English Legal System Pre Barreau 2022

ENGLISH LEGAL SYSTEM
PRE BARREAU 2022 1

Instructions
• The lecture must give the candidates a clear overview of the
English legal system through key elements
• Candidates must identify the key elements of any topic in order to tackle
a problem or an oral question asked by the reviewers.
• The lecture will provide you the key elements in order to analyze subjects and
topics properly.
• Candidates must identify the ways in which a subject or a text may be examined.
• Put in your minds key elements ; just answer what you have well understood
• Give comparative law examples in order to strengthen your legal skills.
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Key issues
• English legal system : Common Law, Equity, Customs,Statute Law, The
Constitution, British & EU Law
• Redefining the powers : Government vs Parliament ; the Monarch
• English Legal professions, The Court system,
• Contract Law, Tort Law, Criminal Law.
• Claims launched against Brexit before the High Court on

the ground of judicial review for unfair elections.
• What about the Human Right Act 1998 and British Courts.Fear of a Human
“Rights quit.”?
• Issues with the EU?
• What about the Irish backstop clause?
• Boris Johnson’s resignation – Context and aftermath
• New prime Minister : Rishi Sunak or Lizz Truss?
3
The Crown
British overseas
British Isles Commonwealth territories :
Realm :
Bermuda, Cayman Islands,
Canada, Australia, Turks and Caicos Islands,
United Kingdom Papua New Guinea, Gibraltar, British Virgin
Solomon Islands, Islands, Akrotiri and
Crown Belize, The Bahamas, Dhekelia, Anguilla, Saint
dependencies: Republic Barbados, Saint Lucia, Helena, Ascension, Tristan
Great Northern Isle of Man, of Ireland de Cunha, Montserrat,
Britain Ireland Guernsey, Jersey Saint Vincent and the British Indian Ocean
Grenadines, Grenada, Territory, South Georgia
Antigua and Barbuda, and the South Sandwich
England Saint Kitts and Nevis, Islands, Falkland Islands,
Scotland Tuvalu British Antarctic Territory,
Wales Pitcairn Islands
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British Isles
Republic of
United Kingdom Ireland
Northern
Great Britain Ireland
England
Scotland
Wales
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The emblems
• These arms are used by the Monarch in her/his

official capacity as Monarch of the United Kingdom.
• You may notice the motto : "Dieu et mon droit"

• & "Honit qui mal y pense"
Also notice the lion (symbol of England) + the

unicorn (Scotland) + the Dragon (Wales) + the
golden Harp (Northern Ireland)
Royal Coat of arms of the United
Kingdom
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The emblems
The Royal Coat of Arms came into being in 1399 under King
Henry IV. It is used by the reigning monarch.
It appears in every courtroom in England and Wales (with the
exception of the magistrates’ court in the City of London),
demonstrating that justice comes from the Monarch, and a
Law court is part of the Royal Court (hence its name).
Judges and magistrates are therefore officially representatives of
the Crown.
The presence of the Royal Arms explains why lawyers and court
officials bow to the judge or magistrates’ bench when they enter
the room. They aren’t bowing to the judge – they are bowing
Royal Coat of arms of the to the coat of arms, to show respect for the Monarch’s
United Kingdom justice.
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English Law Sources
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• ENGLISH LAW SYSTEM vs. CIVIL LAW
SYSTEM
• In Europe, one may distinguish between two

systems of laws:
GENERAL
INTRODUCTION
• 1) The English Common Law system: which is
in force in England and Wales
• 2) The Continental Law system: also referred to

as Civil Law System or « Codified Law » System.
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• English Law system comes from Norman law
after the Norman conquest of England by William
the Conqueror in 1066.
• The law was divided into two parts:
ORIGINS OF THE
ENGLISH LEGAL • - Customary laws: specific per area. Developed
SYSTEM during the Anglo-Saxon period.
• - Judges travelling to different parts of the

Country , hearing cases
and making judgments on behalf of the Crown.
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THE COMMON LAW
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• 1) The Common Law is
• A legal system in England and Wales (and in the
UK in a wider view);
THE • 2) Common law also means:
COMMON • « judge -made -law » that is to say Case Law.
LAW Where facts of the cases are similar to another part

of the Country where the judge has given judgment,
he would likely give the same judgment.
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• When the Judge speaks and
passes Judgment in a
case, that Judgment becomes law.
THE « The power of the Judge’s mouth becomes law »
COMMON • 3) The Common Law is also:

LAW A system of principles which cross national
boundaries(Irish,American, Canadian,
Australian, the whole Commonwealth
countries)
13
•Stare decisis .
• What does it mean? : « to stand by things decided »
• The rule of Precedent: is treating previous judicial
THE decisions as authoritative statements of the law
COMMON• Precedent is also closely connected to Stare decisis:

LAW decisions of higher Courts are binding on the lower
Courts
• Once a Court has answered a question, the same
question in other cases must give rise to the same
response from the same Court or lower Courts.
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• Until the Judicature Act 1873:
• Common law was developed by the
Common law Courts
THE
• Equity rules were developed by the
COMMON Chancery Courts only.
LAW • Judicature Act 1873 joined both
disputes before the same Courts.
• Common law is a source of general
principles of Law even though
Statute Law normally prevails.
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• Example: Regina v Chief National Insurance
Commissioner ex parte Connor(QB 758 DC)
1981
THE
COMMON • The Court of Appeal interpreted in a narrow
way the Social Security Act 1975 which gives
LAW normally allowance to widow without more

details.
• Held: that statute will not apply against the

general principle of law that «no one can
profit from his own wrong.»
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Lord Denning
(1899-1999)
• Common law as explained by Judges:
• « I have come (…), to speak, as it were, to the common people

of England and to further among them the knowledge of their
laws, so that they may realise their privileges and likewise their
responsibilities. »
• (Lord Alfred Denning ; Freedom under the law

1948)
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Lord Goff (1926-2016)
• Common law as explained by Judges:
• « We tend to avoid large, abstract, generalisations,

preferring limited, temporary, formulations, the
principles gradually emerging from concrete cases as
they are decided.»
• (Lord Robert Goff; The Future of the
common Law (1997).
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These two examples explain the
differences between French law and English
THE common law.
COMMON French law is preliminary based on statutes law

where Acts of Parliament are designed with « large,
LAW abstract, generalisations » applying to everyone.
English law tends to concrete legal

reasonings based on similar facts built case by
case which lead to precedents.
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Equity is a set of rules or principles which comes
to moderate the hardness of Common law.
It is an equivalent for “general fairness” or “natural
justice.” It exists in domestic law, both in civil law and in
common law systems
EQUITY « Equity follows the law » but is not here to challenge it.
As mentioned above, before the Judicature Act

1873, Chancery Courts had only jurisdiction to hear cases
based on Equity.
When there is competition between Common law and
Equity ,the Act states that Equity shall prevail.
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• Equity is also based on natural, proper and fair
justice
• Equity has been built up with metaphoric
comments like for instance
« One must come with clean hands to Equity »
Means: the applicant must not have had improper
conduct
EQUITY Equity gives proper redress to harms or rights
that Common law does not recognise.
Hence, Equity grants equitable remedies but at
Court’s discretion. ( It is a more flexible way
of handing down justice.)
Equity may grant injunctions ; specific
performance ; rescission ; right of redemption,
etc.
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• Customs are also one of the sources
of law in English common law
system.
CUSTOMS
• Custom is a form of usage
recognised by the law as binding.
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Statutory Law
or
"Statute" Law
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Statute law is : Acts of Parliament
•They are the highest level in

the Hierarchy of norms in England and Wales.
- also means local Acts made by public local bodies
or authorities
Statute
Law
- Statute law is written and passed by both
Houses of the Parliament :
• The House of Commons
• The House of Lords
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• Forms of Statute:
1) Nowadays Statute Law forms the major part of
English law rather than the common law rules.
World War II and the Welfare State, many branches
of the law have been created by statutes. It has
been increasing since the 1960s.
Statute
Law 2) The highest level of the EU legislation
(Treaties) has been
also introduced into English law through
Acts of Parliament Such as
- European Communities Act (ECA) 1972
as amended by subsequent Treaties
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• The Statute law division: Public Acts vs.
Local Acts
• Statutes law is divided into two

main forms:
• « Public General Acts »

Statute and Private Acts:
Law • - Government intervenes for either
public general interest or private
interests specifically in various areas
or sectors: Company Law, Family Law,
Criminal Law, Financial Law, Tax Law etc
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• Prerogative Acts:
- Acts which, by delegation of Parliament,
have empowered or authorised ministers
(Home Secretary for instance)
to make delegated legislation by statutory
instruments or orders in council.
Statute
Some of these acts have been used to
Law
implement into domestic law EU Directives.
Devolved administrations are dedicated to

implement it.
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Local Acts:
• - Acts authorised by Statutes which,
by delegation of Parliament, empower
local public bodies or public Corporations
to pass by laws acts through special powers
by local Acts.
Statute
Law • These Acts can be public or private
and subject to judicial review before
the Courts
• These Acts come from local Authorities like
Public Hospitals, City Councils, etc.
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• Local Acts
These Acts can be public or private
• All these Acts are subject to judicial review
before the Courts depending on whether they or
the power they derived from, are considered
as being public or private.
Statute
Law - (see leading case: R v Panel on Take-overs and
mergers; Ex parte Datafin plc [1987] QB 815)
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The Constitution
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The UK has no written constitution. Nor
does England have a constitution, neither
written nor formulated. The United
Kingdom is one of the few countries of the
world that does not have a written
constitution: it just has what is known as an
“uncodified constitution”
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Thus the only "British Constitution" that exists is a
set of rules and regulations constituted by
jurisprudence and laws and by various treaties and
international agreements to which the United
Kingdom has signed up.
This uncodified constitution has largely developed out

of historic English law, since many of its founding
principles and essential laws go back to charters and
bills that were drawn up by the English parliament long
before the creation of the United Kingdom.
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Although England's parliament, often called "the mother of
parliaments" has existed for over seven centuries, the
founding document of England's "constitution" is generally
considered to be the Magna Carta, or Great Charter of the
Liberties of England, which the barons drew up and forced King
John to sign in the year 1215.
The spirit of this document has guided the evolution of

English law over the centuries, as well as inspiring numerous
constitutional documents drawn up by other countries,
including notably the Constitution of the United States of
America, and the Universal Declaration of Human Rights.
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Magna Carta was issued in June 1215 and was the first
document to put into writing the principle that the king and his
government were not above the law.
It sought to prevent the king from exploiting his power, and
placed limits to the royal authority by establishing law as a power
in itself.
Magna Carta is significant because it is a statement of law that

applied to the kings as well as to his subjects. Although the
idea of England as a community with a law of the land
independent of the will of the king was implicit in custom
before 1215, Magna Carta gave this concept its first clear
expression in writing.
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The Magna Carta
1215
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Among other landmark bills that have
established major new principles in the
British Constitution is the English Bill of
Rights, passed after the Glorious
Revolution of 1689
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The English Bill of Rights
1689
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And the Acts of Union, of 1707,
establishing the linking of England and
Scotland within a United Kingdom.
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The Acts of Union
1707
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The “Habeas Corpus” (1679): No one can be detained
without the order or control of a Judge
Habeas Corpus (1679) , defined and strengthened the

ancient prerogative writ of habeas corpus, which required a
court to examine the lawfulness of a prisoner's detention
and thus prevent unlawful or arbitrary imprisonment.
In a nutshell : No one can be detained without the order

or control of a judge.
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The Habeas Corpus
1679
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The Constitution
Habeas Corpus echoes in the common law world.
In “freedom under the law” Lord Denning used to refer to :
“I have come to talk about – freedom under the law. Let me start with an
instance of how the courts approach the subject. Whenever one of the
King’s judges takes his seat, there is one application which by long tradition
has priority over all others.
Counsel has but to say ‘My Lord, I have an application which concerns
the liberty of the subject’ and forthwith the judge will put all other matters
aside and hear it. It may be an application for a writ of habeas corpus, or
an application for bail, but, whatever form it takes, it is heard first. This
is, of course, only a matter of procedure, but the English law respecting
the freedom of the individual has been built up from the procedure of the
courts.”
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The Constitution
The highest level of legal authority is the Constitution.
It is commonly shared that the UK has no Constitution.

It is not true. UK has no “formal” Constitution wrapped up,
UK Constitution is made of unwritten text.
Unlike most continental countries, UK Constitution does

not lie in one single text containing fundamental rules. It
does not mean that there is no text as Constitution but
only means that British Constitution is a set of different
sources like, texts, customs/usages constitutional conventions
and, case laws deriving from common law rules.
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The Constitution
UK ‘s constitution is a set of rules which prevails over other
sources of law
Why one single text does not prevail above others?

