Appunti inglese giuridico

Procedement of a civil law case

 Preliminaries

o Establishing possible claims: seeking legal advice from a solicitor

o Assembling the case: client instruct the solicitor

o Pre action matters: parties exchange documents in order to settle their dispute

 Negotiation: parties compromise

 Mediation: a third acts as a go-between the parties

 Conciliation: the third party may also offer a non binding opinion

 Arbitration an award adjudicate the dispute

 Civil litigation

o Starting: the claimant sues the defendant on a legal matter

o Statement of case

o Defendant response: he can admit/defend/ask more time

o Default judgment

o Allocation

 Offers to settle by payment into courts

 Offers an Alternative Dispute resolution

 Injuction

 Civil trial

o The case is heard in the County Court or in the High Court

o The claimant must prove, on the balance of the probabilities, that events occurred a claimed

(burden of proof)

o If claimant wins, the court will deliver judgment

o Either party may appeal to the Court of Appeal

Criminal Law

A prosecutor prosecutes a defendant

Procedement

 Arrest

 Commencement is responsibility of the Crown Prosecution Service

 Charging: (Holding on demand/releasing on bail) or (information/summons)

 Offences are classified as follows

o Summary offences: less serious, only Magistrates Courts

o Either way offences: median seriousness, Magistrates Courts or Crown Court

o Indictable offences: most serious, only Crown Court

 Prosecution must prove that defendant is guilty beyond reasonable doubt

 Defendant could argue and provide evidence against the accusation of the prosecutor

 Judgment

o Magistrates Court: magistrates alone

o Crown Court: Jury decides questions of fact, Judge decide question of law

 Eventually, convict can appeal if he believe the trail was unfair or that sentence was too harsh

Elements to the crime

Fundamentals of the offence

 Actus reus (unlawful act) -> Physical Element

 Mens Rea (guilty mind) -> Mental element

Physical element consists of:

 Conduct

 Circumstance

 Consequence/result

Crimes could be:

 Conduct crimes: the conduct itself is criminal

 Result/consequence crimes: only the result of the action is criminal

The chain of causation between conduct and consequence is mandatory

Mental element may be distinguished as follow:

 Intention: direct or oblique intent of achieving an unlawful result

 Recklessness: despite the awareness of risky consequences, a person still proceeds with the conduct

 Negligence: a person is not aware of the risks of his conduct, but an average man would

Defences to criminal liability

Criminal law

 Pleading non-insane automatism (defendant has no control over his actions)

 Deny mens rea

o Insanity

o Mistake (only of fact)

o Intoxication

 Justification

o Duress

o Necessity

o Self-defence

Legal professions

 Solicitors

o They have day-to-day contact with clients

o They can exercise a right of audience in the inferior courts only

o They are represented by the Law Society, in which they are enrolled

 Barristers

o They have contact with the instructing solicitor only

o They can appear in courts as advocate or write an opinion on a case

o Top Barristers are appointed to the rank of Queen’s Counsel

 Magistrates

o They deal with less serious offences

o This category includes both District Judges and lay magistrates

 Judges

o They sit in superior courts

o They must act independently, but they have judicial immunity

Contract Law

 Requirements of a contract

 Offer and acceptance: they must be clear

 Intention to create legal relations

 Legal capacity

 Consent: it must be genuine

 Valuable consideration

 Legality of purpose

 Form required by law

 No vitiating factors

Consideration: it describes what is actually given or accepted in return of a promise

Ending of a contract

 Setting it aside because of vitiating factors

 Duress or undue influence: pressure on the injured party/abuse of privileged position

 Mistake

o As to the subject matter

o As to the existence of the subject matter

o As to the identity of the person contracted with

 Misrepresentation: false statement of fact to induce the other party into the contract

Discharge of a contract

 Performance: carry out the obligation

 Agreement: both parties agree to form a new contract

 Breach of contract: one party refuse to carry out his obligations

o Liquidated/Unliquidated damages

o Quantum meruit

o Injunction

o Specific performance

 Frustration: the contract has become impossible and there is no party fault

European Union

Legislation

 Primary: treaties

 Secondary: law made by the Council under the authority granted by the treaties

Institutions