Freequently Asked Questions

The English Common Law System

1. What is Common Law?

Common law has never been precisely defined. It is deduced from custom, convention or legal precedents, and interpreted in court cases by judges. Conventions are rules and practices which are not legally enforceable, but which are regarded as indispensable to the working of government. The common law forms a major part of the law of many nations including India, and especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting precedent derived from centuries of judgments by judges hearing real cases.

2. What is the difference between a common law system and a civil law system?

The primary difference is that, historically common law was law developed by custom even before there were any written laws and continuing to be applied by the Courts after there were laws too, whereas civil law develops out of Roman law of Justinian’s Corpus Juris Civils.
The actual difference between civil law and common law lies less in the mere fact of codification but rather in the approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. The Courts, therefore, base their judgments on provisions of codes and statutes, from which solutions to particular cases are derived. In common law countries, cases are the primary source of law, while statutes are seen as raids into the common law and thus interpreted narrowly.

In civil law jurisdictions, the weight accorded to judicial precedent is much less.

3. How has common law evolved in UK and how is it enforced?

Common law originally developed under the adversarial system in England from judicial decisions that were based on tradition, custom and precedent. The court system in England in the 11th century AD was very primitive and not founded on any principles of law. Trials would be brought on by ordeal and not conscience or justice.

In 1154, Henry II created a unified system of law, elevating local custom to the national level and instating a jury sworn to oath. It functioned on local knowledge rather than proof and evidence. By the 15thcentury AD, the Courts of Chancery were established to ensure prevalence of equity in judgments.

In the 18thcentury AD, the Courts of law and the Courts of equity were fused into 1. These courts worked on the principle of justice, equity, good conscience and took the help of customs and precedents. Thus, the concept of common law got deeply rooted in English law.

The promulgation and expansion of the law of torts is based on this very code of custom, justice and equity. It is one of the foremost applications of English common law. Though tort law remains uncodified but its principles are incorporated into statutes of consumer redressal forums, accident claims tribunal, and even a few civil and criminal codes.

4. Is authority of higher courts binding on lower courts?

Under all Common Law systems, even the UK, the doctrine of stare decisis and the rule of precedents binds the decisions of higher courts to the lower courts. Stare decisis means “to stand by things decided”. It is divided into 2 components:

1. First, is the rule that a decision made by a higher court is a binding precedent which a lower court cannot overrule.

2. Second, is the principal that a court should not overturn its own precedents unless there is a strong reason to do so and it should be guided by principles of lateral and lower courts. (This is purely advisory and can and has been ignored).

Vertical Stare Decisis: a common law system has trial courts, intermediate appellate courts and a supreme court. Lower courts are bound to follow precedents established by appellate courts for their region and Supreme Court. Appellate courts are bound to follow decisions of  Supreme Court.

Thus, the decisions of the House of Lords is binding on all courts subordinate to it. Decisions of the Court of Appeal are binding on the High Court, Crown Court, County Court in its region and so on. However, the House of Lords is not bound by its own decisions. They are purely advisory.

Constitutional Framework

1. Why doesn’t Britain have a written constitution?

The constitution of the United Kingdom is an area of uncodified law, consisting both of written and unwritten sources. There is no difference between ordinary statutes and law that is considered as ‘Constitutional law’. Thus, the Parliament can perform ‘Constitutional reform’ simply by passing acts of Parliament thereby changing or abolishing any unwritten or written element of Constitutional law. This is based on the concept of all sovereignty belonging to the parliament.

The British constitution has evolved over many centuries. Unlike the constitutions of the United States, France and many Commonwealth countries, the British constitution has not been assembled at any time into a single, consolidated document. Instead it is made up of common law, statute law and convention.

Of all the democratic countries in the world, only Israel is comparable to Britain in having no single document codifying the way its political institutions function and setting out the basic rights and duties of its citizens. Britain does, however, have certain important constitutional documents, including the Magna Carta (1215) which protects the rights of the community against the Crown; the Bill of Rights (1689) which extended the powers of Parliament, making it impracticable for the Sovereign to ignore the wishes of the Government; and the Reform Act (1832), which reformed the system of parliamentary representation.

The flexibility of the British constitution helps to explain why it has developed so fully over the years. However, since Britain joined the European Community in 1973, the rulings of the European Court of Justice have increasingly determined and codified sections of British law in those areas covered by the various treaties to which Britain is a party. In the process British constitutional and legal arrangements are beginning to resemble those of Europe.

2. How did Constitutional law emerge in the UK?

Constitutional law in the UK incorporates statutory law as the most important source of law.  Over the history of the UK there have been 3 statutes which have influenced the British to develop a branch of Constitutional law. They are:

1. The Magna Carta of 1215.

2. The Bill of Rights of 1689.

3. The Human Rights Act of 1998.

The Magna Carta was originally an English Charter from 1215. It is the most significant early influence on a long historical process leading to the rule of Constitutional law in England today. It required the King to renounce certain rights and respect certain legal procedures and to accept that the will of the king could be bound by law.