Constitutions are often mirrors of countries’ history and
collective destiny.
According to Dicey, British Constitution might be defined
as set of laws but also political practices.
“Constitutional conventions” means: Political practices,

and understandings in which the Government, the Monarch and the
Parliament and state bodies believe and comply with, for a long time.
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The Constitution
Legal issue:
• One joke sets out the problem well :
• « UK Constitution is not worth the paper it isn’t
printed on .»
• Without one single text, how to determine what is
of a constitutional importance or not?
• A few texts or principles prevail above others

emphasising a certain hierarchy between all
constitutional sources.
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The Constitution
A few statutes and specific texts prevail above
others:
But unlike other foreign constitutions, UK
Constitution does not have a specific procedure in
order to enact constitutional Statutes.
The issue is quite clear now: With the Prorogation

process which took place between August and
September 2019, observers saw the weakness of an
unwritten Constitution.
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The Constitution
1) Act of settlement (1701), Acts of Union (1707), the
Parliament Acts 1911 and 1949, the European Communities
Act 1972 and some subsequent Treaties.
• Act of settlement (1701) refers to the relation to the
succession to the Crown : it is an Act of the Parliament to
settle the succession to the English and Irish crowns
on Protestants only.
• Act of Union (1707) uniting the English and Scottish

Parliaments : the Kingdom of England and the Kingdom of Scotland—which
at the time were separate states with separate legislatures, but with the same
monarch—were, in the words of the Treaty, "United Into One Kingdom by
the Name of Great Britain“.
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The Constitution
• Parliament Acts 1911 and 1949 have determined how
Acts of Parliament are voted :
- The Parliament Act 1911 asserted the supremacy of the House

of Commons by limiting the legislation-blocking powers of
the House of Lords (the suspensory veto).
- The Parliament Act 1949 further limited the power of the

Lords by reducing the time that they could delay bills,
from two years to one
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The Constitution
2) All Acts relating to devolution process which began in
1997, when the Government started to transfer some
powers from Central State (London) to regional bodies.
- It first started with consultative referendums held in

Scotland and Wales
- It has given rise to Scotland Act 1998, and Wales Act 1998
and 2006, and then the Northern Ireland Act 1998.
- Each of these regions has a Parliament or Assembly

with delegated but limited powers.
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The Constitution
3) The Constitutional Reform Act 2005:
This is one of the biggest reforms in the British/UK
Constitutional history.
It abolished the Appeal Committee of the House of Lords

where Law Lords used to seat as final Court of Appeal
and replaced it by a new judicial body.
Before 2005, the House of Lords, one of the two Houses of

the British Parliament, was divided into two parts.
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The Constitution
- A few Lords participated to legislative works
- Others participated only to Judicial work and were
known as « Law Lords »
The Constitutional Reform Act 2005: has established

a new judicial body hearing final appeals:
- The UK Supreme Court
- has maintained the principle of the Rule of law.
- reformed the office of the Lord Chancellor
51
The Constitution
The Human Rights Act 1998:
o This Act introduced into the English law system as
well as throughout the UK, the ECHR (European
Convention on Human Rights)
o UK Courts directly apply the Human right Act

1998 which has transferred into UK domestic law
the ECHR
52
The Constitution
The European Union :
Keep in mind that before Brexit, any Act
of Parliament dedicated to EEC and then the EU (for
instance European Communities Act 1972) by
which the UK became a Member State of the EEC/EU
and then withdrawn from the EU, are also parts of
the UK Constitution.
Many acts, no matter their forms are (Acts of Parliament, Case

law, Treaties, constitutional conventions), are considered as
being parts of UK Constitution.
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The Constitution
The Constitution does not have singular forms of texts or
documents. Forms of acts which might be of a
constitutional importance may vary depending on their
forms.
No specific constitutional process exists nor any Act of

Parliament dedicated to constitutional matters
The form of the UK Constitution may vary depending on

political, legal and factual circumstances.
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The Constitution
The Rule of law is also part of the Constitution
The rule of law: What does it mean?
Dicey: « A government of law not of men .»
Lord Bingham gave a clear definition:

1. The law must be accessible, clear & predictable.
2. Questions of legal rights should be resolved by the law and not by
the exercise of discretion.
3. The law should apply equally to all
4. Ministers must act within their powers and not exceed their limits.
5. The law must afford adequate protection of fundamental human Rights.
6. The law should provide equal access to justice,
7. Procedures before Courts and tribunal must be fair.
8. The state should comply with international law as well as national law.
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The Constitution
The rule of law:
Who are the scholars that I just quoted,

DICEY and BINGHAM
and why is it important to know them?
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Dicey (1835-1922)
• Albert Venn Dicey was a British jurist and law

Professor whose ”Lectures Introductory to the Study
of the Law of the Constitution (1885)” is considered
part of the British constitution, which is a gathering of
several written and unwritten authorities.
• For this treatise, which is noted for its application of

legal positivism to the study of British constitutional
law, he established his knowledge of
constitutionalism in the United States as well as in
Great Britain.
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Lord Thomas Henry Bingham
( 1933-2010)
• Lord Thomas Henry Bingham was an

eminent British judge who was successively
• Master of the Rolls,
• Lord Chief Justice
• and Senior Law Lord.
• He wrote a famous book : The Rule of Law, known as

the reference on the issue.
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British Law
&
European Union Law
59
British Law and the E.U. Law
United Kingdom became a State Member of the EU in 1972 and
left the EU the 31st of December 2020 (Brexit)
- E.U. Law is a set of rules which provides harmonisation of
the EU-Member States’ legislations.
Domestic legislations:
are subject to judicial review under the control of the
European Court of Justice, as well as national Courts.
Courts are required to misapply or annul any domestic
legislation violating or incompatible with EU law.
• But, both the ECJ and national Courts are also required to
misapply legislation violating the European Charter of
Fundamental Rights (Since Brexit,the “probable” implementation of
these rules is a major debate),
60
With Brexit:
The Withdrawal Agreement is also a part of the UK Constitution
• The Withdrawal Agreement between the UK and the EU

under Article 50(2) of the Treaty on European Union sets out the
arrangements for the UK’s withdrawal from the EU at 11.00 p.m. on
31 January 2020 ("exit day").
• The Withdrawal Agreement makes provision for a transition or

implementation period, during which time EU law, unless otherwise
provided for in the Withdrawal Agreement, continues to apply in the UK.
• The implementation period is from exit day until 11.00 p.m. on 31

December 2020 ("IP completion day").
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Courts are required to misapply or annul any domestic
legislation contravening or incompatible with EU law.
Since 2009, the European Court of Justice(ECJ) and national

courts were also required to misapply legislation contrary to
the European Charter of Fundamental Rights
In a landmark 1991 case R v. Secretary of State for

Transport, the Appeal Committee of the House of Lords
acting as a Supreme Court, held for the first time that a part of
an Act of Parliament, the Merchant Shipping Act of 1988 must
be misapplied on the grounds that it was in conflict
with European law. 62
• In another landmark case, Benkharbouche v.

Secretary of State for Foreign Affairs, the
Supreme Court in 2017 (UKSC 2017,62) for the first
time in British history also held that a part of a
Westminster statute, the 1978 State Immunity Act,
violated both, the European Convention of human
rights (ECHR) and the EU Charter of Fundamental
Rights. Justices of the UK Supreme Court decided
to put this statute aside.
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As explained by Lord Sumption in his
introduction (delivering the opinion for the
majority)
« The question at issue was whether two provisions of
the State Immunity Act 1978 are consistent with the
European Convention on Human Rights (art. 6) and
the European Union Charter of Fundamental Rights
(art. 47) ».
64
Conclusion
Even though Brexit is a done deal, the E.U.
Law will continue to have some informal
influence on British Law despite what the
current conservative government wishes to
change, because acquired principles are
rights are hard to forget.
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Vocabulary
Green paper : avant - avant-projet de loi (soumis à consultation publique)
White paper :avant-projet de loi, validé après la consultation publique
Bill : Projet de loi
Act of Parliament : texte de loi voté et ayant obtenu l’accord royal.
to come into force : entrer en vigueur
To apply To (a court) : saisir (un tribunal)
Decision :decision arret
To deprive (someone of) : priver (quelqu’un de)
Domestic : national, interne
Duty: devoir, obligation légale
To give effect to : donner effet à
Enactment : promulgation
Enforceable :applicable
The European Commission of Human Rights : la Commission européenne des droits de l’homme
The European Convention on Human Rights : la convention européenne des droits de l’homme
The European Court of Human Rights : la Cour européenne des droits de l’homme
Freedom : liberté
freedom of belief / freedom of religion : liberté de croyance / liberté de religion
freedom of conscience : liberté de conscience
freedom of movement : liberté de circuler
freedom of speech : la liberté d’expression, liberté de la parole
freedom of thought : liberté de pensée. ( attention à la prononciation!)
66
Vocabulary
to implement / an implementation: appliquer, mettre en oeuvre /une mise en oeuvre
Member state : État membre
national (adj) : national
A National : un ressortissant (d’un pays)
Partisan /opponent (of a reform) : défenseur / adversaire
Precedence : primauté
To prevail : prévaloir, l’emporter
To provide / a provision: disposer / une disposition légale
Public order : l’ordre public
Public safety : la sécurité publique
To set up : instituer
Statute : texte de loi
Statutory instrument : décret-loi, décret d’application
Worship /to worship: culte / vénérer
67
II. BRITISH INSTITUTIONS
- PARLIAMENT
- THE GOVERNMENT
- THE MONARCH
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- PARLIAMENT
Parliament is the highest legislative authority in the United

Kingdom. It is made up of the House of Commons, House
of Lords and the Monarch ( The Crown)
The Crown opens Parliament through the State Opening

(marking the beginning of the Parliamentary year).
The Crown only dissolves Parliament before a general

election under conditions laid out in the Fixed Term
Parliament Act 2011 (dissolution), which was modified by the
Dissolution and Calling of Parliament Act 2022
69
PARLIAMENT AND UK LEGISLATION
Parliamentary work takes place in the Houses which form the British Parliament sitting at
Westminster (London):
❖The House of Commons
❖The House of Lords
• Both houses have similar work:

❖ Make the law,
❖ check Government’s work (the scrutiny)
❖ propose new Bills which means new legislations.
❖ Debate on current and urgent issues
Both Chambers have similar work and procedures.
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The Monarch
PARLIAMENT
71
Palace of Westminster – Houses of Parliament- London
72
73
PARLIAMENT
74
PARLIAMENT
75
The Parliaments
“Holyrood”
“Westminster”
“Stormont”
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Centre - right
Boris Johnson
MP
Former Prime Minister

(resigned in July 2022)
77
Final Contenders for the position of leader of the Conservative Party
Elisabeth “Lizz” Truss MP Rushi Sunak MP

Secretary of State for Foreign Affairs Former Chancellor of the Exchequer
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And the winner is :
Elisabeth Truss MP
Leader of the Conservative Party
Prime Minister ( since 5 September 2022)
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Westminster
Centre - left
Leader of the Opposition

Shadow Cabinet
Sir Keir Starmer - MP

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Westminster
Centre to Centre - left
Sir
Edward Davey
MP
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Majority Coalition
Nicola Sturgeon
First Minister of
Scotland
Centre -left
Douglas Ross
Centre-right
Anas Sarwar
Centre-left
Alex Cole-Hamilton
Laurna Slater & Patrick Harvie 4 seats

Centre left to left. Center to Center-left
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Majority Coalition
Mark Drakeford
First Minister
Centre -left
Andrew R.T. Davies

Adam Price
Centre-left to
left wing. Jane Dodds
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Majority
Mary Lou
McDonald
Jeffrey Donaldson
Northern Ireland
Assembly = 27/90 Northern Ireland Naomi Long
(winner of the Assembly = 25/90 (lost
elections for the first Northern Ireland Doug Beattie
the elections)
time !) in May 2022 Assembly = 17/90
Northern Ireland Assembly
House of Commons = = 9/90
7/18 ( NI seats) Centre to centre Colum Eastwood
Right wing - And 2
left- Liberalism Northern Ireland Assembly =
Euroscepticism other
Centre left to left Centre right - conservatism 8/90
wing. minor
Centre left parties…
84
PARLIAMENT
The Monarch
85
• Story time…
The Monarch cannot enter the House of Commons. Why ?
• The monarch is forbidden to enter the House of Commons is part of a parliamentary convention dating
back to King Charles I in the 17th century.
In January 1642, Charles I came to the Commons with several armed men to arrest five MPs
for treason. Luckily for them, they had anticipated this and had already fled.
• The Speaker, William Lenthall, gave up his chair for the King, who demanded to know
where the members were.
• Kneeling at his feet, the Speaker gave a very brave reply.
• He said: "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.”
• His words, while studiously polite, made it clear to the King that the Speaker’s loyalties lay with the
Commons, not the monarch.
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Parliament votes primary legislations: legislations

having a general public interest (Acts of Parliament)
But Parliament may delegate to Government bodies,

such as Government Departments, or delegated
bodies like local Governments with the devolution
process, since 1998, what is called: delegated
legislations (called orders and regulations)
87
THE HOUSE OF COMMONS (« HC »)
The House of Commons plays a prominent role
It is a Chamber publicly elected which means: Members of
the Commons are directly elected by the people
The Party who has won the largest number of Members

in the Commons following the general elections
forms the Government
• The House of Commons has financial prerogatives or

powers.
88
The HC
❖Makes decisions on new financial Bills
❖Passes and approves Bills raising taxes
❖Grants money to the Government
❖Checks Government spending
- In such matters, the other Chamber (House of Lords

« HL ») can only consider these financial Bills but
doesn’t have power to block them or amend them.
89
Both Chambers hold debates on current issues,
questions the Members of the Government and the
Prime Minister.
The House of Commons’ administration:
1) The House of Commons is managed by a group of
MPs through a Commission which is responsible for
the administration of the House. The Commission
normally used to delegate some powers to the House of
Commons’ Executive Board, which is a body composed
of Senior officials.
90
2)The Speaker of the House of Commons:
The speaker is a MP elected by the other MPs. As the

Speaker of the House of Lords, the Speaker of the House
of Commons is the highest authority of this Chamber and
represents the Commons during public relations.
▪ The speaker keeps debates in order
▪ he/she must remain impartial and separate from political
Issues, that’s the reason why as soon as he/she is elected,
he/she must resign from his party.
• the current Speaker is Sir Lindsay Hoyle
91
The Speaker of the House of
Commons:
Sir Lindsay Hoyle MP (1957 -)
92
THE HOUSE OF LORDS
The House of Lords (HL) is the other Chamber of the UK
Parliament. (Around 800 Lords)
❖Members are not elected but appointed by the Monarch
on the advice of the Prime Minister and the
HL Appointments Commission.
❖Life peerages ;
❖Members of the three main party groups
❖Limited number of members of the Church
❖Traditionally former Speakers of the House of Commons
93
The House of Lords’ work:
❖ Participating to legislative works
❖ As well as the House of Commons, the House of

Lords used to scrutinise the work of the
government by oral during debates and written
questions.
❖ However The HL doesn’t have prerogatives on

financial matters.
94
The Speaker of the House of
Lords:
« Lord Speaker »
Lord John Mc Fall (1944 -)
95
Bill process:
Wherever the Bill starts (House of Commons or House of
Lords) there are three reading stages before becoming an Act
of Parliament.
1. First and Second Hearing

2. Committee stage then Report stage
3. Third hearing
4. Consideration of amendments
96
From a bill to an Act of Parliament
A Bill proposes a new law or to change an existing law
A Bill is usually presented by a member of the Government

but it’s not always the case.
A Bill may be presented by a Member of either the House of

Commons or the House of Lords within their own Chamber.
The Bill must be approved in the same form within both

Chambers. 97
The royal assent:
The Monarch acts on the advice of members of the
Government
o The Royal assent is the final requirement for a Bill to
become an Act of Parliament
Three options exist for the Monarch:

1. Grant the Royal assent which is almost always the case
2. Withhold (retenir) the Royal assent
3. Reserve the royal assent which means deferring a
decision on the bill for a next time
NB: by constitutional convention, the Monarch does not refuse to give

his/her royal assent. 98
The “Queen/King in Parliament”:
• In a constitutional point of view, the expression refers
to the crown in its legislative powers acting as sovereign
on the advice of the Government and the consent of
the Parliament.
It is the role of each constitutional body acting together in the

name of the crown in order to legislate.
99
- THE GOVERNMENT
The day after a general election the Monarch invites the leader of the party that won the most
seats in the House of Commons to become Prime Minister and to form a government.
The "Queen/King's Speech“ What does it mean?

