Party Wall Surveyor Bruce Spenser MSc MCIOB

Party Wall Law

if a Party Wall Surveyor can not understand, interpret, advise on and apply the law they are unfit for purpose

English and Welsh Law

The law can be classified and divided as follows:

LAW

Public

Private

Criminal

Contract

Administrative

Tort

Constitutional

Property

Public law affects everyone

  • Constitutional Law determines who will govern
  • Administrative Law determines the jurisdiction of the government
  • Criminal Law determines what people can and cannot do (theft, violence, property etc)
  • Private law governs contracts between parties to an agreement or accidental damage to property or injury to a person (tort).

Public and private law can overlap. Ie A criminal committing a crime may beat some up which will involve the police (the state) and the beat up person claiming compensation (tort of negligence) for the injury, loss and damage caused.

Problems have evolved re Children and family law and the division into public (state) and private law (individuals)  and special procedures deal with families.

Criminal law is entirely separated from all other types of law (civil actions) and are dealt with in separate courts.  Special procedure are in place for children.  Criminal concern the public and the police and the ideal is to prevent re-offending by punishment (operant conditioning).  It is essential, because the state punishes and restricts freedom that the trial rules are strict to preserve confidence and abeyance of and in the system and the standard of proof is “beyond reasonable doubt”.

Civil law is between individuals and compensates the victim via damages by the transgressor – the scales of justice.  It may be by agreement of the parties.  The burden of proof rests upon the person complaining of damage or injury and the standard of proof is expressed as “on the balance of probabilities”.

In a civil action the parties are two individuals in dispute.  The injured party making the allegation is called the claimant (plaintiff) who sues the defendant (who the claimant claims has done him wrong).  If the wrong is proved the correction of the wrong is by damages  (which places the claimant in the position they were before the wrong was done).  The case is listed by the claimant’s name first ie claimant v defendant.  If the defendant loses they may appeal and they are then knows as the appellant and the original claimant as the respondent.  A judge hears the original case, a number of judges the appeal.

Criminal cases are prosecuted by the relevant department of state (the crown); crown prosecution services, customs and excise, local council (or extremely rarely privately).  The case is listed as R v defendant.  The most serious cases will be prosecuted by the DPP.  The standard cases go before the beak; The Magistrates court (lay justices bench) who will be advised by the clerk (who will be legally qualified, similar to the army admin clerk advising the officer prosecuting by 252 the unfortunate soldier), the more serious cases are heard by a judge and 12 good men/women true (the jury).  The sanction applied against guilty parties will be a punishing, deterring or rehabilitating sentence.  The victim may be called as a witness but has no part in the prosecution and may not settle the matter with the defendant.  Children (no legal capacity) are dealt with under different procedures by the youth court which sits in private with specially trained magistrates who impose, only restrictive, punishments. 

 LAW SOURCES;  Case Law (Common Law), Legislation

After the conquest (1066) William, in order to control the conquered, gave.  One thing he gave was justice;  he gave jurisdiction to judges to travel around the country who would apply the best customs from within the country and apply them for all as a common law for everyone.  Common/case law was built up incrementally (case by case) over the centuries by reference to precedent and they are synonymous and interchangeable.  The common law cases are supplemented (then and now) by parliament (then the King or Queen in council) by legislation known as statute (acts of parliament).  Case law was predominant until the industrial and agricultural revolutions (mid 18th century) when statutes surpassed them but both are interpreted and enforced through the courts (by precedent if it is there).

The system of precedent

Judges interpret the by the system of precedents. 

An inferior court is bound to follow the legal principles established previously by a superior court in a similar case.

  • Overruling – Case law may be overruled by statute. Superior courts may overrule the decisions of courts that are inferior to them.
  • Distinguishing – This is the main way in which the doctrine of precedent remain flexible. Cases are distinguished on the facts so that the inferior court does not need to follow a decision of the superior court after all.

For the system of precedent to operate effectively:

  • Requires a good system of law reporting. Important decisions must be published consistently and accurately. In particular the judgement must be set out so we know what the judges actually said.
    • ratio decidendi (reason for deciding) is the part of the judgement that may apply to later cases and is said to be binding.
    • obiter dicta Any matters which are not part of the reasons for deciding the case (things said by the way) and are only persuasive.
  • Requires a clear hierarchy of courts to know which is an inferior court and which is a superior court.

Legislation; Statute, Delegated legislation,

Legislation is by parliament who may make, amend or repeal a law on any subject at any time. A judge may not alter case law unless a certain sets of circumstance upon which the principle of law is based comes before the court – the court may not overrule or ignore a statute (see Statutory Interpretation & the Human Rights Act 1998)

Statute is authorised, created and repealed by Parliament, the commons, the lords and royal assent.  A statute can authorise jurisdiction, decisions and detailed rules etc by delegated Legislation which must be published within a statutory instrument.