The Bill of Rights 1689 is an English Act of Parliament. It is one of the basic documents of English Constitutional law alongside the Magna Carta. It addresses the rights of Parliamentarians sitting in Parliament as against the Crown. The Bill of Rights was a major step in the evolution of governments in Britain towards Parliamentary supremacy and British progress towards a Constitutional Monarchy.

The Human Rights Act 1998 seeks to increase the power of and supplement the European Convention on Human Rights, first through adapting a legal system to avoid breaches of the convention and, second by making unlawful the breach of convention by any public (government) body.

The aforesaid Acts of Parliament and the Magna Carta are regarded as the source of all rights and principles which are treated as almost constitutional and which further lead to statutes being framed.

3. What was the Magna Carta?

The Magna Carta (Latin for ‘Great Charter’) is Britain’s best known constitutional document. In 1215 feudal barons forced the ‘tyrannical’ King John (1199-1216) to agree to a series of concessions embodied in a charter which became known as the Magna Carta. Sixty-one clauses set out a clear expression of the rights of the community against the Crown. The contents deal with the ‘free’ Church; feudal law; towns, trade and merchants; the reform of the law and justice; the behavior of royal officials; and royal forests.

The King was forced to fix his seal to the Magna Carta in a meadow next to the River Thames at Runnymede between Windsor and Staines. It is said that he behaved pleasantly to the nobles at the time, but as soon as he returned to his own chamber he threw himself on the floor in a mad rage.

Since that day the Magna Carta has become part of English Law and established the important principle that the King is not above the law.

Original copies of the charter exist in Salisbury Cathedral, Lincoln Castle and the British Museum in London.

Related links

• British Library – Magna Carta

4. When did Britain join the European Union and how many Members of the European Parliament does it have?

Britain joined the European Union in 1973, along with Denmark and the Republic of Ireland.

The European Union has four main institutions: the Council of Ministers, the European Commission, the European Court of Justice and the European Parliament. The European Parliament is a democratically elected body whose members are elected by the peoples of the 25 member nations every five years. Its main role is to scrutinise the activities of the EU institutions, pass the annual EU budget, monitor spending, and shape and decide on new legislation jointly with the Council of Ministers.

The European Parliament has 732 members (MEPs), 78 of whom represent the people of Britain. Britain is divided into 12 geographical regions with each region electing between three and 11 MEPs by proportional representation. Each MEP in a region represents each person living there.

5. How are laws amended?

Since entrenched “Constitution law” does not exist in the UK, the Constitution is flexible as opposed to rigid Constitutions. Entrenchment refers to whether the Constitution is legally protected from modification without a procedure of constitutional amendment. Un-entrenched Constitutions simply involve  amending the statutes with a simple majority in Parliament.

In theory, its flexibility makes it responsive to political and social change, especially through political principles expressed in conventions.

A new law is introduced in the Parliament as a Bill and is passed by the Parliament if found with in the framework of British law i.e. not violating Constitutional Conventions and not flouting common law norms.

Political System

1. What is the Parliament? And what are its Constituents?

Parliament is the law-making body of the British people. It consists of three elements: the Monarchy, the House of Commons and the House of Lords. They meet together only on occasions of ceremonial significance, such as the state opening of Parliament, although the agreement of all three is normally required for legislation.

House of Commons

The House of Commons consists of 659 elected members called Members of Parliament or MPs. Election to the House of Commons is an important part of Britain’s democratic system. The main purpose of the House of Commons is to make laws by passing Acts of Parliament, as well as to discuss current political issues. Some of the liveliest sessions in the Commons debating chamber take place at Prime Minister’s Question Time when MPs have the opportunity to quiz the Prime Minister on burning issues of the day.

House of Lords

The House of Lords currently consists of 674 non-elected members (hereditary peers and peeresses, life peers and peeresses and 24 archbishops and senior bishops of the Church of England). Its main legislative function is to examine and revise bills from the Commons, but the Lords cannot normally prevent proposed legislation from becoming law if the Commons insists on it. It also acts in a legal capacity as the final court of appeal. In recent years the House of Lords has undergone a process of reform to make it more democratic and representative. As a first step, the rights of some 750 hereditary peers to sit and vote in Parliament solely on the basis that they inherited their seats were removed. The remaining 92 hereditary peers are allowed to sit temporarily in the transitional chamber until the full reform programme is in place. The next phase of the House of Lords reform would remove the remaining hereditary peers and establish an independent Appointments Commission. A new Supreme Court is planned to replace the Law Lords as the highest court in the UK.

2. How are Elections to the Parliament Conducted?

General elections are held after Parliament has been ‘dissolved’, either by a royal proclamation or because the maximum term between elections – five years – has expired. The decision on when to hold a general election is made by the Prime Minister.

For electoral purposes Britain is divided into constituencies, each of which returns one MP to the House of Commons. MPs are elected by the relative majority method – sometimes called the ‘first past the post’ principle – which means the candidate with more votes than any other is elected.

In elections to the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly and the European Parliament forms of proportional representation (PR) are used.