The Crown informs Parliament of the government's policy ideas and plans for new legislation in a
speech delivered from the throne in the House of Lords.
Although the Monarch makes the speech, the government draws up the content.
100
THE
GOVERNMENT
101
THE GOVERNMENT
10 Downing Street
(London, City
of Westminster)
The official residence
and executive office of
the Prime Minister 102
The Government
Prime Minister, First Lord of the Treasury,

Minister for the Civil Service, and Minister for
the Union
• The Rt Hon Elisabeth Truss MP 103

THE GOVERNMENT
In the UK, The Prime Minister is the most important person of the Government.
(With the Monarch of course) Lizz Truss is the current Prime Minister.
The former Prime Minister, Boris Johnson resigned in July 2022
❖ The Prime Minister leads the Government
❖ She is appointed by the Monarch after the Prime Minister’s Party has
won the general elections or after a leadership contest inside the party of
the majority.
❖ she leads the Government with the support of the Cabinet and its Members.
104
THE GOVERNMENT
The Prime Minister (PM):
❖ oversees the operation of the Civil Service and government

agencies
❖ appoints members of the government
❖ is responsible for all policy and decisions before the House of

Commons
❖ Leads the Cabinet which includes all senior Members of the

Government by importance (Secretaries of state and Ministers).
❖ There is One PM, 22 Cabinet Ministers and 97 other staff

members.
105
THE GOVERNMENT
The Prime Minister:
❖ Chooses Members of the Cabinet and Government in the Members of the

Parliament.
❖ Each Minister is responsible for the actions of his/her Departement
❖ Departments and Agencies are putting Government policy in place

and into practice.
❖ There are around 25 Departments and 20 non-ministerial Departments
❖ There are more than 300 Agencies and executive agencies.
106
THE GOVERNMENT
The Prime Minister:
Is the most important advisor to the Monarch :
- To appoint people for specific work or functions requiring Royal assent (e.g.:
Members of the House of Lords).
- To grant royal assent for Bills
- The PM has regular meetings with the Monarch, several times a year.
❖ The PM might be challenged in his/her own Party by leadership contest:

➢ Mrs. Thatcher vs. M. Heseltine
➢ Tony Blair vs. Gordon Brown;
➢ David Cameron vs. Boris Johnson ;
➢ Theresa May vs. Boris Johnson
➢ Boris Johnson vs. Rishi Sunak and others
107
THE GOVERNMENT
The Prime Minister: is the head of the Civil Service:
According to the Government official website, the civil service
does the practical and administrative work of the Government.
The Prime Minister:
❖Initiates Bills to the Parliament through the Members of the

Cabinet and the Government,
❖ Often represents the Government before the Parliament for

debates and question time.
❖Decides any Vote of confidence before the House of

108
Commons.
GOVERNMENT vs. PARLIAMENT
The Prorogation controversy
Between August 2019 and September 2019, a huge legal battle
occurred between the new Prime Minister Boris Johnson and his
Government on one hand, and the Parliament (both the majority
as well as the opposition) and some citizens like the business
woman Gina Miller, on the other hand.
The issue was, did the Prime Minister have the right to advise
the Queen to prorogue Parliament for a length period of time
for more than five weeks?
109
❖ In its application, the Government explained that giving an advice
to the Queen to prorogue Parliament’s session was an act of
government at government’s discretion.
❖On the other side a large part of the majority and the opposition
and many famous lawyers claimed that it was unlawful to advise
the Queen to do so, in order to prevent any scrutiny or action
made by the Parliament to impose new duties to the
Government regarding the way the forms of the withdrawal
agreement should be made. 110
Gina Miller, a famous business woman sued the Government
before the Court claiming that the prorogation was illegal.
• At the same time, in Scotland the Inner house of the Court

of Session held that the prorogation was unlawful. The
Advocate General for Scotland appealed before the UKSC as
well as Gina Miller against a Judgment of the High Court of
Justice dismissing Miller’s claim on the ground that it was not
justiciable.
The English claimants were granted a leapfrog directly

before the UKSC (without going before the Court of
Appeal).
111
“Parliament does not have the power to decide when it
should be prorogued, This is a prerogative exercised by
the Crown on the advice of the Privy Council for more
than a century” as pointed out the UKSC.
The Justices noted that « the Government advises the

Crown to prorogue and that request is acquiesced to .»
The Monarch had no choice and must give the royal assent.
112
In 24 September 2019 the UKSC by a unanimous opinion of
all the Justices of the Court held that the prorogation was
unlawful.
According to the UKSC :

« The issue is whether the advice given by the Prime Minister to Her
Majesty the Queen on 27 or 28 August 2019 that Parliament should be
prorogued from a date between 9th and 12th September until 14th October
was lawful. It arises in circumstances which have never arisen before and
are unlikely ever to arise again .»
113
In a strict sense, the Government tried to avoid any

scrutiny by the Parliament over the way the
Government wanted to manage Brexit negotiations and
calendar.
That’s the reason why the then Prime Minister (Boris

Johnson) advised the Queen to prorogue Parliament for
such a long period of time (more than five weeks.)
114
Even the speaker of the House of Commonswho must remain neutral,
the speaker at that time, Sir John Bercow, took part to the legal battle by
giving his own opinion against the Government.
See one of his speeches:

• I welcome the Supreme Court's judgment that the prorogation of Parliament was
unlawful. The judges have rejected the Government's claim that closing down
Parliament for five weeks was merely standard practice to allow for a new Queen's
Speech. In reaching their conclusion, they have vindicated the right and duty of
Parliament to meet at this crucial time to scrutinise the executive and hold Ministers
to account. As the embodiment of our parliamentary democracy, the House of
Commons must convene without delay. To this end, I will now consult the party
leaders as a matter of urgency.
(Sir John Bercow, Speaker of the House of Commons, 25

September 2019).
115
Vocabulary
Act of Parliament : Loi
To appoint : nommer
Bill : Projet de loi
Government bill/ public Bill : projet de loi d’origine gouvernementale
Money bill : projet de loi de Finances
private bill : projet de loi en faveur d’intérêts privés
binding: impératif, ayant force obligatoire
By-law : arrêté, règlementation ( par une autorité locale)
case- law : jurisprudence
Civil rights : droits civiques
A claim : pretention, requete, revendication
Common law : droit coutumier
Constituency : circonscription électorale (GB)
Court : tribunal, cour de justice
Criminal law : droit pénal
Decree : ordonnance
Decree of specific performance : ordonnance d’exécution forcée ( d’un contrat)
Delegated legislation : legislation déléguée
dismissal : rejet d’une demande, classement d’une affaire
Dispute : litige
To enact a law: promulguer une loi
To enforce a law : appliquer une loi 116
Vocabulary
Equitable : juste, équitable
Holding: décision, arrêt, teneur d’une décision
Judicial review (GB) : vérification des actes des administrations par les tribunaux ordinaires
Judicial review (US) : contrôle de la constitutionnalité des lois
Jurisdiction :jurisdiction, competence (tribunal)
A Nonsuit, to be nonsuited : non-lieu, être déclaré irrecevable dans sa demande
Prejudiced (party) : partie lésée ( = aggrieved)
To prevail (over) : prévaloir, l’emporter, avoir la précédence sur
Procedural rules : règles de procédure
To proceed : procéder, poursuivre quelque chose
Proceedings : procédure, poursuites
Reading : lecture d’un texte de loi devant le Parlement
To remove : révoquer, destituer
To render justice : rendre la justice
To repeal : abroger (une loi)
Solicitor General (GB) : conseiller juridique de la Couronne, adjoint de l’Attorney General
Solicitor General (US) : Procureur general
Statute : loi, texte légal
Tribunal : tribunal administrative
Valid/ validity : valable, valide/ validité
To vest in : confier à
A Writ : autorisation d’engager des poursuites, assignation 117
Written law : le droit écrit
- THE MONARCH
“Crown”
This is another way of referring to the monarchy - which is the oldest part of the
system of government in this country. Time has reduced the power of the monarchy,
and today it is broadly ceremonial. The monarch was Queen Elizabeth II, until she
passed away (8 september 2022) leaving the throne to her eldest son, Prince Charles.
After his coronation, he is proclaimed King Charles III
118
THE MONARCH
119
PARLIAMENT
The former Monarch
• Her Majesty Queen Elizabeth II

(House of Windsor). (1926; - 2022 )
• Queen of the United Kingdom and 15

other Commonwealth Realms.
120
1926-2022
121
8 September 2022 : Queen Elizabeth II passed away (died)
She was 96 years and had reigned for 70 years on the United Kingdom.
Most Britons, have never known another monarch. Queen Elizabeth II was an huge figurehead
But the Queen Elizabeth II era has ended. At 96, she was Britain’s longest-serving monarch.
Illness kept her from some engagements. Britain is now facing a hard time that King Charles
III will be the new monarch.
Most people want the British monarchy to continue: “the Queen is dead, long live the King”
King Charles III is not the monarch most Britons want, according to opinion polls. As of
May, 60% wanted the monarchy to continue, but 37% favored it skipping a generation to Prince
William, while just 34% favored Charles.
“the Queen is dead, long live the King”
122
PARLIAMENT
The New Monarch
• His Majesty King Charles IIII (House of Windsor). (1948; - )

• King of the United Kingdom and 14 other Commonwealth Realms.
123
THE MONARCH
The former sovereign was Queen Elizabeth II since 1952, until 2022
The Monarch
O reigns but does not rule.
O represents the State of the United Kingdom all around the World.
o has his/her own prerogatives which are:
❖ Giving royal assent to Bills coming from the Parliament ;

❖ Appointing authority:
- Prime Minister, Lords
124
THE MONARCH
The role of the Monarch and the Royal Family is mostly ceremonial.
Also, as a constitutional Monarch, the Queen does not express her own political opinions in a
public forum. The Queen has a deep sense of religious and civic duty and takes her coronation
oath seriously.
Apart from her official role as Supreme Governor of the established Church of England,
she is a member of that church and also the national Church of Scotland.
"Pros" and "Cons" of the Monarchy: advantages and drawbacks
Pros : The Monarchy is perceived as a part of the country's historical legacy and a form of
stability during trouble times, the Monarch remains to unite her subjects.
Cons : Speculation on her personal fortune and the opacity are usually questioned.
See the paradise Paper scandal
The wish for some Britons to get rid of a Monarchy that costs a lot to taxpayers, despite their
massive wealth
125
English Legal Professions
126
How to become a Barrister?

How to become a Solicitor?
127
Unlike the French or American systems where there is one legal
profession, since the 14th or 15th century, the legal profession in
England and Wales is divided into two parts:
- Barristers
- Solicitors
128
Barristers are specialised in pleading and
advocating before The Courts.
Until recently, the public could not go directly before
Barristers with their cases and had to do so through
the intermediary of Solicitors.
Now, it is possible, depending on the cases.

❖They used to represent parties in Court.
❖They are specialised in litigation matters.
129
They also give legal advices to Solicitors on specific legal subject
matters. Some non-legal professionals have the right to instruct
directly Barristers without the intermediary of Solicitors.
To become a Barrister, students must have obtained first:
❖Either the LLB (bachelor of law) at Law faculties
❖or after a non-law degree (in countless fields) an additional

degree called GDL: (Graduate Degree in Law)
Future Barristers must go at a school of Law in order to prepare the

selective BPTC (Bar Professional Training Course).
130
If they pass, they are selected in one of the four prestigious Inns of Court in
London:
Inns of Court are non-academic legal Societies existing since the

Middle Ages where future Barristers must belong to.
They provide practical trainings to their members and students. The latter
must get qualifying units in connection with special events and dinners
organised inside the Inns called: « keeping terms .»
Each Inn has its owns traditions.

