English and European Legal Systems

However the position of a court in the hierarchy, is important in deciding, whether a particular precedent is binding, and whether that court could rule previous decisions. Therefore we will look at the hierarchy of the courts in the English legal system. The House of Lords is the most superior court of appeal, in the land. It binds all inferior courts, but is not bound by its own decisions.

Although the practice statement did not change the attitude of the House of Lords to precedent, however it has made them a bit flexible, but it is used very sparingly, as The House will not go away from a decision just on the basis that it is incorrect, for example Jones v Secretary of state [1972]2 WLR 2106 and Re Dowling [1967] AC 7257. Due to the criminal Appeal Act 1966 there are two divisions of the court of appeal. Which are the civil and criminal divisions. Both divisions of the Court of Appeal are bound by the House of Lords and their own decisions, but there are some exceptions.

In the civil divisions if there are conflicting Court of Appeal decisions, then they can chose which to follow. Moreover if a Court of Appeal decision conflicts with that of the House of Lords decision, then it has to go with the House of Lords decision. Also it does not bind itself if a previous decision was made per incuriam. The criminal division, binds all inferior courts, and is bound by the civil division. Unlike the civil division, it does not bind itself strictly as it feels that a persons liberty maybe affected by incorrect decisions. 

The High Court of Justice, consists of divisions which deal with different types of work. These are, the Queens Bench, Chancery and the Family division. They are bound by decisions of the courts who are superior to them , but are not bound by their own decisions. The crown Court does not bind itself, as one judge may disregard the judgement of another Crown Court judge, but those higher in the hierarchy bind the Crown Court. Having looked at the ways in which judges in the English legal system are guided in making their decisions, we will now move on to the mechanisms that are available for them to correct disputed decisions.

These are conducted by appeal, tribunals and enquiries, through judicial review and arbitration. With regards to a civil matter, an appeal from the Magistrates court lies to the Crown court, if it is a licensing matter. In domestic appeals it goes to the Family Division of the high court. Although permission is needed from the County court to the civil division. , there are some cases where appeal is of right. Furthermore if a trial judge grants a certificate of satisfaction, then the parties are permitted to bypass the Court of Appeal and go straight to the House of Lords.

This is the highest court in the land, so further appeal is not possible in this land. Moving on we also have available tribunals and enquiries. These are held to resolve disputes between people in an area where their conduct has been legislated by the government. In cases such as social security appeals. The applicant is often appealing against the decision by an employee of the Department of the social security. The tribunal is conducted by a panel of three, of whom the chairman, has a five-year general qualification within s71 of the courts and Legal Services.

These tribunals are usually governed by the Tribunals and Inquiries Act 1992. It has seen to be characteristically fair and impartial. These tribunals are seen to be successful and also they have aided in reducing the workload on the courts. They can be supervised by the High court, through prerogative powers. Another mechanism for correcting disputed decisions is by judicial review. This is neither a retrial or a rehearing, but it is a review of the way in which the decision was taken.

In order to do this an application by the Divisional court of the Queen's Bench, this can only be achieved only if the High court or the Court of Appeal grant permission to move for judicial review. Whatever the outcome of the review, the courts will not substitute this for the original decision. Finally, another mechanism that is used for disputed decisions, is Arbitration. Although the jurisdiction of arbitrators comes from contract, however there are some statutes that produce disputes which can be referred to arbitration.

This is commonly used in shipping, commerce and engineering professions. In such cases if only one party begins proceedings without arbitration, then the other party can hold up proceedings until arbitration. However the proceedings may be exercised by the High Court if both parties agree. Here the governing statute is used, according to the ordinary rules of the English law. If the parties fail to agree on an arbitrator then a third party would be appointed as an arbitrator. Furthermore there is a right to appeal on a point of law to the high court under s69 Arbitration act 1996.

This mechanism has the advantages of being, cost effective, the arrangement for the hearing can be set to the convenience of both parties. This is a private form of dispute settlement. In conclusion, as stated before precedents, statutes and statutory instruments, are parts of the English legal system that combine to guide judges in deciding cases. However this may not always be the case, as the case in question may be treated differently by judges. Moreover the decisions of the judges are also influenced by the courts they are in, the higher courts like the House of Lords will bind the decision on lower courts.

The mechanisms that are mentioned above, appeal, tribunals and enquiries, judicial, review and arbitration, are very different to each other in many ways. The main one being that that a successful appeal can overrule the previous decision, but in contrast, this does not happen with tribunals and enquiries, judicial review or arbitration.

Nazim Ali Student No:0079480 1 Charles P Reed, English and European Legal Systems. pp. 26 2 Charles P Reed, English and European Legal Systems, pp. 28 3 Charles P Reed. English and European Legal Systems, pp. 29