the plaintiff with the specified relief. Unless a statute expands the powers of an equity court, it can make decrees that concern property only indirectly, phrasing them as decrees against persons. It is said that these are the oldest two maxims of equity. All others are consistent with them. An example of maxim is delay defeats equity. This meant that a claimant should have his right enforced as soon as possible, as prolonging the enforcement of rights would prevent him from obtaining an equitable remedy. In Leaf v International Gallery, as 5 years was passed since the purchase of the painting, the court did not allow the claimant to rescind the contract. Further example of maxim shall be discussed along with promissory estoppel.
Besides these rules, equity enabled litigants to enforce their rights through equitable remedies, such as injunction, rescission, rectification, and specific performance. Injunction is an order from the court. This order can be made in two form, i.e. mandatory injunction and prohibitory injunction. A mandatory injunction is a court order compelling the defendant to do something; whereas a prohibitory injunction is a court order restraining the defendant to do something. Upon serving this order, the defendant may be required to do something through mandatory injunction, such as compelling the defendant to break down the entire building which cause discomfort to the claimants or through prohibitory injunction, preventing the defendant not to make loud noises at night. A specific performance is an order from the court to a party in a contract to perform his or her obligations in the contract that was promised. Hence, upon obtaining this court order, the aggrieved party can have the contract be completely carried out as promised. This remedy is suitable for instances involving land matter as all lands are unique to each other. Rescission, is a remedy sought by parties when they would like to be returned to the original position after a contract was entered. This is usually due to the parties being misrepresented and was induced to enter into a contract. Upon successfully obtaining this remedy, the parties will be restored into their pre contractual position, and the contractual obligation will not be bore by the parties. in whittington v Seal-hayne, Mr. Whittington, due to a fraudulent transaction between the representor and him, sought to rescind the contract he was bound as the place he rented was unfit for his purpose, where he wish to return to the position as if the place was not being rented yet. Another remedy by equity is rectification, which is the correction of incorrectly transcribed contract. Through this remedy, parties can alter the terms of the contract entered in order to reflect what they really intended it to be. In 1970s, two new injunctions were introduced. These are known as mareva injunction and anton pillar’s order. a mareva injunction or freezing order is given to prevent the removal of assets from the jurisdiction of the courts by freezing the assets of a party. The anton pillar's order or search order is to prevent a defendant to dispose of evidence. this is usually issued before the court proceedings, however it may sometimes issued after the court proceedings.
Through equity also, a new doctrine, known as the doctrine of promissory estoppels was introduced. This was done in Central London Property Trust v High Tree House by Lord Denning.
Besides introducing new remedies in the court system, equity also recognises some rights which were previously not in common law. Firstly, equity recognises the right of the beneficiary under the law of trust. This is because some properties may be best upon different people in a different way at the same time. Hence, unlike common law which recognises legal ownership only, equity recognises dual ownership, the legal and the beneficiary’s ownership. This right enabled trust to be set up, such as pension funds by the older people to the younger member in their family. Another example of rights acknowledged by equity is the right of the mortgagor from the morgagee to redeem his property upon the final payment of principle and outstanding interest. This shows that equity recognises the right of redemption by the mortgagor, which unlike common law that recognised only the legal ownership. This right enabled many people now to purchase their property with the help of a mortgage.

In conclusion, many remedies were introduced in order to minimise the inadequacy that arose from common law. These new remedies enabled litigants to enforce their right through better court orders. Hence, it can be safely conclude that the problems of common law has been effectively resolved by the courts introducing equity into the English legal system.
(931words)