131
They start by a one-year training internship called:« Pupillage »
with an established Barrister.
After this period the trainee Barrister will be entitled to apply

to sets of Chambers. A « tenancy » (a permanent place) would
be given to him and then starts as a Qualified Barrister and
be: « called to the Bar » by his Inn of Court and the Bar
Council.
When they fail, they have to do a 6-month additional period as

« Squatters » in Chambers.
132
-Barristers used to plead before the Highest Courts, represent and
litigate a large number of persons no matter the business or cases are.
-Clerks in Chambers manage the practices of Barrister

members. They are contacted by solicitors who seek advice
or want to draft a pleading.
-Until recently Barristers did not have the right to be approached

by anyone other than a solicitor.
-Barristers have two functions: Representing people and

pleading before the Courts and giving legal advice as specialists
for Solicitors.
133
The Best ones are appointed as QC: « Queen’s Councel » by
the Commission of Judicial Appointment. They “take silk”
which means that their robes are made of silk. They are often
referred to as “Silks’”. This is normally the first step to
become Judge.
They only concentrate on advocacy letting the preliminary

work to simple or junior Barristers.
❖QCs take the most difficult cases
134
A Solicitor is specialised:
❖in legal advice for the public

❖Preparing legal documents: drafting contracts, Wills
(testaments)
❖Litigation: by advising clients when litigation/disputes occur.
They then prepare the cases for the trial.
Before the Courts and legal Services Act 1990, they could just
advocate before the lower Courts.
❖Since then, if they obtain a specific qualification, they become

Solicitor advocate and present cases before the higher
Courts. 135
To become a Solicitor, students must have obtained
first:
❖ Either the LLB (bachelor of law) at Law faculties
❖ or after a non-Law degree (in countless fields) an

additional degree called CPE/GDL: (Common
Professional Examination - Graduate Degree in Law)
❖ They have a one-year Legal Practice Course (LPC).
136
❖ The LPC must give the basic skills to become a solicitor
❖ After getting the LPC candidates have a two-year training
contract in a Law firm and are called « trainee solicitors »
or « articled Clerks. »
❖ After this training they are normally admitted to the roll

of the Law Society’s list as a solicitor.
❖ Fully qualified Solicitors may work as either sole

practitioners or in a Law firm with other solicitors.
The "Law Society" is the independent professional body for

solicitors.
137
A reform took place which led to a new format called
the Solicitors Qualifying Examination (SQE)
It is being phased in to become the new centralised way

to qualify as a solicitor in England and Wales.
It will eventually replace the Legal Practice Course

(LPC) route to practice.
138
To become a solicitor, the route to qualifying is
changing, with the introduction of the Solicitors
Qualifying Examinations (SQE).
The transition from the Legal Practice Course (LPC)

route to the SQE route will be complete by the end of
2032.
There are a range of courses that will prepare for a

career as a solicitor, as part of the new SQE
qualification route,
139
THE NOTARY PUBLIC
A notary public is as referred to the term « public » is a

public officer who used to provide legal assistance to the
public in non - contentious matters. He usually drafts and
executes legal documents.
140
The Court System
141
142
The Court System
English and Wales Judicial system is based on lower and
higher courts system.
THE LOWER COURTS

1) Magistrates’ Courts:
Are composed of "Justices of the peace" called Magistrates. They

do most of the judicial work in the Country. For instance, 95% of
criminal cases go before the Magistrates’ Courts. The most famous
Magistrates’ Courts is located at Bow Street Central London.
143
The Court System
Magistrates’ Courts are composed of part-time and unpaid « Lay
Magistrates » also called Justices of the peace, coming from the
local community.
➢ They are not legal professionals just simple members of

the local community.
➢ However, they are assisted by members of the legal
profession called Court Clerks (often trainee solicitors
or Barristers).
➢ They hear cases by a panel of three lay magistrates but sometimes,

for more complex cases, District Judge may sit and hear cases
alone.
144
The Court System
The District Judge is a professional full-time judge in
charge of a Magistrate’s Court. He also has a Deputy (adjoint).
District Judge who assists him.
Magistrates Court:
➢ Hear most Criminal cases
➢ Hear only some civil matters, such as
Family issues, personal protection orders, local gambling,
maintenance allowance for spouses and children. (Most of the
civil matters go to the County Court.)
145
The Court System
The Magistrates Courts have enlarged jurisdiction more specifically in
criminal matters.
Most of the work of the Magistrates’ Courts is hearing criminal cases in

a panel.
But the composition of the Court may vary depending on the

importance of the offence.
Professional judges (District Judge or Deputy District Judge or Circuit

Judge) used to hear cases for more serious offences.
The Crown Court is in charge of the more serious offences.

146
The Court System
2) County Courts:
❖ located in County Courts Centres with one District Judge
(full-time Judge) and one Circuit Judge
❖ County Courts have an enlarged jurisdiction in civil matters

from the smallest claims (worth over 5000£ to 15 000£)
to much more complex cases.
❖ Where individuals, businesses or companies seeking relief for

infringement of rights: Contracts, Torts (civil wrongs), money
recovery, Trusts and Wills not exceeding 30.000 £
❖ The High Court of Justice normally hears more complex cases.

147
The Court System
3) The Family Courts:
These Courts have specific jurisdiction on family matters
even if Magistrates’ Courts and County Courts may have
jurisdiction sometimes for the smallest cases.
Family Courts deal with:
➢ Private matters: parental disputes, children custody
and financial support, divorce (decrees of absolute
divorce or nullity)
or
➢ Public law: disputes involving local authority to protect
children, care orders, domestic violence, adoption… 148
The Court System
• 4) The Crown Court:
▪ Crown Court is the only one single entity which deals with
complex criminal matters but to be present within 77
Court centres across the Country (England and Wales).
The most famous Crown Court is the Old Bailey located
Central London.
▪ Deals with cases based on « indictable only ,» cases

where defendant is subject to jury trial or cases where the
defendant has been convicted before the Magistrates’
Courts but sentencing before the Crown Court, appeal
from Magistrates’ Courts.
149
The Old Bailey
• The Central Criminal Court,

London
150
The Court System
Although the Crown Court is one single entity, it is
located across the Country but more specifically in
three main centre areas:
▪ First - tier centres:

▪ Second tier centres:
▪ Third tier centres
➢ The first and second centres are visited by High
Court Judges for criminal and the third by Circuit
Judges only. 151
The Royal Courts of Justice • It houses the High Court of Justice and the Court of Appeal.
The Court System
• THE HIGHER COURTS
The most serious cases either in civil or criminal matters are
handled before the High Court of Justice, depending on the
seriousness of the case and the jurisdiction of this Court.
The High Court of Justice is composed of three Divisions:

➢ The Queen’s Bench Division (QBD)
➢ The Chancery Division (the most important)
➢ The Family Division
Each Division is ruled or managed by a president.
153
The Court System
The Queen’s Bench Division (QBD):
73 Judges who hear criminal cases (from the Crown Court) as well
as civil cases.
Civil cases deal with: Common law business, all Torts (claims for
damages based on civil wrongs), breach of contracts except
those sent to the Chancery Division
o Administrative Court: is a part of the QBD:

Judges Hear cases which deal with the lawfulness of the
Acts of Central or local Governments and applications for
judicial review. 154
The Court System
❖ Criminal matters with the Crown Court:
QBD is also concerned with criminal matters with the
Crown Court where Judges of the QBD used to sit across the
country.
❖ The Chancery Division:

The head of the Chancery Division is the Chancellor. (18 Judges
and 6 Masters and other Circuits Judges sitting outside London
in Centres).
❖ Chancery division has a very wide range of civil and business

cases concerning substantial sums of money including
business (companies, patents) property, etc.
155
The Court System
The Family Division:

o Is one of the three Divisions and deals with family
Matters.
O hear appeals from the Family Courts if so.
156
The Court System
• THE COURT OF APPEAL
The Court of Appeal (CA) deals only with the appeals of lower Courts
or Tribunals. The CA is based at the Royal Courts of justice London.
➢ The Court of Appeal is divided into two Divisions:
❖ The Lord Chief Justice is President of the Criminal Division

❖ and the Master of the Roll is the President of the Civil Division.
Normal composition is 3 Judges. Decisions are taken by majority.

Normally a permission to leave to appeal is required.
157
The Court System
The Criminal Division hears appeal from the Crown Court decisions relating to
indictment, sentence or conviction. Most of the time, these appeals are made by
offenders (person who have been convicted of an offence)
Appeal process:
➢ The party (the Appelant) who wants to appeal from a lower Court’s
decision must have « proper legal grounds .»
➢ Normally the Party during the previous hearings before the
lower Court asked in advance permission to appeal.
O if it was refused, the Party must get that permission from the Court of Appeal:
« leave to appeal .» But sometimes claimants are granted a leapfrog appeal giving
the right to go directly before the UKSC without going before the Court of Appeal.
158
The Court System
The UK SUPREME COURT
159
160
The Court System
Since the 2005 Constitutional Reform Act, effective in

2009, there is a new judicial body, the UK Supreme Court.
It has replaced the Appeal Committee of the House
of Lords.
The Supreme Court plays a very important role in
the UK.
▪ Hears the final appeals on a point of law.
▪ Permission to leave to appeal from the lower Court is
normally required.
▪ There are 12 Judges, with one President (Lord Reed) and
one Deputy President (Lord Hodge). 161
162
The Right Honourable
Robert Reed, Baron
Reed of Allermuir
President of the Supreme

Court of the United Kingdom
163
The Right Honourable
Patrick Hodges
Deputy President of the

Supreme Court of the United
Kingdom 164
The Court System
The UK Supreme Court
- Hear major cases coming from the lower Courts.
Famous cases :
On the article 50 of the EU Lisbon Treaty :
❖ It gives the right for a Member State to withdraw
from the EU
❖ On the Prime Minister to advise the Queen to

prorogue Parliament’s session for a certain period of time
165
The Court System
UK Supreme Court has jurisdiction in either civil, or

criminal matters, including also, constitutional matters.
Final appeal process:

➢ Permission orders must have been given from the
Court of Appeal.
➢ Applicants can only make an application directly to the UK
Supreme Court only if previously the Court of Appeal has
refused to grant such a permission.
166
The Court System
• Under the Administration of Justice Act 1969, it is possible to appeal
directly from the High Court to the Supreme court, by « leap –
frogging » the Court of Appeal ( it is called the leap frog procedure).
• This leap –frog procedure is possible only if :

- The trial judge grants a certificate of appeal
- The decision involves a point of law of general public
importance
- And this point of law is related to the construction of a statute or
statutory instrument or is one for which the High Court judge is
bound by precedent from the Court of Appeal , House of Lords*,
or Supreme Court.
167
The Court System
• This leap frog procedure? Rings a bell in French judicial law?
168
The Court System
• This leap frog procedure? Rings a bell in French judicial law?
• There are « similarities » with the French QPC (question

prioritaire de constitutionnalité).
• Which begs the question:

• Is the Supreme Court of the UK a constitutional court or not?
169
The Court System
• The UKSC: a Constitutional Court?
See Lady Hale (Former President of the UKSC)

• The Supreme Court of the United Kingdom is not a
constitutional court on continental lines nor a Supreme Court
as the US or Canadian Supreme Courts.
• “But how could we do that without a written Constitution against which the
validity of the laws passed by Parliament can be judged? This is not to say that
the United Kingdom does not have a Constitution. Of course it does. But it is not
enshrined in a written document which has a special and superior legal status and
cannot readily be changed.”
170
The Court System
• UK Constitution is not enshrined in a written document which has a
special and superior legal status and cannot readily be changed. Two
Principles
1°) The Queen in Parliament is sovereign and can make or

unmake any law; and
2°) Both the governed and the governors are subject to the rule of law:
just as individuals and private entities must obey the law, so ministers,
officials and public bodies must act within the powers which the law has
given them.
171
The Court System
•UKSC 5 ( [2017] 24 January 2017):
• Ability of ministers to bring about changes in domestic law by exercising their
powers at the international level.
Held: the Supreme Court holds that an Act of Parliament is required to
authorise ministers to give Notice of the decision of the UK to withdraw
from the European Union.
• [2018] UKSC 64 (13 December 2018)
Does the Scottish Parliament have power to legislate for the continuity of
laws relating to devolved matters in Scotland which are now the subject of
European Union (“EU”) law but which will cease to have effect after the United
Kingdom (“UK”) withdraws from the EU?
Held: The Whole of the Scottish Bill would not be outside the legislative
competence of the Scottish Parliament. Except section 17 which would be outside
the legislative competence of the Parliament because it would modify the Scotland
172
Act and, at least because they would modify provisions of the UK Withdrawal Act.
The Court System
• Judgment of the Court - 24 September 2019
• [2019] UKSC 2019/0192/193 : Whether it is unlawful to the PM

to exercise his power to advise the Queen to prorogue Parliament
for length period of time of 5 weeks?
• First stage (test): Whether the act of the PM was justiciable?
Held: The Court holds that it is. The courts have exercised a
supervisory jurisdiction over the lawfulness of acts of the
Government for centuries. As long ago as 1611, the court held that
“the King [who was then the government] hath no prerogative but that
which the law of the land allows him” (summary Judgment). 173
The Court System
• Second Stage (test) what are the limits to that power?
Legal reasoning is based on two constitutional principles: called by the UKSC «
fundamental principles .»
1°) Parliamentary sovereignty: that Parliament can make laws which

everyone must obey: this would be undermined if the executive could,
through the use of the prerogative, prevent Parliament from exercising
its power to make laws for as long as it pleased.
2°) Parliamentary accountability: in the words of Lord Bingham, senior Law

Lord, “the conduct of government by a Prime Minister and Cabinet collectively
responsible and accountable to Parliament lies at the heart of Westminster
democracy.” The power to prorogue is limited by the constitutional principles
with which it would otherwise conflict.
174
The Court System
• The UK Supreme Court (UKSC) is that of a great importance in the
judicial System. Justices of the Court are very important persons and
well known outside the Court in media. Why ?
Because the British legal system is based on precedents
and the image of the Judges plays a very important
role throughout the Society.
• During the Prorogation’s hearing for instance, The President of the