3. Who are eligible to Vote?

All British citizens together with citizens of other Commonwealth countries and citizens of the Irish Republic resident in Britain may vote, provided they are aged 18 years or over and not legally barred from voting. People not entitled to vote include those serving prison sentences, peers and peeresses who are members of the House of Lords, and those kept in hospital under mental health legislation.

Voting is by secret ballot. At a general election the elector selects just one candidate on the ballot paper and marks an ‘X’ by the candidate’s name. Voting in elections is voluntary. In the June 2001 general election 59.4 per cent of the electorate voted, compared with 72 per cent in 1997.

Any person aged 21 or over who is a British citizen or citizen of another Commonwealth country or the Irish Republic may stand for election to Parliament, provided they are not disqualified. People disqualified include those who are bankrupt, those sentenced to more than one year’s imprisonment, members of the clergy, members of the House of Lords, and a range of public servants and officials. Approved candidates are usually selected by their political party organisations in the constituency which they represent, although candidates do not have to have party backing.

The leader of the political party which wins most seats (although not necessarily most votes) at a general election, or who has the support of a majority of members in the House of Commons, is by convention invited by the Sovereign to form the new government.

Related links

• United Kingdom Parliament – House of Commons
  
• United Kingdom Parliament – House of Lords

4. How are Britain's regions governed? 

The people of Scotland and Wales now have greater control over their own affairs thanks to the establishment of a Scottish Parliament in Edinburgh and a Welsh Assembly in Cardiff.

The Scottish Parliament has 129 members – 73 directly elected on a constituency basis and 56 elected by proportional representation. The parliament runs for a four-year fixed term and is responsible for functions which were the responsibility of Scottish Office Ministers. It is able to make laws on a whole range of matters, including health and education, and to raise or lower the rate of income tax by three pence in the pound. Scotland continues to elect MPs to Westminster.

The Welsh Assembly has 60 members, directly elected every four years. It is responsible for functions previously carried out by the Welsh Office. It is able to amend laws passed at Westminster which affect devolved areas.

One of the new institutions created following the Belfast Agreement of April 1998 was an Assembly of 108 members with a similar range of legislative and executive powers to the Scottish Parliament. The Northern Ireland Executive comprises of a First Minister and Deputy First Minister, and 10 Ministers, allocated in proportion to party strengths represented in the Assembly.

There are Committees for each of the main executive functions of the Northern Ireland Executive. The membership and chair of each Committee is again allocated in proportion to party strengths. These Committees have scrutiny, policy development and consultative functions. Elections were held in June 1998, a First Minister and Deputy First Minister were elected and agreement reached on most of the detail of institutions dealing with relationships between the Republic of Ireland and Northern Ireland.

The Executive and the institutions were first set up on 2 December 1999 but were suspended when direct rule was reintroduced by the Secretary of State for Northern Ireland on 11 February 2000. The Executive and institutions were re-established following negotiations between all the parties on 29 May 2000. Devolution was suspended on two further occasions, on 10 August and 21 September 2001 for 24 hours on each occasion. The Secretary of State for Northern Ireland again suspended the Northern Ireland Assembly on 14 October 2002 and Northern Ireland has been returned to direct rule.

In 2000 the Government established a London-wide authority for the capital. This consists of a directly elected Mayor who is able to influence policy on transport, economic development, strategic planning, the environment and culture, and a separately elected Assembly of 25 members with powers to question the Mayor on his or her activities and to investigate issues on behalf of Londoners.

Related links

• Scottish Executive
  
• National Assembly for Wales
  
• Northern Ireland Assembly

5. What are the origins of the names of the main political parties?

The Conservative and Unionist Party dates back to the Tory Party of the late eighteenth century. This broadly represented the interests of the country gentry, merchant classes and official ad-ministerial groups. After Britain’s 1832 (electoral) Reform Act, members of the old Tory Party began forming ‘conservative associations’. The name Conservative was first used as a description of the Party in the Quarterly Review of January 1830, because the Party aimed to conserve traditional values and practices. The Conservative Party today is the leading right-wing party. The term ‘Tory’ is still used today to refer to somebody with conservative political views.

The original title of the Labour Party, the Labour Representation Committee, makes the origins of the party clear – to promote the interests of the industrial working class. In 1900 the Trades Union Congress co-operated with the Independent Labour Party (founded 1893) to establish The Labour Representation Committee with Ramsay MacDonald as First Secretary. This took the name Labour Party in 1906.

The Liberal Party emerged in the mid-nineteenth century as a successor to the historic Whig party. ‘Whig’ was originally a Scottish Gaelic term applied to horse thieves! In the late eighteenth century the Whig Party represented those who sought electoral, parliamentary and philanthropic reforms. However, the term ‘Whig’ does not survive today. After 1832 the mainly aristocratic Whigs were joined by increasing numbers of middle-class members. By 1839 the term Liberal Party was being used, and the first unequivocally Liberal government was formed in 1868 by William Gladstone. In 1988 the old Liberal Party and the Social Democratic Party (SDP) merged into a single party called the Liberal Democrats.