The human rights act provided that a statute must be interpreted to comply with the provisions of the European Human Rights Act which can mean that case law and statutes becomes non-effective or no longer mean what they were meant to mean. This could mean that the court must go against previous decisions of the English courts and make the statute mean something which it was not designed to mean – they must read down the statute. If the words of the statute are so unambiguous that they cannot be made to comply with the ECHR, the court must still apply the statute but can declare it “incompatible”. The statute will remain valid until parliament decides to change it, however. The position with delegated legislation is different, because the HRA 1998 allows a court to rule a statutory instrument invalid if it does not comply with the ECHR.

The Institutions of the EU

The European Parliament was introduced to stop the perception of an unaccountable bureaucracy in 1978.  It has elected representatives from the countries which make up the EEC.  It has no legislative power but can legislate on certain matters in conjunction with the Council of Ministers, power given by Maastricht Treaty. Its is considered by the EEC to be  supervisory and advisory and can censure the commission and debate EU proposals and put written questions to the Commission and Council of Ministers. The Commission and Council of Ministers must consult the Parliament but they do not have to heed the Parliament’s report of opinion.

The Commission consists of 13 commissioners and staff of over 6000. It is the “civil service” of the EU. It is the guardian to the Community Treaties, it is the executive agency of the Community, and it co-ordinates Community policy by preparing community legislation for the Parliament to consider and the Council of Ministers to pass.

The Council of Ministers consists of one minister form each state. When the ministers are not present their work is done by a Committee of Permanent Representatives (COREPER). The Council has the power to pass secondary legislation.

The European court of Justice consists of one judge, who holds office for 6 years, from each member state and each judge requires the unanimous vote of the governments of the counties. The 6 years is renewable. Judges are selected either by having held high judicial office in their own country or by being universally recognised as a legal expert. The court’s president is elected by all the judges by secret ballot for a 3 year renewable period. In addition there are 6 Advocates General whose function is to assist the court by presenting arguments as unbiased spokesmen. Advocates General require the same qualifications as judges and are appointed for a 6 year period which is renewable by a unanimous vote of the Council.  Its jurisdiction is:

  • to settle disputes between Member States,
  • to deal with proceedings brought by the Commission against Member States,
  • to deal with disputes between the Institutions, and
  • to make rulings on points of law that are brought before it for interpretation by the Institutions, Member States or individuals within Member States.

European Union Law as a Source of UK Law

EU Law is made up of three parts and all three parts are both directly and indirectly sources of English law. The three parts are:

  • the Treaties which are known as Primary legislation;
  • the Regulations, Directives and Decisions which are known as secondary legislation;
  • the Decisions and Preliminary Rulings of the European Court of Justice.

Primary Legislation – The Treaties – When the UK joined the EU it became bound by the terms of the Treaties already made and agreed to be bound by all treaties made in the future while a Member State.

The European Communities Act 1972 s 2 states “all such rights powers liabilities obligations and restrictions… created by or arising under the Treaties … shall be recognised and available in law, and shall be enforced, allowed and followed accordingly”  This has effect to make the Treaties a source of law. As Lord Denning said “when we come into matters with a European element the Treaty is like and incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be a part of our law. It is equal in force to any statute.”

Secondary Legislation – The Commission prepares and drafts legislation, the Parliament considers it and expresses an opinion and in some instances co decides and the Council of ministers the passes the legislation. There are three kinds of secondary legislation:

Regulations – which apply to all Member States and have immediate effect. They do not require legislation by the individual Parliaments of each Member State and regulations are therefore called self-executing.

 Directives which are binding on all Member States, which require legislation by the individual state to put them into effect. The Directive set out a goal which all Member States are to reach by a certain time.

 Decisions which only apply to certain Member States, agencies, companies, or individuals to whom they are addressed. They have immediate effect and no further legislation is required.

Legislation may be made by one of the following procedures which are dependent on the legislation proposed:

  • The Council may legislate without consultation with the Parliament. Although the treaty states that decisions will be made by simple majority it goes on the provide that in most cases qualified majority is used in relation to most legislation with each state receiving a certain number of votes in accordance with its population. In a few cases a unanimous vote is required.
  • Consultation Procedure: The Council must consult the Parliament before legislating, the parliament’s opinion must be taken into account but is not binding on the Council.
  • Co-operation Procedure: The Council must consult with the Parliament who are able to make amendments to the proposed legislation. If the Council does not agree with the amendment and a compromise amendment cannot be found then the Council can only pass the legislation on a unanimous vote.
  • The Co-decision Procedure: The Council must consult with the Parliament who are able to make amendments to the proposed legislation. If the Council does not agree with the amendment a conciliation committee is formed of equal numbers of the Council and Parliament. If they cannot agree a joint text then the measure fails.