UKSC Lady Hale wore a spider brooch. And media and people
wondered what was this spider brooch's meaning. (Everything is
scrutinised.)
175
Vocabulary
Action / to bring an action: poursuite / engager des poursuites
Admissible (evidence) : recevable ( preuve)
Admission : aveu, reconnaissance ( des faits)
To affirm : confirmer ( un jugement)
To amend ( a decision) : Modifier ( une décision)
Appeal by way of case stated (GB) : appel sur un point de droit
Appellant /appellee : appellant / intimé
Appellate Court : instance d’appel
To challenge : récuser ( un juré, une preuve)
To charge : accuser (GB)
Claim : plainte, requête
Clerk to the justices : officier de justice chargé d’aider les juges non professionnels d’une
Magistrate’ court.
Contentious / non litigious : litigieux / amiable
To dismiss, a dismissal: rendre une ordonnance de non –lieu, débouter
To hear (a case/ an appeal) : connaitre d’une affaire , d’un appel
A hearing : une audience, une audition
To indict : inculper
Indictable (offence) : passible de poursuites (US); infraction grave, majeure (GB)
Indictment: mise en accusation formelle
176
Vocabulary
Jurisdiction : juridiction, tribunal; compétence
Appellate juridiction: juridiction d’appel
Exclusive juridiction : competence exclusive
Original jurisdiction : juridiction de première instance
Juror /jury : juré / jury
Justice of the peace : : juge non professionnel,juge de paix
To lodge (a complaint against) : deposer (une plainte contre)
Magistrate : juge de première instance (juge de paix)
Lay magistrate : juge non professionnel
Stipendary magistrate : juge professionnel appointé
Mediation : conciliation
Miscarriage of justice : erreur judiciaire
Offence : infraction, délit pénal
major/indictable offence : délit majeur
minor/petty offence : délit mineur
Offender : délinquant, criminel
Penalty : peine, sentence
To quash ( a decision) : annuler , casser (une décision)
To remand : renvoyer une affaire ( devant la 1re juridiction)
A remedy : recours, réparation
177
Vocabulary
To reverse (a decision) : révoquer, casser (un jugement)
To pass sentence : prononcer une peine
To sit : siéger ( for a judge/court)
A suit , a lawsuit : procès ( civil ou pénal)
Summary procedure : procédure rapide, simplifiée
Trial : procès
Tribunal : tribunal administratif (GB)
178
Contract Law
179
Contract Law
Introduction
Freedom is maybe again one of the main features of
English contract law as well as reasonableness.
❖ English contract law has been one of the key Business

development of the United Kingdom through the history.
❖ English contract law is made of pragmatism, simplicity and

reasonableness.
180
Contract Law
Introduction
1) The main conditions to form a valid contract:
A Contract starts for the « promisor »or « offeror » by having:
a) Intention to create legal relations and to be legally

bound if accepted.
b) an offer and an acceptance in return.
c) An existing consideration unless a deed exists
181
Contract Law
Introduction
I- FORMATION OF THE CONTRACT
EXECUTIVE SUMMARY
First, Parties must have the capacity to contract
• The contract must not be contrary to public policy
• The offeror must have had an intention to create
Legal relations: Means a clear and definite offer with
clear terms deriving from the intention to be legally
bound if accepted.
• An acceptance from the promisee.
• An existing Consideration except for contracts made
under deed 182
Contract Law
Exception to consideration, the Deed process:
• A deed is a formal requirement which is sufficient to

render the prime binding without consideration.
• The promisor undertakes expressly to do or refrain to

do something and delivers a specific legal instrument signed
as a deed or executed as a deed.
183
Contract Law
• This “instrument” is a valid one for an individual as a deed if :
a) Signed by the promisor in presence of a witness or with

two witnesses who each attests the signature
or
b) Delivered as a deed.
- With a deed inserted into the contract parties don’t need
consideration
184
Contract Law
Capacity to contract:
see Balfour vs. Balfour2 K.B. 571 [1919] : It is a matter of

public policy that agreements between spouses cannot
be enforceable before Courts even if there was sufficient
Consideration.
Scope of the contract: It is generally limited to the Parties, unless

they expressly agree to confer a right to a third party if this contract
wholly satisfies the requirements of the Contracts Act 1999 (Rights
of Third Parties).
185
Contract Law
OBJECTIVE VIEW vs. SUBJECTIVE VIEW
• Objective view or test: Courts have long, an objective view of

the contract. So the law is not so much concerned with what is in
the minds of the parties (subjective view) but what can be
inferred from their conduct or what they did.
• See Lord Denning’s opinion on the matter :

"In contracts you do not look into the actual intent in a man's mind. You
look at what he said and did. A contract is formed when there is, to all
outward appearances, a contract." In Stover v Manchester City Council
[1974] Lord Denning
186
Contract Law
• Courts are reluctant to take into account subjective intention
of the parties compared to the « Poussin » or « Fragonard » cases in
France where French Courts have a
pretty much more subjective view.
Parties are supposed to be reasonable.
Exception: Fraudulent conduct of one of the parties.
Where one party perfectly knew that he has/had no intention to be

legally bound by what he expressly stated (by drafting some terms) or
did by conduct, and that the counterparty had relied on it, the
objective test will also be put aside.
187
Contract Law
The law will not apply the objective criteria:
❖ Hartog v. Colin & Shields [1939] London hide Merchants

proposed to sell 30 000 hare skins at a price of 10d per skin to a
Belgium furrier. But in the written agreement they wrote 10d per
pound which means that this latter price was one third
cheaper (1/3 moins cher) than the first one.
The British Merchants refused then to fulfil the contract.

The Belgium furrier claimed damages for lost of benefit.
Court held: the Contract was void at such a lower price, because any
professional would have known it was not a reasonable price but
a mistake and had a duty to correct it. 188
Contract Law
Example:
• Shares sold over the telephone by dealers to small

investors and then tried to sell it again several times to
another investor because of the rapidly growth of the
market and stocks' value.
O Held : that the sellers (dealers) were bound by their

original agreements.
189
Contract Law
A – THE OFFER:
English contracts are formed by:

- an offer made by the offeror or promisor to the
offeree
or promisee
- An acceptance in return by the offeree
Offers must be distinguished from an invitation to

treat( or invitation to bargain) which is less than an
offer.
190
Contract Law
1) - Offer vs. Invitation to treat/bargain:
Examples of invitation to treat:
➢ Advertisements are not offers. (See Partridge v Crittenden
[1968])
➢ Displays of goods on a shelf in a self-service store are not
offers for the seller but for the buyer, the consumer having
the choice to select the goods he wants. (see Pharmaceutical
Society of Great Britain vs. Boots Cash Chemist Ltd [1953]
QB)
Invitation to treat is not an offer but merely open negotiations. There is

a lack of certainty. Parties may change their minds. Ex: public tenders
or tenders (des appels d’offres publics ou des appels d’offres) are invitations to
treat.
191
Contract Law
Carlill v Carbolic Smoke Ball Cie [1893] QB 256 :
•A Company, Carbolic put advertisements on newspapers claiming that if

somebody was ill because of a type of flu and used its medical products, Carbolic
smoke ball, it will be cured of influenza.
• In order to prove that its product could cure influenza, the Company
promised to offer an award of 100£ if the patient was still hill after using
its medical drug (the smoke ball). The Cie put on a banking account a sum
of 1000£ in order to pay people who would have been still ill after
taking the product. Mr Carlill used the product but nevertheless was still ill.
He decided to get the 100£ compensation promised by the Cie, but
the latter refused. Mr Carlill sued the Cie before the Courts.
• Held: there was an existing contract the Carbolic Cie had made an offer and had
to pay. 192
Contract Law
The Carbolic case is important !
In “Carbolic Smoke Ball” the offeror (the Cie), acted

with all the appearances of an offer, inducing that
he might be bound by what he had declared in
newspapers and his conduct (putting a certain
sum in a banking account)
193
Contract Law
2) - Intention to be legally bound:
• Main issue: Did the parties intend to contract or not?

To be legally bound means that parties recognise in advance they
will be fully engaged by their words or conduct.
➢ This intention is presumed in commercial relations
➢ This intention is not presumed in domestic or social
agreements (see: Balfour vs. Balfour . This presumption of not
being legally bound in that matter for spouses, only concerned
those who are not separated.
194
Contract Law
Example of an existing presumption see: Carbolic
O but the objective view of the contract prevails in different ways

which may rebut (rendre réfragable) the presumption in domestic
relations.
O when one of the parties invokes the existence of a contract

and the other denies, the latter often tries to establish there was no
intention to be legally bound or no consideration.
195
Contract Law
B – THE ACCEPTANCE + COMMUNICATION
Definition: This is « a final and unqualified expression of assent

to the terms of an offer » . Which means no uncertainty must arise
from the acceptance.
The acceptance must fit the terms of the offer, see

Hyde vs. Wrench, 1840. A person offered to sell his farm for
1000£, the offeree offered in return 950£. The offeror refused and
the offeree wrote to the offeror to finally accept 1000£. But the
offeror never replied.
O Held: No contract had been concluded .To be valid the acceptance
must be communicated to the offeror, the other party. 196
Contract Law
C – CONSIDERATION
Definition: Consideration is something or exchange of value,
given for a promise. Consideration is required in order to make
the promise enforceable as a contract.
Consideration is traditionally considered as an exchange of

value to the detriment of the promisee (in that he may give value)
and a benefit to the promisor (in that he may receive value).
The Contract needs to be supported by consideration. If there is

no consideration, the contract is not valid. But the contract is
valid without consideration if it is supported by a deed. It may
also be valid via estoppel. 197
Contract Law
True meaning of Consideration, see: Curie vs. Misa (1875)
« Consideration may consist either in some rights, interest, profit, benefit that
accruing to the one party, or some forbearance, detriment, loss, or responsibility,
given, suffered or undertaken by the other .»
As the offeror is giving his own consideration with the offer,

the offeree or promisee must give something in return to
the offeror. The consideration given to the offeror is a loss for
the offeree.
Consideration must only be sufficient:
O It means consideration need not be adequate value of what is
given in return to the promisor.
198
Contract Law
Nominal consideration: in business matters, ex: contract for the
sale of business, the payment of 1£ in return for that business
is sufficient consideration and called « nominal consideration ».
O the agreement by which a woman was allowed to stay in

a house 1£ a year has been considered sufficient Consideration.
O exception: But if one of the parties has been put under

pressure to accept such a small amount the contract shall be
considered in law as duress and the contract will not be enforceable.
199
Contract Law
How to find consideration where consideration takes the form
of something other than a promise to pay a sum of money?
• Chappel & Co Ltd vs. Nestlé 1960 HL
Plaintiffs were owners of a musical copyright. The defendants

offered to supply gramophone records (des disques enregistrés) to the
public, which included 3 Nestlé chocolate bars for a certain price.
The defendants offered to pay to the owners of the musical record
only the required royalties pursuant to the Copyright Act, which means
around 6% of the ordinary retail price of the record.
200
Contract Law
• Sending chocolate bar wrappers in addition, was a

part of the consideration for the sale of the records.
Payment of royalties alone were not sufficient

consideration.
201
Contract Law
Past consideration is not a valid consideration:
See Thomas vs. Thomas 1842
O Consideration for a promise must be given in return for a

promise. It cannot be something which happened in the past.
O Where consideration has been carried out consideration

has been considered as executed. Where consideration is to be
executed, one party is bound by the contract by promising to do
something or not to do something.
202
Contract Law
If the consideration has already been done before the contract
was made, and given for something else, there is no consideration.
• Ex: A seller has sold a good and then decides after to guarantee
that good. The guarantee is not contractually binding for the buyer
if the good is then defective.
• A promise to make a payment for past services is not
sufficient to create a good consideration.
• Consideration for a promise must be given in return for a promise
at the time of the agreement. It cannot be something which
happened in the past.
203
Contract Law
CONSIDERATION MUST MOVE from the promisee to

the promisor: « What did you give in return? »
• This principle means that the promisee can enforce

the promisor’s promise only if himself, he has
provided consideration for it. The promisee must suffer a
detriment in exchange of the promise.
204
Contract Law
The pre-existing duty rule:
Principle: Consideration must not be a duty or obligation already
imposed by law.
Exception: It is different where consideration is a pre-existing

obligation deriving from a contractual duty owed to a third
party, the consideration is still a valid one in the contract.
See: (Shadwell vs. Shadwell 1860): An uncle promised to give a

certain sum of money, during his lifetime to his nephew until the
incomes of this nephew would derive from his job as a barrister if he
intended marriage with a specific person called Helen Nicholl.
205
Contract Law
• The uncle failed. His nephew brought a claim and succeeded. The
duty to marry with a third party (Helen Nicholl) was the consideration
owed by the nephew that he executed.
Consideration must not be a duty or obligation already

imposed by the law at the time of the contract
(see Collins vs. Godefroy 1831).
A Barrister subpoenaed (obliged to give evidence as a witness in
Court) and brought a claim for payment to his client.
• Held: no consideration, no contract, no payment
206
Contract Law
D - CONSIDERATION & PROMISSORY ESTOPPEL
• Does the promisor as the creditor of a debt, has the right to

go back on his promise after the debtor has repaid a part of the
debt ?
• If an agreement between a debtor and creditor by which the

debtor offers to pay part payment of the debt he owes, and the
creditor considers that offer, to only pay part payment of the
debt, the creditor will be subject to the doctrine of promissory
estoppel if he goes back on his promise.
207
Contract Law
1) At Common law: see Williams v Roffey Bros Ltd (1991):
Contract between a carpenter (Plaintiff) and building contractors

(Defendant) by which the Carpenter will be paid 20.000£
for 27 flats. But the price of 20.000£ was not enough and the
Carpenter was in financial trouble and stopped working and
bring a claim. An agreement was found for a further
sum of £10.300 to be paid for £575 per flat.
The Carpenter had already finished 8 flats but only received £1.500.
He then brought another action.
The Court of Appeal held: that the Plaintiff must be paid as

he had provided good consideration for the additional payment.
208
Contract Law
Foakes vs. Beer (1884) HL
• At Common law, Payment of part of a debt is not good consideration
for a promise to discharge the entire debt.
- Mr Foakes (debtor) owed a debt of around £2000 to Mrs Beer
(creditor) and 4% interest after a judgment until full payment.
- An agreement was found for more time the debtor to
pay by instalments his debt, but did not mention the interests.
- 7 years later, Mrs Beer sought to recover the interests.
- Held by the House of Lords (HL): The agreement was not

supported by consideration for the debtor. Mrs Beer had the right to
recover interests. But at the time of Foakes vs. Beer, the estoppel and
Hughes v Metropolitan railway Co (1877) remained unknown of the
Law Lords.
209
Contract Law
2) At Equity:
- Central London Property Trust vs. High Trees Ltd (1947)
- D&C Builders vs. Rees (1966)
In this latter case (D&C), Lord Denning MR (Master of the Roll) referred
to equity and his famous case High Trees, but dismissed the debtor’s appeal.
In “High Trees” case the conclusion is: where there is