Related links

• Conservative Party
  
• Labour Party
  
• Liberal Democrats

6. Who is the Speaker and why is he so called?

Contrary to what the title would imply, the Speaker of the House of Commons does not speak – that is, he or she does not make speeches or take part in debates. The office has been held continuously since 1377 and originally the Speaker spoke on behalf of the Commons to the Monarch, hence the name. The role is now largely ceremonial and today the Speaker’s central function is to act as chairperson of the House, maintaining order in a debate. He or she may not vote other than in an official capacity – that is when the result of a vote is a tie. Even then, he or she is not allowed to express an opinion on the merits of the question under debate and must vote in such a way as to give the House another chance to decide.

The Speaker has three deputies – the Chairman of Ways and Means and two other Deputy Chairmen. Like the Speaker, they can neither speak nor vote other than in their official capacity. The Speaker is neither a Minister nor a member of any political party, but he or she is still a Member of Parliament, representing a constituency.

The choice of Speaker is by election, with Members of Parliament each having one vote.

“May it please Your Majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here, and I humbly beg Your Majesty’s pardon that I cannot give any other answer than this to what Your Majesty is pleased to demand of me”

Speaker Lenthall’s reply to King Charles I when on 4 January 1642 he entered the Commons chamber to arrest five MPs for treason. Speaker Lenthall thus established the principle that he was the servant of the Commons, not the King.

Related links

• United Kingdom Parliament – Speaker of the House of Commons

7. What is a ‘whip’ in Parliament?

The term ‘whip’ is said to owe its origin to the ‘whippers-in’ – people who keep the hounds in order at fox-hunting meets. Parliamentary whips are supposed to be similar disciplinarians, controlling the pack of MPs in their party!

Government whips are all Ministers of the Crown. The principal task of the Chief Whip is the management of government business in the House. He or she must try to ensure that, in spite of the activities of the opposition; Parliament has passed all the legislation and done all the tasks which it had planned during that session.

Whips in the two main parties are organised by subject and by region. They monitor opinions inside their party and report back to the leadership, maintaining valuable day-to-day contact between ministers and their backbench supporters.

‘The Whip’ also refers to a document sent out weekly to MPs detailing the forthcoming business of the House. Items are underlined once, twice or three times to indicate their importance to the party leadership. When a ‘three-line’ whip is issued, the leadership is letting MPs know that it expects them to turn up and vote on the matter under discussion!

COURT STRUCTURE

1. How is the Court Structure determined in the UK and what is their setup?

The structures of the courts in all three jurisdictions within the United Kingdom are arranged according to the subject matter of cases brought before the courts rather than the source of the laws to be applied. The source of law did form the basis for a great deal of court structure until the end of the nineteenth century and even now has some influence.

Just like any other country following common law system, the United Kingdom also posses a hierarchal setup of courts, with the House of Lords being the highest court of appeal and courts such as the Court Of Appeal, The High Court, Crown Court, etc being subordinate to it. A diagrammatic representation of the setup is as follows:

2. How did the Constitutional Reform Act, 2005 affect the Court Set-up in UK?

The Constitutional Reform Act, 2005 has brought about the following changes:

1. The House of Lords which is the Highest Appeal Court in almost all cases in England and Wales will now be the ‘Supreme Court of the United Kingdom’.

2. The Supreme Court of Judicature of England and Wales is the most important superior court of England and Wales. It consists of:

• Court of Appeal
  
  
• High Court of Justice
  
  
• Crown Court

3. What is the jurisdiction of the Administrative Court?

The jurisdiction on the Administrative Court is varied, consisting of the administrative law jurisdiction of England and Wales as well as a supervisory jurisdiction over inferior courts and tribunals.

The supervisory jurisdiction, exercised in the main through the procedure of Judicial Review, covers persons or bodies exercising a public law function - a wide and still growing field. Examples of the types of decision which may fall within the range of Judicial Review include:

• Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;



• Certain decisions of the immigration authorities and Immigration Appellate Authority;



• Decisions of regulatory bodies;



• Decisions relating to prisoner's rights.

4. What does the Chancery Division do?

The work of the Chancery Division covers a broad spectrum. It deals with many different matters between including:

• Landlord and tenant and disputes concerning property
  
  
• Intellectual Property,
  
  
• Patents
  
  
• Trademarks

5. What does the Court of Appeal Do?

The Court of Appeal, which sits in London at the Royal Courts of Justice, consists of two divisions:

(i) The Civil Division, which hears appeals from:

• The three divisions of the High Court (Chancery, Queen's Bench and Family Division)



• From the County Courts across England and Wales,



• From certain Tribunals such as the Employment Appeal Tribunal, the Immigration Appeal Tribunal, the Lands Tribunal and the Social Security Commissioners.

The Court of Appeal is the highest court within the Supreme Court of Judicature, which also includes the High Court and Crown Court.

In the House of Lords, as compared with the Court of Appeal, there are only 12 Lords of Appeal in Ordinary ("law lords"), who usually sit in panels of five judges.

