English Legal Language Lesson Five from University of Milan

Statute Law vs. Common Law Principles

Rules derive from either legislation or case law, both of which are primary sources of law. However,

Parliamentary sovereignty: the Parliament is the supreme legal authority in the UK which can create or end any law, cannot limit its own future powers and has priority over judicial precedent

Common law doctrines can be repealed by legislation

When deciding a case which is covered by legislation, the Courts must interpret/construe the statutes (statutory interpretation) and apply them to the specific facts of the individual dispute

The doctrine of binding precedent applies to both principles of common law and judicial interpretation of statutes

Common Law and Precedent

Judicial precedent/case law/common law: the body of legal principles formulated by the superior courts in Common Law systems

Stare decisis/the doctrine of binding precedent: judges are under a legal obligation/are bound to follow precedents, i.e. they must apply the same principles previously established by precedents to later, similar cases

It is a feature of the Common Law systems: for instance, even if legislation and opinions are written in English, there is no stare decisis in Louisiana (see U. MATTEI, Stare decisis, 1988, p. 339 ss.)

In Common Law systems, appellate judges are law-makers: if there is no legislation or precedent for a case (case of first impression), the appellate judge makes law by creating a new rule in deciding the case. That rule must be followed in later, similar cases.

Vertical and Horizontal Stare Decisis

Vertical effect: a court must follow any precedent from a court above in the hierarchy

Horizontal effect: appellate courts in the UK, other than the UK Supreme Court, are bound by their own precedents, with few technical exceptions (on which see R.E. CERCHIA, Il common law inglese, in A. CANDIAN, A. GAMBARO (a cura di), Casi e materiali per un corso di diritto privato comparato, Torino, 2015, p. 60)

English Courts Overview

Book, p. 218-219

In addition, note that:

• the Supreme Court also has jurisdiction in devolution matters and in matters relating to ECHR Convention rights
• there is no constitutional court, unlike Italy
• there is no constitutional judicial review of the acts of Parliament

The UK Judiciary: Supreme Court Justices

Supreme Court Justices: applications from those holding high judicial office for at least 2 years or practicing lawyers for 15 years > independent selection committee > Lord Chancellor > PM > formal appointment by the King

Constitutional Reform Act 2005 (CRA) s 27: '(5)Selection must be on merit. (5A)Where two persons are of equal merit- [ ... ] (b) [ ... ] the commission [may prefer] one of them over the other for the purpose of increasing diversity within the group of persons who are the judges of the Court'

CRA 2005 s 33: 'A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament'

Mandatory retirement age is 75

See also CRA 2005 s 34: their salaries may be increased but not reduced

Other UK Judges

Other judges: application from qualified lawyers or judges (requirements depend on the position) > Judicial Appointments Commission > Lord Chancellor > King

CRA 2005 s 63: '(2)Selection must be solely on merit. (3) A person must not be selected unless the selecting body is satisfied that he is of good character (4) [ ... ] where two persons are of equal merit, [the Commission may prefer] one of them over the other for the purpose of increasing diversity'

Senior Courts Act 1981 s 11: '(2) A person appointed to an office to which this section applies shall vacate it on the day on which he attains the age of 75 [ ... ]. (3) A person appointed to an office to which this section applies shall hold that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament'.

Senior Courts Act 1981 s 13: '[salaries] may be increased, but not reduced'

Permission to Appeal - UK Supreme Court

Constitutional Reform Act 2005, s 40: '(2) An appeal lies to the [Supreme] Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings. [ ... ] (6) An appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court; but this is subject to provision under any other enactment restricting such an appeal'.

RSC 10: 'An application for permission to appeal must be made first to the court below, and an application may be made to the Supreme Court only after the court below has refused to grant permission to appeal'

Supreme Court Appeal Criteria and Statistics

The Supreme Court grants permission to appeal only to those applications that raise an arguable point of law of general public importance which ought to be considered (see RCP 52.7A)

In 2022-2023, the Supreme Court received 153 applications for permission to appeal, decided 273, of which 70 were granted, received 2 devolution references and 2 appeals as of right, i.e. where permission to appeal was not required or had been granted by a lower court (see https://www.supremecourt.uk/docs/annual-report-2022-2023.pdf , p. 28)

Permission to Appeal - First Appeals

In genere, è necessario ottenere una permission to appeal dalla stessa Corte che ha emanato la sentenza che si vuole impugnare oppure dalla Corte che è competente a decidere l'appello

CPR 52.3: '(2) [ ... ] an application for permission to appeal may be made- (a) to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or (b) to the appeal court in an appeal notice. (3) [ ... ] where the lower court refuses an application for permission to appeal- (a) a further application for permission may be made to the appeal court [ ... ]'

CPR 52.6: '(1) [ ... ] permission to appeal may be given only where- (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. [ ... ]'

Permission to Appeal - Second Appeals

CPR 52.7: '(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of [ ... ] the High Court which was itself made on appeal [ ... ]. (2) The Court of Appeal will not give permission unless it considers that- (a) the appeal would- (i) have a real prospect of success; and (ii) raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it'.

Law Reports Prior to 1865

Prior to 1865, cases were reported in commercial reporters (nominate reporters) The English Reports (Eng. Rep.) is a reprint of many nominate reporters from 1220 to 1867.

Law Reports After 1865

After 1865, there are:

• the Official Law Reports published by the Incorporated Council of Law Reporting for England and Wales (ICLR):
  • Appeal Cases (AC)
  • King's/Queen's Bench (KB/QB)
  • Chancery (Ch)
• other reporters, e.g .:
  • Weekly Law Reports (WLR) , also published by ICLR
  • All England Law Reports (All ER)
  • Professional Negligence and Liability Reports (PNLR)

Citation of Authorities in Law Reports

Practice Direction (Citation of Authorities) [2012] 1 WLR 780: '6. Where a judgment is reported in the Official Law Reports (A.C., Q.B., Ch., Fam.) published by the Incorporated Council of Law Reporting for England and Wales, that report must be cited. These are the most authoritative reports; they contain a summary of the argument. Other series of reports and official transcripts of judgment may only be used when a case is not reported in the Official Law Reports. 7. If a judgment is not (or not yet) reported in the Official Law Reports but it is reported in the Weekly Law Reports (W.L.R.) or the All England Law Reports (All ER) that report should be cited. If the case is reported in both the W.L.R. and the All ER either report may properly be cited. 8. If a judgment is not reported in the Official Law Reports, the W.L.R, or the All ER, but it is reported in any of the authoritative specialist series of reports which contain a headnote and are made by individuals holding a Senior Courts qualification (for the purposes of section 115 of the Courts and Legal Services Act 1990), the specialist report should be cited. 9. Where a judgment is not reported in any of the reports referred to in paragraphs [6] to [8] above, but is reported in other reports, they may be cited.