« a true accord » by which, the creditor has decided to discharge part of the
debt or the remaining debt, he cannot go back on his promise in equity.
« A promise to accept a smaller sum in discharge of a larger sum (…) is binding
notwithstanding the absence of consideration .» That accord must not be the
result of pressure by one party to another (D&C vs. Rees)
210
Contract Law
History
Lord Denning has revived the doctrine of

estoppel until now by finding this old case
Hughes vs. Metropolitan Railway Co (1877)
which remained unknown for the House of
Lords in Foakes vs. Beer (1884).
211
Contract Law
• EXECUTIVE SUMMARY
English Courts use the objective view of the contract rather than the
subjective view.
➢ One must refer to what the parties have said, written or done
by conduct.
• Contract needs
➢Clear offer intended to be legally bound
➢Acceptance which fits in with the offer
➢Consideration: an exchange of value in return
for the offeree to the offeror
not need to be adequate
➢ and if not, a deed = specific requirement
➢Or the existence of estoppel at Equity: (High Trees, etc.)
212
Contract Law
II - TERMS OF THE CONTRACT
Contracts are based on terms written by the parties and agreed by them
but also imposed by the law (Statutes law and/or the Courts).
Express terms: are statements made by Parties which have been

incorporated into the contract or imposed by the law.
Implied terms: are clauses imposed by the Law itself (Statutes law and
case law)
o Ex: Sales of Goods Act 1999 and Consumer Act
213
Contract Law
The terms of the contract dictate how contract is to
be performed by the parties.
Only terms of the contract if not performed by one of

the parties, can lead or be subject to a breach of that
Contract.
Thus the innocent party will have the right to claim

damages.
214
Contract Law
DISTINCTION BETWEEN STATEMENT & TERMS
Courts used to apply objective test to identify terms and
representation.
➢ Terms are not representations which are only statements of
facts normally not incorporated into contracts.
➢ But sometimes some statements are so important that

they have been incorporated to the Contract as they
were one of the core subjects of the Contract.
Ex: Statements based on the age of a car:
- Oscar Chess v Williams 1957 CA: Innocent statement made by the
defendant having no idea of the age of the car
Dick Bentley Prod° Ltd vs. Harold Smith 1965 : a car dealer was in
position to know. 215
Contract Law
III - SET THE CONTRACT ASIDE WHAT REMEDIES?
A – MISREPRESENTATION
➢ Statement(s) of one party may have induced the Party to enter into
the contract by mistake as a result of a false statement of fact of the
other or a third party.
➢ Misrepresentation: is an unambiguous false statement of fact

which induces the party misled to enter into a contract. It can be
fraudulent, negligent or innocent.
➢ The claimant must prove that « but for » (à moins que /à défaut/en
l’absence de) this representation he would not have entered into the
contract. The representation must play a real and substantial role
(Raiffeisen ZentralBank Osterreich A.G. vs. Royal Bank of Scotland ) 216
Contract Law
Forms of statements:
O Statement of opinion: it would render the maker of this statement
liable because on the ground of this statement he’s supposed to have
expertise and have to exercise it with reasonable care and skill.
O Statement of intention: render also the person who made
it liable if it is false.
o Statements made by conduct: Spice Girls Ltd vs. Aprilia

2002 CA.
A Cie invested as a sponsor of the Spice girls concert tour but did not
know that one of the Spice girls had already intended to leave the group
before the sponsoring contract was signed and that was known of the
other spice girls
Held: there was misrepresentation by conduct. 217
Contract Law
Misrepresentation made by conduct is used because English law does
not recognise in full duty of disclosure and good faith in a broader
way (they are piecemeal solutions according to Lord Bingham).
Courts are reluctant to impose a duty of disclosure: because

people are supposed to be reasonable acting in their best
interests.
Exception: Insurance Contract, the insured is subject to a duty to

disclose so as the insurer may decide to enter the Contract or not.
O Negligent Misrepresentation: Hedley Byrne vs. Heller H.L.

1964 . Negligent statement made by a Cie’s bank concerning the current
state of finance of a Cie with whom a contract had to be signed. 218
Contract Law
Ex: Statements based on the age of a car:
o Innocent Misrepresentation:
Oscar Chess Ltd 1957 CA: Innocent statement
made by the defendant having no idea of the age
of the car.
Dick Bentley Ltd 1965 : a car dealer was in position

to know.
219
Contract Law
REMEDY TO MISREPRESENTATION: RESCISSION
1) Rescission is a remedy applicable to all forms of misrepresentation

(fraudulent, negligent or innocent).
Rescission : résolution du contrat
A powerful solution:
➢Rescission rescinds the contract which means, sets aside the
contract:
o For the past (retrospectively)
O and for the future (prospectively)
(termination for breach of contract by contrast, only apply for
prospectively).
Termination : résiliation du contrat
220
Contract Law
• 2) Damages:
• Courts award damages for negligent or fraudulent

misrepresentation since Hedley Byrne vs. Heller.
• The Misrepresentation Act 1967 has created a right of action

where misrepresentation concerns parties to a contract. But it
also gives discretion to the Courts to award damages.
221
Contract Law
B – DURESS
Duress can take different forms:

O Duress of person, Duress of goods and economic Duress
which appeared in 1976.
1) Duress of person:
➢ Definition: Duress is a threat, an illegitimate pressure by one

person to another in order to force this latter to enter a contract.
o see: Barton vs. Armstrong 1976 AC Privy Council

222
Contract Law
2) Duress of goods:
Definition: is an unlawful detention of person’s goods See now:

Dimskal Shipping Co vs. ITW 1992 AC
3) Economic Duress:
Occidental Worldwide Investment Co 1976 and Pao on vs. Lau Yiu

Long 1980 (AC)
Definition: « It is a coercion of the will as to vitiate consent. »

223
Contract Law
C - UNDUE INFLUENCE
Undue influence comes from Equity. It is close to duress. It supposes
illegitimate pressure but by cheating (tromperie).
This is where one party has taken illegitimate advantage of a

relationship based on trust and confidence to the detriment of
the innocent party who had placed his trust and confidence to
the fraudulent party.
Leading case: Royal Bank of Scotland plc vs. Etridge H.L. 2002
224
Contract Law
D – FRUSTRATION
Definition: it discharges a contract where at the time of its formation
an event occurs rendering the performance of that contract:
➢radically different from what the parties had in contemplation
where signed
➢impossible,
➢Or illegal
Exceptions:
• Frustration will not apply where parties intended to take into account
that event by specific clauses into the contract.
• And where the event was foreseeable (prévisible)
• Where the event occurred is caused by one of the parties’ conduct
225
Contract Law
Effects of frustration:
The effect is to discharge immediately and automatically the
contract. But in the absence of a breach of contract one
cannot bring an action for damages.
Frustrated Contracts Act 1943: All sums paid or payable

in pursuance of the contract before its frustration shall be
recoverable.
226
Contract Law
E - BREACH OF CONTRACT AND TERMINATION
In some cases, it must be clear that one of the parties has no intention
to perform its contractual obligations.
Definition of breach of contract: it is an unlawful failure to

perform its contractual obligations for one of the parties.
• Every breach of contract gives rise for the innocent party to
claim damages for the detriment suffered.
• But it does not always lead to terminate the contract.
• But the innocent party may be able to consider the contract as
repudiated on the grounds of anticipatory breach of contract
before the time of performance.
227
Contract Law
A repudiatory breach of contract is a fundamental breach
which seriously affects the contract.
• It deprives the innocent party to get the benefit of that contract.

Ex: one party informs the other before the term of contract
that she will not perform his obligations. The innocent party
may decide to terminate immediately the contract.
Termination clauses: sometimes, parties may insert termination

clauses into their contracts. It confers to each party the right to
terminate the contract depending on the circumstances.
228
Contract Law
• Hardship clause: clause by which the contract will terminate if an event occurs
rendering impossible for the parties the performance of the contract.
Good faith: English Courts are not so much concerned with good faith.
Courts have long been reluctant to impose an implied term of good faith
as a source of breach of contract which may come to its end.
o but after Yam Seng PTE v International Trade Corporation Ltd in 2013,
The High Court of Justice held again that an implied term of good faith may
arise in commercial contracts in Al Nehayan v Kent 2018.
O the test is based on honesty and relevant information to disclose.
Compared with France where good faith is one of the cornerstones of

French contract law.
229
Contract Law
In particular circumstances of breach of contracts, damages
are not sufficient and the innocent party needs to get relevant
remedies.
• A Party could get specific injunctions or order

requiring the other party to perform its obligations
under the contract or act in a certain way or refrain to
act in a certain way.
Injunctions are an order prohibiting a party from acting in a

certain way, for instance from acting in a way leading to a
breach of the contract. 230
Contract Law
KEY WORDS
• Breach of contract: unlawful failure of the contract ( rupture illégale du contrat).
• Consideration: an exchange of value money, goods, services or whatsoever given
by one party to another to enter a contract ; une contrepartie (assimilée parfois à la cause
en droit français)
• Coercion: contrainte
• Discharge: free from obligations or duties
• Hardship clause: clause where the performance of the contract is
impossible deriving from an event outside of the will of the parties.
(Clause de force majeure)
• Termination clauses: clauses of a contract by which this contract comes to its
end by the will of the Parties according to a specific event. Clauses contractuelles
mettant fin au contrat conditionnées à la survenance d’un ou plusieurs évènements.
231
Vocabulary- Contract Law
Acceptance : acceptation
To bring an action: intenter un procès au civil
Adequacy of consideration : équivalence des prestations; le droit anglais ne la requiert pas dans un contrat
Agreement : convention, accord
To be bound (by) : s’obliger, s’engager
Breach of contract : rupture de contrat
Consent : consentement
genuine consent : consentement non vicié
Consideration : cause, contrepartie, profit
Damages : dommages et intérêts
Deed : acte authentique, acte notarié
Defendant : défendeur
Discharge : resolution (du contrat)
discharge by agreement : resolution par convention entre les parties
discharge by breach : resolution par rupture de contrat
discharge by frustration : resolution par impossibilité d’éxécution
discharge by lapse of time : resolution par prescription extinctive
discharge by performance : résolution par exécution du contrat
Duress : violence
Enforceable : exécutoire
To forbear : s’abstenir
Gentlemen’s agreement : accord à caractère amical, sans valeur de contrat 232
Vocabulary – Contract Law
Invitation to treat : proposition à entrer en relation d’affaires sans conséquences juridiques.
Misrepresentation : déclaration inexacte
Offer : offer
Offeree : récipiendaire de l’offre
Offeror : offrant
Plaintiff: plaignant/ demandeur
Privity (of contract ) : effet relatif du contrat
Promise : promesse, engagement
definite promise : promesse formelle
Proof / written proof : preuve/ preuve écrite
Contract under seal : acte authentique, ace notarié
To set aside : écarter ( un contrat)
Term : clause
express term : clause expresse
implied term : clause implicite
To terminate / termination : résilier / résiliation
Undue influence : violence morale, intimidation
Valid : valable, exécutoire
To vitiate : vicier ( le consentement)
Void /void ab initio/ voidable : nul/ nul de nullité absolue/ annulable
To waive / waiver : renoncer à ( un droit, une requête) / renunciation
Warranty : clause collatérale, subsidiaire. 233
Vocabulary- Contract & Commercial Law
Agency/agent/ principal : mandat/ mandataire/mandant
Collection : recouvrement
Standards forms of contract : contrat type
To deliver (goods) / a delivery : livrer (des marchandises) / une livraison
Frustrated(contract) / frustration: (contrat) impossible d’exécution
In good faith : de bonne foi
Insolvency : insolvabilité
Insurance : assurance
Mistake : erreur
common mistake : erreur reconnue par la Common Law
équitable mistake : erreur sanctionnée par l’Equity
Performance : exécution de l’obligation
Realty : propriété immobilière
Repudiation : résiliation
risk of loss : risque de perte
Sale : vente
Shipping : transport (general), transport maritime
Title/ good title : titre/ titre valable
Trade/home trade/ international trade : commerce/ commerce intérieur/ commerce international
Bulk transfert : vente illicite
UCC (uniform commercial code) : code général de commerce
234
Tort Law
235
Tort Law
Definition:
❖ Tort law is a civil wrong or harm made by one person called

the tortfeasor or defendant, to the detriment of another
person called, the injured victim or claimant by which, the
latter may bring a claim on a legal ground Basis.
❖ Tort law is a legal duty. Tort is a legal duty imposed by the

law itself. The law of Torts is concerned with obligations
arising under civil law, other than by contractual agreement
or the law of trusts.
236
Tort Law
Even if a crime is a wrong, tort law must not be

compared to crimes.
The function of tort law is

❖ To compensate the harm suffered by the victim
❖ To do corrective justice to discourage risky
behaviours and correct it
❖ To vindicate its rights
237
Tort Law
❖ Tort law does not cover all accidental situations or many
unsociable activities.
❖ But many wrongs are not recognised as torts. There are

said to be "damnum obseque injuria” which means,
injuries which do not give rise to legal rights.
❖ According to Lord Rodger“The world is full of harm for

which the law furnishes no remedy.”
❖ The law of torts unlike the French Civil Code for liabilities
is not made of three or four provisions covering up all the
fields of unsocial activities. 238
Tort Law
THE LAW OF NEGLIGENCE
This is by far, the most common tort.
➢ Negligence is tailored around four main elements :
(i) The existence of a duty of care ;
(ii) The breach of that duty ;
(iii) The existence of factual causation & legal
Remoteness.
(iv) A damage suffered by the claimant.
Each of these elements must be established or, are

required, first individually, and then, collectively to
characterise negligence.
239
Tort Law
When the damage occurred, one must answer a set of questions:
➢ Does the wrongdoer owe a duty of care to the victim regarding the
factual situation?
➢ Does the law recognise a specific liability for that?