The Court of Appeal normally sits in up to 12 courts in the Royal Courts of Justice.

Sir Anthony Clarke, the Master of the Rolls, is the President of the Court of Appeal, Civil Division.  He is also Head of Civil Justice.

Lord Justice Brooke is the Vice-President of the Court of Appeal Civil Division.

There are 37 other regular judges of the Court of Appeal whose title is Lord/Lady Justice. Many of them also sit in the Criminal Division of the Court of Appeal and in the Divisional Court of the Queen's Bench Division.

The other four Heads of Division also sit occasionally in the Civil Division of the Court of Appeal.  They are:

• Lord Phillips of Worth Matravers, the Lord Chief Justice of England and Wales, who is also the President of the Criminal Division of the Court of Appeal



• Sir Igor Judge, the President of the Queen's Bench Division



• Sir Mark Potter, the President of the Family Division



• Sir Andrew Morritt, the Chancellor

6. How is criminal justice dispensed?

There are 2 kinds of criminal trials: ‘summary’ and ‘on indictment’. A summary trial takes place in the Magistrate’s Court while an on indictment trial takes place in the Crown Court. However, despite these 2 venues, all criminal trials invariably commence in the Magistrate’s Court and then move upwards. In the Magistrate’s Court, a criminal case may begin either by the defendant being charged and brought forcibly before the magistrate or by being summoned.

There are 3 types of offences: ‘indictable only’, ‘summary’ and ‘either way’. Indictable offences are serious offences such as murder, rape and are referred to the Crown Court by the magistrate on the first appearance of the defendant before this Court. Summary offences are less serious ones such as motoring offences which are mostly decided in the Magistrate’s Court itself (over 90% cases) while only a few are sent to the Crown Court. Either way offences are intermediate offences such as theft and low value criminal damage, which may be tried either summarily (by Magistrates) or by Judge and Jury in Crown Court.

7. Where do appeals lie in criminal cases?

Those defendants who are dissatisfied by the verdict may be able to appeal:

• From the Magistrates’ Courts, there is an appeal to the Crown Court on matters of fact or law.



• From the Crown Court, it might be possible to appeal to the Criminal Division of the Court of Appeal on matters of fact or law



• Certain legal disputes arising in the magistrates’ courts or the Crown Court can be taken before the Divisional Court of the High Court



• Finally, matters of important legal dispute arising in the Crown Court or Divisional Court may be appealed to the House of Lords

However, the method of appeal from the Crown Court is a little more complex. When acting as an inferior court (i.e. hearing appeals from magistrates) appeals lie to Queen’s Bench division of the High Court and as a superior court (i.e. hearing trial on indictment) to the Court of Appeal or the House of Lords.

8. What sort of matters does the Crown court deal with?

The Crown Court deals with more serious criminal cases such as murder, rape or robbery, some of which are on appeal or referred from Magistrates' courts.

Trials are heard by a Judge and a 12 person jury. Members of the public are selected for jury service or may have to go to court as witnesses.

The Crown Court is based at 78 centres across England and Wales.

It deals with cases transferred from the Magistrates' Courts. It also hears appeals against decisions of Magistrate's Courts, and deals with cases sent for sentence from Magistrates' Courts.

9. Can an English citizen move the Court of Justice of European Communities?

This Court of European Communities was set up under the Treaty of Rome of 1957, by which the European Community was established. The Court sits in Luxembourg and consists of judges appointed by all 15 of the Member States (so there is one British judge). The Court has been made part of the English legal system by virtue of the European Communities Act 1972, section 3 of which states as follows

"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)."

Its intervention can arise in two ways under Article 177 of the Treaty of Rome. Firstly, "The Court of Justice shall have jurisdiction to give preliminary rulings concerning...the interpretation of this Treaty ... when such a question is raised before any court of tribunal of a Member State, that court or tribunal may, it if considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon." This means that any UK court, civil or criminal, can ask for its judgment on a point of Community law if it is felt to be an important point which is necessary for a decision. Secondly, "Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice." This means that where there is no further appeal from the national court (such as from the House of Lords, the case must be referred on points of Community law if they are in dispute.

Instituting a Case

1. What are the most common time of Civil Cases?

In civil cases, the litigation is commenced by a plaintiff (a private person or company or a public authority) against a defendant. The plaintiff must try to prove the liability of the defendant on the balance of probabilities. The sorts of claims arising in the civil courts are typically about contracts (most common of all), torts (civil wrongs such as the causing a road accident through negligence, damaging a person’s reputation through defamation, or affecting the enjoyment of their property through causing a nuisance such as by pollution) and land disputes. They can also deal with divorce and bankruptcy matters. The choice of court depends in most cases on the value of the claim.

Under the Civil Procedure Rules 1998, civil claims under the value of £5,000 are dealt with under the County Court, called the ‘Small Claims Track’. Claims between £5,000 and £15,000 capable of being heard in 1 day are allotted to the ‘Fast Track’ and claims over £15,000 to the ‘Multi Track’. These ‘tracks’ are labels only - the actual cases may be heard in County Court or High Court, depending on their value. Appeals from the County Court lie to the High Court or directly to the Court Of Appeal while appeals from the High Court lie to the House of Lords.