This European Court becomes a source of law by  giving Preliminary Rulings on points of European Law found in the Treaties or Regulations, Directives or Decisions and.deciding disputes between:

  • Member States;
  • the Commission and Member States;
  • one Institution of the Community and another;

Any court in a Member State from which there is no appeal (a court of last resort) must suspend the case it is dealing with and refer it to the European Court if the case turns upon a question of interpretation of one of the Articles of the Treaty or measure of secondary legislation.

However in (Case 283/81) CILFIT Srl the European Court held that it is not necessary to do so if:

  • the question of European Law is irrelevant to the outcome of the case;
  • the provision has already been interpreted by the Court;
  • the correct application is so obvious as to leave no room for doubt (the doctrine of acte claire).

After the European Court has given a ruling on the point of law then the matter is returned to the national court who will finish the hearing reach a decision based on the ruling.

All other courts may request a preliminary ruling.

Application of Community Law

The European Court has developed a number of principles to protect the rights given to individuals by Community Law.

Direct Effect of Legislation

The Treaty articles and, under Article 189 of the Treaty, Regulations are directly applicable in all Member States and have direct effect provided they are “unconditional and sufficiently precise” Case 148/78 Publico Ministero v Ratti [1979] ECR 1629 at p. 1642.

Even Directives may have direct effect if they, also, are “unconditional and sufficiently precise”.

A measure will not be unconditional if it is subject to “judicial control” Case 41/74 Van Duyn v Home Office [1974] ECR 1337 p.1347. This means that the measure gives to an independent body such as the court or government of a Member State an element of discretion. In the above case it was held that paragraph 3 of Article 84 relating to free movement of workers did not have direct effect because it was “subject to limitations justified on grounds of public policy, public security, or public health”.

If a Member State fails to fulfil an obligation that has direct effect the Commission or another Member State may enforce the measure by bringing an action against that Member State under Articles 169 or 170. However this action is slow and, until Article 171 was amended at Maastricht to allow the Court to impose a financial penalty, no sanctions could be imposed for the Member State’s failure to comply with the judgement requiring the Member State to fulfil its obligations. It also offered no remedy to individuals who had suffered as a result of the Member State’s failure to comply.

Therefore an alternative remedy has been developed by the European Court through the principle of direct effect. In Case 26/62 Van Gend en Loos v Nederlandse Administraties der Belastingen [1963] ECR 1 the European Court stated that Community Law is a “new legal order” and that certain provisions are directly effective in each of the member states creating “individual rights which national courts must protect”. This enables individuals to enforce Community Law directly in the courts of their own Member States in order to obtain a remedy, such as damages, where the individual has suffered as a result of a Member State failing to implement Community Law either at all or properly.

Individuals are able to rely on the direct effect of Treaty provisions and regulations against other individuals (horizontal effect) as well as against Member States (vertical effect).

However it was held in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 that directives that have direct effect and which have not been implemented may only be enforced against Member States (vertical effect) and not against individuals.

Directives do not become an obligation enforceable against an individual within a State until they become a part of the law of that State. In Case 208/90 Emmot v Minister for Social Welfare and the AG [1991] ECR 1000 time limits referred to in a directive that has direct effect will not start to run until the directive has been implemented and incorporated into the national law of the Member State since a person cannot be presumed to know the law until it has become a part of the law of that Member State. However an action may lie against the Member State or a public body which was obliged to implement that directive but failed to do so.

In Foster v British Gas plc a public body was held to include a nationalised industry (important for utility companies). The provisions of a Directive may be invoked against organisations of bodies which were subject to the authority or the control of the state or had special powers beyond those which result from the normal rules applicable to relations between individuals.

Indirect Effect of Legislation

In Van Colson it was held that under Article 5 the authorities of all Member States including the courts must ensure fulfilment of the obligations of the Treaty and measures resulting from action taken by the Institutions of the Community. In the absence of evidence that the national parliament did not intend to comply with its EU obligations a court should strive to construe the domestic law to comply with a directive that has not been implemented or fully implemented, if necessary filling gaps and resolving ambiguities in order to achieve a result compatible with Community Law. Therefore “it is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community Law in so far as it was given discretion to do so under national law”. This will include awarding damages where the individual has suffered harm as a result of the non-implementation.

The general requirement that the domestic law of a state be interpreted to comply with EU law is known as “indirect effect”. 