This is the question of the existence of a duty of care
➢ Was the defendant careless as failing to conform to the standard of

care set by law (which means in substance, by conforming to a
« normal behaviour ,» and what he would have reasonably done or
not regarding the facts).
So this is a matter of breach of duty.
240
Tort Law
➢Has the claimant suffered harm leading to a damage for

which the law holds the defendant as responsible either in
whole or in part? This is a matter of factual causation and
legal remoteness.
Causation: It means the breach of the duty must be the

factual cause of the damage. Courts use the famous Lord
Denning « but for » test held in « Cork vs. Kirby MacLean
1952 CA »:
241
Tort Law
o Courts use the famous Lord Denning « but for » test held
in Cork vs. Kirby 1952 CA:
« If the damage would not have happened but for a particular fault,
then that fault is the cause of the damage »
- Legal remoteness: the damage must be attributable to the

defendant: based before defendant liable for all damages not
matter was its foreseeability (Re Polemis and Furness Withy
& Co 1921 CA)
- On reasonable foreseeability of damage (The Wagon
Mound 1961 Privy Council).
242
Tort Law
DONOGHUE vs. STEVENSON 1932 HL
➢ This case (with High trees in Contract law) is one of
the most famous cases in the field of English civil
law.
➢ It has established a general principle of duty of care,

see:
« You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour »
according to Lord Atkin.
The term « Neighbour » refers to the Bible: « son prochain .» In

Donoghue, Court used an objective view: the
neighbour’s principle. 243
Tort Law
• This is not the way traditionally used by the English Courts, which
prefer to build case by case an effective precedent.
The facts of the case:

•Mrs Donoghue (the plaintiff) and a friend visited a café. Mrs
Donoghue’s friend bought her a ginger beer made of opaque glass. But
there was inside the bottle a decomposed snail. Mrs Donoghue drank a
part of the bottle and got ill as a result.
She decided to sue the manufacturer of the bottle.
She could not make a claim for breach of warranty because she didn’t
buy the bottle.
There was no contractual relationship between her and the

manufacturer.
244
Tort Law
It was held that the Manufacturor owed a duty of care to the
ultimate consumer.
But the interpretation made in Donoghue was too large for the Courts.
That’s the reason why Courts have reduced the scope of Donoghue.
❖ In Ann’s Marton and then, in Caparo vs. Dickman 1990 HL

It redefined the neighbour principle in a narrow way. Courts have added
additional requirements:
✓ There must be a sufficient relationship of proximity

✓ Avoiding acts or omissions which you can reasonably foresee
✓ It must be fair, just, and reasonable to impose a duty of care
depending on the factual circumstances of the case. Which means it
will be at court’s discretion.
245
Tort Law
Caparo Industries vs. Dickman 1990 HL
The case created a test by which Courts would

impose a duty of care where it considers that it is
fair, just and reasonable to do so, depending on the
circumstances of the facts.
246
Tort Law
Robinson (Appellant) v Chief Constable of West Yorkshire Police
(Respondent)[2018] UKSC 4
The way the damage occurred is of a general importance but not
so much to impose a duty of care sometimes. Before public
authorities were not too subject to a duty of care in the course of
their interventions.
FACTS:
the Appellant was an elderly person and was knocked over on a street by
two police officers and a third person a suspected drug dealer whom they
were attempting to arrest. As the officers struggled with Williams, he
backed into the Appellant, who was standing close by. She fell over, and
the three men fell on top of her, causing her to be injured. The officers
had foreseen that
Williams would attempt to escape. They had not noticed that the
Appellant was in the immediate vicinity.
247
Tort Law
Summary Judgment :
• The proposition that there is a Caparo test which applies to all claims in
the modern law of negligence, and that in consequence the court will only
impose a duty of care where it considers it fair, just and reasonable to do
so on the particular facts, is mistaken (21-24].
It is normally only in novel cases, where established

principles do not provide an answer, that the courts need
to exercise judgment that involves consideration of what
is “fair, just and reasonable” [27]. This case concerned an
application of established principles of the law of
negligence and so the existence of a duty of care did not
depend on the application of a Caparo test [30].
248
Tort Law
• Like other public authorities, in accordance with the general law of tort, the police are
subject to liability for causing personal injury [45-48]. On the other hand, as held by
the Supreme Court in Michael v Chief Constable of South Wales Police (refuge and
others intervening) [2015] UKSC 2, the general duty of the police to enforce the
criminal law does not carry with it a private law duty towards individual members of
the public. The common law does not normally impose liability for omissions, or, more
particularly, for a failure to prevent harm caused by the conduct of third parties [50].
• The case of Hill v Chief Constable of West Yorkshire [1989] AC 53 is not

authority for the proposition that the police enjoy a general
immunity from suit in respect of anything done by them in the
course of investigating or preventing crime. The effect of Hill is
that the police do not owe a duty of care, in the absence of special
circumstances, to protect the public from harm through the
performance of their function of investigating crime [54-55].
249
Tort Law
• The authorities relied on by the respondent [56-66] are not inconsistent
with the police being generally under a duty of care to avoid causing
personal injury where such a duty would arise according to ordinary
principles of the law of negligence [67-68]. Applying these principles, the
police may be under a duty of care to protect an individual from danger of
injury which they have themselves created [70].
• The present case concerned a positive act, not an

omission. The reasonably foreseeable risk of injury to the
Appellant when the arrest was attempted was enough to
impose a duty of care on the officers [74].
250
Tort Law
• The judge was entitled to find negligence where Willan accepted
that he was aware of the risk that Williams would attempt to
escape and of the risk to members of the public in that event,
that he would not have attempted the arrest at a time when he
was aware that someone was in harm’s way, and that he had
failed to notice the Appellant [75-78].
The Appellant’s injuries were caused by the

officers’ breach of their duty of care; she was
injured as a result of being exposed to the danger
from which they had a duty of care to protect her
[79-80]. 251
Tort Law
• It was not possible to state absolutely that policy
considerations may not shape police liability where the
conduct of the police may be analysed as positive, rather
than simply as involving some form of omission [85-
94].
However, he concluded that we should now recognise the
direct physical interface between the police and the public,
in the course of an arrest placing an innocent passer-by
at risk, as falling within a now established area of
general police liability for positive negligent conduct which
foreseeably and directly inflicts physical injury [97]. 252
Tort Law
THE OTHER TORTS
PRIVATE NUISANCE :
It is a tort to unreasonably interfere with people's

enjoyment of their land. Smoke, noise, vibrations,
any facts relating to nuisance (even perambulating
(déambuler) prostitutes). But only a person with an
interest in the land may bring the action.
253
Tort Law
TRESPASS:
❖ Trespass is applied to land or to people. This is a

direct unlawful and intentional interference with
someone’s property or person. Trespass to land is
the most common form of this.
But the tort extends to

▪ touching people without their consent (which is
battery) ;
▪ or threatening immediate battery (which is assault).
254
Tort Law
▪ Which may also be, preventing people from

exercising their freedom of movement (false
imprisonment) ; and generally interfering with
their belongings.
Unlike negligence, trespass is actionable without

proof of any consequent injury - i.e., actionable
per se.
255
Tort Law
DEFAMATION :
This tort involves the publication of an untrue
statement which lowers (atteint, rabaisse) the victim's
reputation in the estimation of right-thinking members of
society.
Shout it in the street and it becomes slander ;
write it on the wall and it is libel.
256
Tort Law
RYLANDS v. FLETCHER :
- What is it exactly? A strange tort.

This is akin to private nuisance.
- It involves bringing something onto your land which

is not naturally there and which may cause injury to
your neighbour if it escapes. It has been originally
applied to a leaking reservoir, it has been known to
cover fumes, electricity and even chairs !!!
257
Tort Law
OCCUPIERS' LIABILITY :
Occupiers of premises owe a special duty in addition to

normal 'negligence' to consider the safety of those who
enter those premises. Originally entirely a common law
matter, predating even the modern tort of negligence.
Occupiers' Liability is now governed by two statutes called :
- the Occupiers' Liability Act 1957 and the Occupiers

Liability Act 1984.
258
Tort Law
Liability of an employer to his employee may be divided
into two sides.
- Employers’ liability may arise,
(a) when their employees suffered a harm caused by them
(b), where employees have committed wrongs to the
detriment of a third party in the course of their employment.
This latter situation is called vicarious liability.
- Employers’ liability only means that employers are

responsible for any harm their employees suffered in the
course of their employment.
- Make it clear than in a relationship between the employer
and the employee, there is a fault to prove.
259
Tort Law
VICARIOUS LIABILITY:
• This is a liability imposed on an employer to a third party
for the tort that his employee committed to the detriment
of that third party, in the course of the employment.
• So, prior to the relationship between the employer and the

third party contracting with him, a specific relationship
must exist between the employer and his employee. The
employer who is normally not at fault will be made
responsible for the employee's failure or default.
• Vicarious liability tries to reach the person who is

better able to pay the cost of the injury. 260
Tort Law
- Economic and moral considerations lead to such a
result.
See Lord Philip's opinion who identified five "policy reasons”
to impose vicarious liability:
i) The employer is more likely to have the means to

compensate the victim than the employee and can be
expected to have insured against that liability;
ii) The tort will have been committed as a result of activity

being taken by the employee on behalf of the employer;
iii) The employee's activity is likely to be part of the

business activity of the employer; 261
Tort Law
iv) The employer, by employing the employee to carry on the activity
will have created the risk of the tort committed by the employee;
v) The employee will, to a greater or lesser degree, have been under

the control of the employer." Lord Philipps in Christian
Brothers Case [2012] UKSC 56 at paragraph 35, and by Lord Reed
in Cox v. Ministry of Justice [2016] UKSC 10 paragraphs 20-23.
But keep in mind that it is different with independent contractor!

see UKSC the “employer” of an independent contractor is not liable for
the negligence or other torts committed by the contractor in the course
of the execution of the work, as this contractor remains
independent:Barclays Bank v. Various Claimants [2020] UKSC 13
262
Vocabulary
actionable per se: without having to prove further or additional elements
• Foreseeable: prévisible
• Foreseeability of damage: prévisibilité du dommage
• Harm: préjudice
• Lower: atteint rabaisse
• Occupiers: habitants, personnes qui occupent un lieu
• Premises: locaux
• The Clapham Omnibus: This is the Man in the bus, the reasonable
man. By this concept English Courts attempt to give an objective
view with reasonableness. C'est "l'homme du bus", l'homme moyen.
C'est-à-dire, l'homme de la rue. On calque le comportement de
l'auteur du dommage sur celui, standard de l'homme de la rue, Monsieur Lambda,
• Vindicates his rights: faire valoir ses droits
• Vicarious liability: indirect liability, responsabilité des commettants
envers leurs préposés
263
Vocabulary
Assault : aggression
An Award / to award damages : octroi, attribution / octroyer des dommages et intérêts
Battery : voies de fait, coups et blessures
Chattel : biens meubles, possessions
To collide : entrer en collision avec
Compensation : dédommagement, compensation financière
Compensatory : compensatoire
Conversion : rétention du bien d’autrui
Corporation : personne morale, entité dotée de la personnalité morale.
Damage : prejudice
Damages : dommages et intérêts
Unliquidated damages : dommages non liquidés, dont le montant est fixé par le jury/tribunal
Defamation : diffamation
Defence : défense, justification
To deny ( the facts): nier ( les faits)
Duty: devoir , obligation
duty of care: obligation de soin , prendre soin de ..
legal duty : obligation légale
At the expense of : au détriment de
Fair : objectif ,impartial, juste
Foreseeable / unforeseeable: prévisible / imprévisible
264
Vocabulary
Goods : biens meubles, marchandises, produits
Harm : mal, tort, dégât
Injured person : victim
Injurious : nuisible, dommageable, préjudiciable
Injury : blessures, préjudice corporel
Intentional : intentionnel, délibéré
Interference : ingérence
wrongful interference : ingérence illégale/abusive
Land : terre, biens immeubles
Liability : responsabilité civile
to escape liability: être dégagé de toute responsabilité
Liable :civilement responsable, passible de poursuites civiles
To hold liable: tenir pour responsable
Libel /slander : diffamation écrite / diffamation orale, calomnie
Loss : perte, préjudice
Recovery : recouvrement, restitution, compensation financière
Statement : declaration : declaration
To suffer ( damage) : subir un préjudice
Tort : délit civil, responsabilité extracontractuelle
Tortfeasor : auteur du délit civil
Tortious : délictueux
Trespass: atteinte à la propriété privée 265
Criminal
Law
CRIMINAL LAW
• The function of the criminal law is, in general, to ‘protect’
the public from:
• i) Physical harm
• ii) Financial harm
• iii) Moral harm
❖ Criminal law is not concerned with redress the civil harm

or wrong suffered by the victim and his relatives.
267
CRIMINAL LAW
Criminal law: is concerned with criminal activities that harm the safety
of the community as a whole. These activities are considered as being
criminal wrongs which largely means offences. Criminal law defines
Offences which are a set of criminal rules defining crimes committed
against any individual, goods, or the state itself.
- It establishes punishments imposed to those who breach these rules.
- Besides the offender and the victim, criminal law involves three sorts
of authorities:
➢ The Police
➢ The CPS (Crown Prosecution Service),
➢ The Judge (Magistrates’ Courts as well as crown court and the other
appeal and final appeal Courts)
268
CRIMINAL LAW
• AN ADVERSARIAL SYSTEM
• Definition: The adversarial system is based on this

principle by which the prosecution and the defendant are
each represented by independent lawyers, who present
their cases to an independent and impartial judge.
• The accused is not required to give evidence, though they

may be cross-examined on it if they do so.
269
CRIMINAL LAW
• The inquisitorial system used in Civil Law
system differs, where the defendants can be
compelled to give evidence on questioning by the
judge, but this is not subject to cross-examination.
270
CRIMINAL LAW
Criminal law also concerns the rules of criminal
procedure which means how, by whom and through what
specific procedures offenders or perpetrators are subject to
investigations, prosecution and judgment and then,
punishment.
1) The police:
• is in charge of detecting behaviours of individuals
violating criminal law and then, investigates through the
advices of the CPS and to collect all the evidence of
offences.
271
CRIMINAL LAW
2) The Crown Prosecution Service (CPS):
is in charge of prosecuting criminal cases that have been
investigated by the police. It appeared in its modern form in
1962. Before that there was no prosecution service as a strict
sense. Police used to do both: investigate and prosecute.
The CPS must

o Advise the police during the early stages of investigations;
o Decide which cases should be prosecuted
O then charges the offenders.
o prepare cases and bring them at court;
o Provide information and assistance to victims.
272
CRIMINAL LAW
CPS prosecutes under the CCP (code for Crown
Prosecutors).
The evidential stage:
- In order to charge and then later prosecute, CPS must get
enough evidence to provide what is called a: "realistic
prospect of conviction" for each charge the defendant face
up to.
- The evidential stage is based on an objective test by which it

is verified whether the evidence can be used and if a Court
would have convicted or not the defendant.
- Evidential stage is a barrier which may refrain the CPS

to go further sometimes. 273
CRIMINAL LAW
- If the evidential stage is satisfied, the CPS can decide
whether a prosecution is necessary or not by putting in
balance what is for or against such a prosecution.
3) The Courts
In English criminal law, only specific Courts specialised
in criminal matters have jurisdiction to hear criminal cases.
o The Magistrates’ Courts,

o The Crown Court
O sometimes a Judge of the High Court of Justice for very
serious criminal offences like murder or rape.
o the Court of Appeal and the UK Supreme Court
274
CRIMINAL LAW
• British criminal courts are specialised depending on the
nature of the offence.
• But 95% of criminal cases are heard by the Magistrates’