2. Does the High Court exercise jurisdiction in substantial civil cases?

More substantial civil claims (over around £25,000) are heard in the High Court (based in London but also with a few regional centers, often housed within Crown Court buildings). The action is begun by writ, which is accompanied by a statement of claim in which the details of the legal dispute is set out. The High Court is organized according to case type into Divisions. There are 3 divisions, viz.- the Family Division, the Chancery Division and the Queens Bench Division.

3. What does the Family Division deal with?

The Family Division deals with divorce and child welfare matters and also the administration of wills. Child welfare matters include both proceedings brought by child protection agencies, such as local authorities - about 17,000 in 1995. Parents and guardians may also make applications, for example about custody and access - 102,000 in 1995. There were also over 5,000 adoption orders. Divorce is mainly dealt with in the County Courts, but the High Court does hear a small number of complex, contested cases. The Family Division also oversees the uncontested administration of wills - a process called "probate". It authorizes the executors to act on behalf of the deceased person if it can be shown that all the papers are in order. There were about a quarter of a million grants of probate in 1995.

4. What does the Chancery Division deal with?

The Chancery Division considers complex matters such as disputes about wills, settlements and trusts, bankruptcy, land law, intellectual property (copyright and patents) and corporate laws. In 1995 nearly 11,000 general actions (mainly relating to land disputes) were begun. There were also 13,000 bankruptcy petitions and nearly 18,000 company cases (mainly relating to insolvency). Many of the company cases are dealt with in a specialist sub-Division, the Companies Court.

5. What does the Queens Bench Division deal with?

The Queen’s Bench Division deals with the remaining business not handled by the Family Division or the Chancery Division- disputes about contracts or torts or land. The Queen’s Bench Division has some specialist sub-Divisions, including a Commercial Court (dealing with large and complex business disputes; there were about 200 in 1995), a Crown Office List (dealing with actions against public authorities - about 4,000) and an Admiralty Court (shipping matters - about 500).

Legal Education In UK

1. How do I find out about the courses available?

To know about courses in the United Kingfom, you can visit the UCAS website at http://www.ucas.ac.uk/. (UCAS stands for the ‘UK Universities and Colleges Admissions Service’) . This website  is a specialised resource containing database of undergraduate courses, further education (including professional) and short courses.

You could visit Prospects website (http://www.prospects.ac.uk/) to get details of postgraduate courses and research, short courses and job-related training, as well as information on finance and funding.

2. How do I choose my Law Course?

To enable you to choose the appropriate law course, the rankings of law courses are available online. The rankings are based on quality of the course as well as the quality of research undertaken in UK law schools. You may visit any of the following ranking websites.

Guardian guide to law - ranks undergraduate courses in England and Wales by a teaching score made up of measures derived from the latest official statistics. You can create your own rankings by giving the six measures different weightings, according to your preferance.

Times Good University Guide - includes a law school league table

Quality Assurance Agency - undertakes periodical reviews of teaching in UK Universities for details see our information on quality assurance

3. I want to study law in UK. How do I apply?

HERO's information for international students pages outlines all the issues you should take into account and has a comprehensive set of links to sources of further information.

Click this link - http://www.hero.ac.uk/sites/hero/uk/studying/information_for_overseas_stude262.cfm

Solicitors

1. I qualified as a lawyer in India. Will my qualification be valid to practice in the UK?

Solicitors and barristers from England and Wales, Northern Ireland and the Republic of Ireland can practise in the UK without retraining. (The Law Society of Scotland has transfer tests for solicitors from England, Wales, Northern Ireland and other parts of the European Union who wish to requalify as Scottish solicitors). 

Lawyers from India can enrol as a solicitor after they pass the Qualified Lawyers Transfer Test (QLTT) . Qualified Indian lawyers generally have to clear just one head of the test, namely Professional Conduct and Accounts. It is a three-hour written examination, for which, lawyers must apply for a “certificate of eligibility” from the Law Society of England and Wales. A two-year practice is also required before an Indian lawyer can qualify as a solicitor. However, this requirement can be satisfied by a suitable period of practice in India, so there is no need for an Indian lawyer to take time out of his own practice to come to England. The Law Society determines on a case-by-case basis whether the practical experience obtained by a lawyer in India is sufficient to satisfy this practice condition. The Law Society for England and Wales has information on qualifying from overseas on their website (see the qualifying as a solicitor section).

2. What is the eligibility to appear for the Qualified Lawyers Transfer Test(QLTT) in India?

Indian lawyers will soon be able to qualify as Solicitors of the Supreme Court of England and Wales without having to travel to England to do so. It is expected that New Delhi or Mumbai would be the fourth city in the world to have its own QLTT Centre. The College of Law has been licensed by the Law Society to open two test centres for the Qualified Lawyers Transfer Test (QLTT) in India. The QLTT is the conversion examination, which enables overseas lawyers to qualify as solicitors. Indian lawyers have been eligible to clear the test in London for several years but now the QLTT will be held in India itself, providing a much cheaper and more convenient route to dual qualification. The College of Law will run the test in both Delhi and Mumbai in April and October 2006 and will provide preparatory tuition for candidates.