III – THE COURTS

Each court in the system is described below. The decision of a court can often be appealed to the next highest court in the hierarchy. There are some exceptions, but the hierarchy for appeals is usually as follows :

Civil cases

Criminal cases

Family cases

House of Lords

House of Lords

House of Lords

Court of Appeal (Civil Div)

Court of Appeal (Criminal Div)

Court of Appeal (Civil Div)

High Court or County Court

Crown Court

High Court (Family Div)

 

Magistrates Court

County Court

 

 

Magistrates (Family Proceedings) Court

NOTE : cases will start in either the High Court or the County Court, depending on the value of the claim. Some types of case in the County Court can be appealed to the appropriate division of the High Court, but claims in contract or tort go straight to the Court of Appeal.

NOTE : every offence is classified as “summary” (must be dealt with in the Magistrates Court); “indictable” (must be transferred to the Crown Court); or “triable either way” (can be transferred if serious or the defendant so elects). Appeals on a point of law can be heard by the High Court (Queens Bench Div) by “case stated”

NOTE : in cases concerning children in particular, the hearing can be transferred to whichever court is the most appropriate, according to the complexity or seriousness of the case.

 

  1. European Court

Only deals with points of European Law. Its decisions are binding on all courts under the European Communities Act 1972.

  1. European Court of Human Rights

Deals with appeals when there is no other possible appeal to an English/Welsh court an there is an issue relating to the ECHR. Under the HRA 1998, all courts in E&W must follow decisions of the ECtHR on such points.

  1. House of Lords

Only deals with appeals on points of law and on matters of public importance. Its decisions are binding on all English courts but it does not bind itself. It is made up of judges who have been ennobled for this purpose (“Law Lords”). When sitting as the Privy Council it hears appeals from some former colonies, and then its decisions are only persuasive precedents.

  1. Court of Appeal

Cases are usually heard by three Lords Justices of Appeal (Smith LJ) sitting in London (the Royal Courts of Justice in The Strand). The Civil Division deals with appeals from the civil courts, and is headed by the Master of the Rolls. The Criminal Division hears appeals from the criminal courts and is headed by the Lord Chief Justice.

  1. High Court

Hears the more serious civil cases and, although based in London, will also sit in large provincial cities. There are three divisions of the High Court: The Family Division and the Chancery Division which only hear civil matters; and the Queen’s Bench Division which hears both civil and criminal matters. The three divisions may sit either as courts of first instance (hearing a case for the first time) with a single judge; or as a Divisional Court (sitting as a court of appeal in London), with two or three judges presiding. Decisions of a single High Court judge are weak precedents, but decisions of a Divisional Court are much more important. High Court judges are called “Mr/Mrs Justice Smith” (shortened to “Smith J” in law reports).

  1. County Court

Hears relatively small civil cases. It is situated locally in most towns of any size and cases are heard by a single “circuit judge” (Judge Smith). Can hear family cases. 

  1. Crown Court

A criminal court that hears serious criminal cases. They are situated in larger towns and cities and classified in “tiers” according to the degree of seriousness of the cases they can deal with. Cases are usually heard by a circuit judge but very serious cases (e.g., murder trials in a tier 1 Crown Court) will be heard by a High Court judge.

  1. Magistrates Courts

Situated locally in most towns. As a criminal court it deals with all minor cases and vets cases before they go to the Crown Court, to ensure that there is sufficient evidence for the case to be heard. Cases are usually heard by two or three lay (i.e., not legally qualified) magistrates, but some courts in large cities are staffed by one stipendiary magistrate (District Judge) who is a qualified lawyer (i.e., a solicitor or barrister). As a “family proceedings court” it can deal with most family matters except divorces and disputes over property.

Tribunals

These hear particular kinds of cases which are governed by technical rules and/or require specialist knowledge to deal with them. E.g. Industrial Tribunals (unfair dismissal and other employment matters); Rent Assessment Committees; Mental Health tribunals (release from compulsory detention in a mental institution etc)

The Legal Profession

The parties in either a criminal or civil case are represented out of court by a solicitor. S/he is the office lawyer and will deal with the client initially. If the case is to go to the magistrates court or the county court the solicitor may still continue to deal with the matter. S/he may pass it to a barrister, however and must do so if the case goes to trial in the High Court or Crown Court (with some exceptions). Barristers are the court room lawyers who tend to be more specialised, although there are now many solicitors who are equally specialised and as a result the monopoly that the Bar had in the courts is being eroded. Solicitors and barristers have the same basic qualifications – a law degree followed by a specialised vocational course and examination. Trainee solicitors must spend two years “apprenticed” to a qualified solicitor before being admitted to the role of solicitors. Trainee barristers are qualified as soon as they pass their vocational examination, but must spend six months as an apprentice (“pupil”) before being allowed to appear in court, and one year before being allowed to practice on their own. It is therefore quicker and easier to qualify as a barrister than as a solicitor

07927123469

bruce@partywallsurveyor.london

Bruce Spenser MSc MCIOB | Party Wall Surveyor | Building Surveyor, 12 Forburg Road, Stoke Newington, London N16 6HS

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