Courts. Most of the time, Magistrates’ Courts hear first, the
evidence and, make a decision on guilt or innocence where
they used to sit as a panel.
• More serious offences are heard in the Crown Court by a

Circuit Judge or a District Judge hearing the evidence and
then will send the case to a Jury Trial.
275
CRIMINAL LAW
• Magistrates and judges may decide with an enlarged variety
of punishment in their hands. They may
o imprisons persons convicted of a crime,

o Give a restrictive order by which freedom of movement
of
people convicted is restrained
o Or order a “community punishment” (travail d’intérêt
général)
o before hearing the case at trial the Judge will review all the
relevant documents: indictment which setting out the
charges against the defendant, witness statements,
applications of any party, etc. 276
CRIMINAL LAW
• If the case is serious enough, and goes to jury trial,
the Judge must control its selection.
• During the hearings the Judge must pay attention to

the evidence and approves and rejects those which
are not admissible. He then controls the way the case
is conducted.
• Where there is a jury, who then finds the defendant

guilty, the Judge will decide the most appropriate
sentence.
277
CRIMINAL LAW
THE PRESUMPTION OF INNOCENCE
• The prosecution must discharge the legal burden of proof

‘beyond all reasonable doubt’.
• The defence bears an evidential burden in relation

to common law defences except for two:
- Diminished Responsibility
and
- Insanity where the burden is for them to discharge on a
balance of probabilities.
278
CRIMINAL LAW
THE PRESUMPTION OF INNOCENCE
Woolmington v. DPP [1935]

it is the duty of the prosecution to prove the
prisoner’s guilt subject to what I have already said as to
the defence of insanity which has to be proven by
the defendant on a balance of probabilities] and
also subject to any statutory exception.
279
CRIMINAL LAW
4) Elements of a crime:
- A crime is composed of three elements:

• « Actus reus »: refers to the guilty which must be
established in criminal offences. It outlines the intention of
the offender.
• « Mens rea »: which is based on the guilty mind or ill

intended which means an intention based on hostility. Mens
rea requires that the defendant’s motive was to intend to act
intentionally with hostility.
• The absence of a valid defence

280
CRIMINAL LAW
• To the contrary, carelessness conduct or negligence conduct
means that the person found guilty did not intent the result of
his action.
• « Actus reus » : means a guilty act is the material or physical

action which led to the crime. Something of material. It
requires
- A voluntary act, a causation and a social harm suffered

by the community. It need not be physical sometimes.
Causation refers to whom the act is attributed the chain of
causation may be set aside by acts of third party or the victim
or natural event ( “act of God »: cas de force majeure)
281
CRIMINAL LAW
- Strict liability:
• Sometimes, criminal laws don’t require any intent or « Mens
rea » and the offender are subject to strict liability. The
intention of the offender is set aside because of the nature of
the act or the nature of the victim (acts against minors for
instance).
• Crimes usually divide into two parts:
- « Mala in se »: where crimes are naturally wrong by

themselves
- « Mala prohibita » : which are crimes that are only morally

wrong but don’t affect the basis of the society. 282
CRIMINAL LAW
• List of offences:
• Homicide: is where someone is killed by somebody else

which might be without any intent.
• Murder is a criminal act: it requires « Mala in se » if it is done

with malice (which means premeditated)
• Manslaughter: is killing a human being but unintentionally
• Assault and battery are unlawful touching physical integrity.
• Rape is a criminal offence.
283
CRIMINAL LAW
Offences against Property
• Theft: where somebody dishonestly
appropriates something which belongs to
somebody else.
• Larceny is where somebody takes unlawfully

something which belongs to somebody else.
(Larceny is a category of theft.)
2 types : petty larceny and grand larceny
• Robbery is a theft committed with violence.

284
CRIMINAL LAW
DOUBLE JEOPARDY
Since Norman times (11th century, there has been a rule in
England that you cannot be tried twice for the same
offence, with three exceptions:
• The prosecution has a right of appeal against acquittal in

summary cases if the decision appears to be wrong in law
or in excess of jurisdiction.
• A retrial is permissible if the interests of justice so
require, following appeal against conviction by a defendant.
• A "tainted acquittal," where there has been an offence
of interference with, or intimidation of, a juror or witness,
can be challenged in the High Court.
285
CRIMINAL LAW
• In 1993, Stephen Lawrence, a 19-year-old

black man, was murdered in a racist attack in
London.
Due to the negligence of the police, his

attackers were tried on inadequate evidence
and acquitted, even though it seemed highly
likely they were guilty.
286
CRIMINAL LAW
• A public inquiry into the case was held in 1998, headed
by Sir William Macpherson, a retired High Court judge.
• The inquiry found that the police were institutionally

racist, and also recommended that the double jeopardy rule
be abrogated so that people like Stephen’s murderers could
be retried.
• The law was changed by the Criminal Justice Act 2003.

Retrials are now allowed if there is new and compelling
evidence for certain serious crimes, such as murder, rape
and armed robbery. All such retrials must be approved by
the Director of Public Prosecutions,
287
CRIMINAL LAW
Many criminal offences also give rise to civil actions –
usually ‘torts.’
• These offences may be subject to civil actions:
• Crime of theft = tort of ‘conversion’ or ‘interference

with goods’
• Crime of threatening behaviour = tort of assault
• Crime of battery = tort of battery
• Crime of assault = tort of battery 288

CRIMINAL LAW
Crimes leading to tort at civil law:
• Crime of manslaughter = tort of negligence

• Crime of kidnapping = tort of false imprisonment
• Crime of fraud = tort of deceit
• That is the same thing for instance to trespass to land, where

trespassers may be subject to prosecutions if causing damages
to goods or land but if not, they may be sued at civil Law
but not prosecuted.
289
CRIMINAL LAW
• Criminal consequences may arise as follows:
Trespassers may though subject to Criminal Justice and

Public Order Act 1994 –
section 68 - Offence of aggravated trespass
• (1) A person commits the offence of aggravated trespass if
he trespasses on land and, in relation to any lawful activity
which persons are engaging in or are about to engage in on
that or adjoining land, does there anything which is intended
by him to have the effect :
• (a) of intimidating those persons or any of them so as to
deter them or any of them from engaging in that activity,
• (b) of obstructing that activity,
or (c) of disrupting that activity
290
CRIMINAL LAW
Legal Aid, Sentencing and Punishment of Offenders Act
2012
• —Offence of squatting in a residential building
section 144 : (1) A person commits an offence if:
• (a) the person is in a residential building as a trespasser having
entered it as a trespasser,
• (b) the person knows or ought to know that he or she is a
trespasser, and
(c) the person is living in the building or intends to live there
for any period...
A person convicted of an offence under this section is liable
on summary conviction to imprisonment for a term not
exceeding 51 weeks or a fine not exceeding level 5 (£5,000) on
the standard scale (or both). 291
CRIMINAL LAW
• A person may be prosecuted for crimes or

offences but and later be sued for civil damages
before civil courts
• See O.J. Simpson’s case in 1997
292
CRIMINAL LAW
There are three categories of crime depending on how
serious the offence is
• “Summary Offences” : Only triable by
MAGISTRATES
• “Either Way/Hybrid Offences” : Triable by

MAGISTRATES or the CROWN COURT
• “Indictable Offences” : Only triable by the CROWN

COURT
293
CRIMINAL LAW
• Financial Offences and the UK Bribery Act
2010
See the Madoff Fraud or Nick Leeson, a famous
Barings’ trader for instance
• Fraud
• Tax evasion
• False Expenses Claims
• Money laundering
• Acts of Corruption
• Bribery
294
CRIMINAL LAW
• The UK Parliament’s False Expenses Scandal
• In 2009, it was discovered that many Members of

Parliament had for years been unlawfully claiming
hundreds of thousands of pounds in fraudulent
expenses claims.
• The worst claimed for the massive expenses of

having to buy two houses :
– one in London and one in their constituency
– but other claims for ‘necessary work-related
expenses.’ 295
CRIMINAL LAW
• Ex-Labour M.P. David Chaytor was sentenced to

18 months jails for fraudulent conduct claiming
more than £20,000 in parliamentary expenses.
296
CRIMINAL LAW
‘Modern’ or new offences include, for instance
• Phone Hacking
• Jury “internetting”
June 2011, Joanne Fraill’s case:
She was sentenced to 8 months imprisonment
for contempt of court.
She discussed a case on her Facebook page with
one of the defendants.
297
CRIMINAL LAW
• Dallas case:
• In 2012 Theodora Dallas, who was serving
on a jury, found out about the defendant,
Barry Medlock, on the internet and told jurors
that he was once acquitted of rape.
• She was sentenced to six months in prison

for contempt of court.
298
Vocabulary
Crime Le crime Offence L’infraction
Offence, crime Le délit Fine, parking ticket La contravention
Hardened criminel le criminel endurci Attack, assault, mugging L’agression
Assailant Un agresseur To mug Agresser.
To stab Poignarder Manslaughter L’homicide involontaire
Murder Le meurtre Murderer le meurtrier
Rape Le viol Rapist Le violeur
To abduct Enlever Abduction Le rapt
Kidnapping L’enlèvement Kidnapper Le kidnappeur
Kidnapper Le ravisseur Hostage L’otage
Ransom La rançon Burglary Le cambriolage
Burglar Le cambrioleur Robbery Le vol avec violences
To loot Piller / mettre à sac Hold up Le hold-up
Bribery La corruption Open to bribery Corruptible
Bribe Le pot-de-vin Extortion L’extorsion
A Blackmail , To blackmail le chantage, faire chanter / soudoyer
Drug pusher Le revendeur de drogues Drug trafficking Le trafic de drogues

Police station Le poste de police Emergency services La police secours
Traffic police Les agents de circulation Plain-clothes policeman Le policer en
civil 299
Vocabulary
Police dog Le chien policier Inquiry, investigation L’enquête / les recherches

Interrogation L’interrogatoire Private detective Le détective privé
Identification La pièce d’identité Lost property office Le bureau des objets trouvés
Indictment L’inculpation Defendant L’accusé(e)
Proof La preuve Evidence Les preuves
Plaintiff Le/la poursuivante Witness Le témoin
To plead guilty Plaider coupable To plead not guilty Plaider non coupable
To make a statement Faire une déclaration To make a testimony Faire une déposition
Statement Le constat Confession L’aveu
To charge Inculper. To appeal interjeter l'appel
Court of Appeal La cour d’appel Bail la caution
Acquittal L’acquittement To acquit Acquitter
To discharge Relaxer. To be found guilty Être reconnu coupable
Detention La détention Pardon La grâce (to grant pardon :accorder une
grace)
imprisonment L’incarcération
300
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English Legal System Pre Barreau 2022

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ENGLISH LEGAL SYSTEM

PRE BARREAU 2022 1

• Claims launched against Brexit before the High Court on

• These arms are used by the Monarch in her/his

• You may notice the motto : "Dieu et mon droit"

Also notice the lion (symbol of England) + the

• In Europe, one may distinguish between two

• 2) The Continental Law system: also referred to

• - Judges travelling to different parts of the

THE • 2) Common law also means:

COMMON • « judge -made -law » that is to say Case Law.

LAW Where facts of the cases are similar to another part

COMMON • 3) The Common Law is also:

COMMON• Precedent is also closely connected to Stare decisis:

LAW normally allowance to widow without more

• Held: that statute will not apply against the

• Common law as explained by Judges:

• « I have come (…), to speak, as it were, to the common people

• (Lord Alfred Denning ; Freedom under the law

• Common law as explained by Judges:

• « We tend to avoid large, abstract, generalisations,

COMMON French law is preliminary based on statutes law

English law tends to concrete legal

As mentioned above, before the Judicature Act

•They are the highest level in

• Statutes law is divided into two

• « Public General Acts »

Devolved administrations are dedicated to

This uncodified constitution has largely developed out

The spirit of this document has guided the evolution of

Magna Carta is significant because it is a statement of law that

Habeas Corpus (1679) , defined and strengthened the

In a nutshell : No one can be detained without the order

It is commonly shared that the UK has no Constitution.

Unlike most continental countries, UK Constitution does

Why one single text does not prevail above others?

“Constitutional conventions” means: Political practices,

• A few texts or principles prevail above others

The issue is quite clear now: With the Prorogation

• Act of Union (1707) uniting the English and Scottish

- The Parliament Act 1911 asserted the supremacy of the House

- The Parliament Act 1949 further limited the power of the

- It first started with consultative referendums held in

- Each of these regions has a Parliament or Assembly

It abolished the Appeal Committee of the House of Lords

Before 2005, the House of Lords, one of the two Houses of

The Constitutional Reform Act 2005: has established

o UK Courts directly apply the Human right Act

Many acts, no matter their forms are (Acts of Parliament, Case

No specific constitutional process exists nor any Act of

The form of the UK Constitution may vary depending on

Dicey: « A government of law not of men .»

Lord Bingham gave a clear definition:

The rule of law:

Who are the scholars that I just quoted,

• Albert Venn Dicey was a British jurist and law

• For this treatise, which is noted for its application of

• Lord Thomas Henry Bingham was an

• He wrote a famous book : The Rule of Law, known as

• The Withdrawal Agreement between the UK and the EU

• The Withdrawal Agreement makes provision for a transition or

• The implementation period is from exit day until 11.00 p.m. on 31