3. What is the difference between a barrister and a solicitor? 

The legal profession in Britain is divided into two branches: barristers (called ‘advocates’ in Scotland) and solicitors.

Solicitors undertake legal business for individual and corporate clients, while barristers advise on legal problems submitted through solicitors and present cases in higher courts. Certain functions are common to both – for example, the presentation of cases in lower courts. Barristers must pass professional examinations before being called to the Bar (Barristers are known collectively as the Bar), and they must then serve an apprenticeship with a qualified barrister for one year.

Solicitors must also pass professional examinations and serve a two-year period of apprenticeship, called ‘articles’, in a solicitor’s office. Once qualified in this way, a newly admitted solicitor is supervised for three years.

4. What are the CPD?

The Law Society now requires that every solicitor should be constantly updating their skills and knowledge, and that formally assessed training should not end with the training contract. Indeed, from 1998 all solicitors will have to undertake Continuing Professional Development (CPD). The requirement is 16 hours a year for the first three years after qualification and a total of 48 hours for each subsequent three-year period.

This CPD requirement can be met using a variety of methods including correspondence courses, courses based on television or video programmes and assessments based on editorial from journals. Many seminars and conferences are also accredited for CPD.

5. Who regulates Solicitors in UK?

Solicitors are in a position of trust. They provide advice on matters that are enormously important to their clients, so it is essential that their advice is expert, independent, efficient and courteous.  It is for this reason that the Law Society has been entrusted with powers to regulate the profession. The Law Society regulates and represents the solicitors’ profession in England and Wales and has a public interest role in working for reform of the law. 

The Law Society regulates Solicitors by setting the standards for qualifying as a solicitor, setting the rules of professional conduct , providing guidance on professional conduct, setting the requirements for continuing professional development, monitoring solicitors to make sure they comply with the rules, dealing with complaints about solicitors and help to resolve them and ‘investigate and, if necessary, discipline solicitors who don't meet the standards.

Barristers

1. Who are Barristers?

The legal profession in Britain is divided into two branches: barristers (called ‘advocates’ in Scotland) and solicitors.

Barristers advise on legal problems submitted through solicitors and present cases in higher courts. Barristers must pass professional examinations before being called to the Bar (Barristers are known collectively as the Bar), and they must then serve ‘Pupillage’ (an apprenticeship) with a qualified barrister for one year. In addition, barristers are now subject to certain requirements that they must meet in order to keep their practising certificates. CPD is usually in the form of courses or lectures.

2. What is a Pupillage?

Pupillage is the final stage of training to be a barrister. Although an aspirant will be a fully qualified barrister (and 'called to the Bar') on passing the BVC, pupillage is essential for all those who wish to practice; in the sense it's akin to the trainee solicitor's training contract. Without completing this year, they would not secure a tenancy (i.e., permanent place) within a set of chambers.

Usually, pupillage takes a year to complete, with the year divided into two six-month periods or 'sixes'. Each 'six' is spent in a set of chambers (although there are a small number of places in companies and other institutions) under the guidance and supervision of a junior barrister of at least five years' experience - who is the pupil master or mistress. It isn't uncommon for each 'six' to be spent in a different chambers and/or with a different pupil supervisor, and also, with competition for tenancies so high, even for a third 'six' to be undertaken.

3. What is the Bar Vocational Course?

The Bar Vocational Course (BVC) is the vocational stage of training that must be completed to become a barrister. It is mainly a practical course, for one year designed to provide training that is specific to the work of a junior barrister (a two-year, part-time course is currently only available at the Inns of Court Law School). Students are encouraged to participate in a range of activities (including mock trials, debating and extra mini-pupillages) that will help them to develop the necessary skills. By focusing over 60% of the course on the acquiring of relevant skills, the BVC helps prepare the Student for the 12-month pupillage (and beyond).

Most of the skills are taught through student participation and role-play. One day you might be producing draft recommendations and negotiating solutions to legal problems, and the next working through court procedures. The remaining 40% of the time is spent gaining further legal knowledge. Throughout the course, there is a constant emphasis on a professional approach to work and you will be expected to attend classes on professional conduct.

There are various course providers for the BVC. Applications for a place on the BVC must be made through the Bar Council's central applications system, BVC online at http://www.bvconline.co.uk/.

4. What is learnt during a Pupillage?

Pupillage is a form of apprenticeship. The year is an opportunity for a chambers to build on what the pupil has already learnt by combining academic and vocational experience with the day-to-day, practical work of chambers, including advocacy, drafting, and liaising with solicitors, clients and colleagues. Pupillage also gives chambers a chance to assess a pupil's prospects for tenancy.

Often, the two 'sixes' are very different experiences. Generally, the first 'six' is non-practical, and is largely spent observing and assisting the pupil-master or mistress. This involves being in court and attending conferences (meetings with solicitors), preparing drafts, and researching and reading up on case law. During the six pupil will learn how to be a barrister by comparing and contrasting their work with that of the pupil-master - how do the drafts differ and why? Was the case presented in court in a very different manner from the way they had planned? Were the dealings with solicitors as they had expected? If the first 'six' is completed satisfactorily, they will be certified (not certifiable!) as able to handle their own clients and cases. In stark contrast to the assisting and observing of the first, the second six will see them in at the deep end, officially practicing and taking on their own work, with all the responsibilities and pressures that this entails.

5. Where is a Pupillage Undertaken?

Competition for pupillage places is very high. Only around 50% of those that start the BVC will obtain a place.

The process of looking for a pupillage begins almost three years prior to when an aspirant hopes to begin. Normally aspirants are advised to start considering their options from the second year of their law degree (or the third year for non-law undergraduates) by attending legal careers fairs and applying for mini-pupillages and other relevant work experience for the forthcoming summer vacation. All pupillage providers must advertise all pupillage vacancies at http://www.pupillages.com/. Vacancies are divided into two types: OLPAS and non-OLPAS.

OLPAS took effect in March 2001, replacing the paper-based PACH clearing system. The aim is to centralize applications into two 'seasons' during which candidates can apply to chambers. The Summer season starts in March and the Autumn season opens at around September time. Using OLPAS an aspirant can apply to up to 24 pupillage providers each year using just one application form. There is no limit to the number of applications allowed through non-OLPAS providers.

The starting point when thinking about pupillage is to decide what area of law students likes to specialize in. They have to use the experience gained during their studies as well as any work experience, especially mini-pupillages, to help their decision. Also, there's no substitute for reading as much as they can about the various work areas and different chambers, attending pupillage fairs (contact the Inns of Court School of Law for dates) and generally keeping themselves as informed as possible.

6. What is a tenancy?

Barristers working within a set of chambers are self-employed and are known as tenants. Tenants therefore work under the 'umbrella' of chambers for themselves, but with an experienced barrister at its head and usually a clerk to manage the flow of work. New tenants will often be expected to pay towards the costs of running the chambers (although costs are usually apportioned on a sliding scale by earnings) and in some cases even to buy into a company that, for instance, owns the chambers building. There are approximately 11,000 independent barristers in England and Wales, with about 5,500 in London. They work within some 500 sets of chambers, including sole practitioners.

Even though they have completed pupillage there is no guarantee that they will manage to secure a tenancy. In fact, as low as only one-third of pupils find a tenancy. The most obvious place to look for a tenancy is the chambers at which they did their pupillage. Normally a tenancy committee will consider their academic and practical skills as well as their personal qualities.

For those unable to secure a tenancy, it is sometimes possible to stay on at the chambers where one did his pupillage as a 'squatter'. This is like being a temporary tenant.

7. What are various Specialisations for Barristers?

Barristers generally work under the 'umbrella' of chambers for themselves, but with an experienced barrister at its head and usually a clerk to manage the flow of work. Some Chambers specialize in specific areas of Law like Banking or Family law. However, in practice, few cases lend themselves to rigid categorization or fit neatly into traditional categories. What first appears to be a company law problem could raise issues pertaining to banking, insolvency or insurance law. Accordingly, the majority of chambers undertake varied work. The Bar’s main practice areas are

Common Law - Areas of specialization can include actions against the police, clinical negligence, employment and discrimination law, landlord and tenant, personal injury, professional negligence and serious fraud.

Commercial/Chancery - Important business matters such as insolvency and finance-related advice and litigation are traditional 'chancery' areas. Many 'dry' areas of law such as equities, trusts and pensions are the focus of this practice.

Public Law - The Public Law Bar spans the full range of administrative, public and constitutional law. A very broad range of work, including a great deal of advisory work, is undertaken in relation to judicial review and the powers and practices of various public bodies.

Family - Family law is not a self-contained topic as human issues can give rise to various legal questions. A family lawyer may have to deal with foreign law and banking practices, offshore trusts, pensions and other complex areas. Some Family Law cases involve substantial assets and complex financial arrangements, or high-profile cases with well-known personalities.

Criminal- At the Criminal Law Bar you may be called on to act for either the defence or prosecution. Specialist criminal law chambers offer expertise in all areas including child abuse and child sex offending, drug-related offences, fraud, human rights, mentally ill offenders, serious violent and sexual crime, and white collar crime.

Construction - Some of the leading decisions in the law of contract and tort come from construction and engineering disputes. Related areas of commercial law include environmental, energy and EU law.

Intellectual Property - Intellectual property work encompasses copyright, patents, and trademarks and passing off.

Tax- Tax law barristers advise and litigate on all aspects of both commercial and personal tax issues. The corporate and business tax issues covered by chambers can concern company or group reconstructions and demergers, transfer pricing, and the uses of losses and capital allowances. Corporate tax is a specialist, high-earning field.