Electrospray ionization: How it works

There are many individuals within the construction industry who will, at some time in their careers, become professionally involved in either litigation or arbitration or

adjudication. The laws which are applied in the construction industry are both of a general and a specialist nature. They are general in the sense that they embrace the tenets of law appropriate to all legal decisions and are special since the interpretation of construction contracts and documents requires a particular knowledge and understanding of the construction industry. Note, however, that the interpretation and application of law will not be contrary to or in opposition to the established legal principles and precedents found elsewhere. It is appropriate at this stage to consider briefly the framework of the English legal system.

The legal system of England and Wales is separate to those of Scotland and Northern Ireland. It differs from them in law, judicial procedure and court structure. However, there is a common distinction between civil law (disputes between individuals) and criminal law (acts harmful to the community). The supreme judicial authority for England and Wales is the House of Lords (see page 10). This is the ultimate court of appeal from all courts in Great Britain and Northern Ireland (except for criminal courts in Scotland) for all cases except those concerning the interpretation and application of European Community law.

THE NATURE OF LAW

Law, in its legal sense, may be distinguished from scientific law or the law of nature and from the rules of morality. In the first case, scientific laws are not man-made and are not therefore subject to change. In the case of morality it is less easy to draw a distinction between legal rules and moral precepts. It may be argued, for example, that the legal rules follow naturally from a correct moral concept. The difference between the two is, perhaps, that obedience to law is enforced by the state whereas morals are largely a matter of conscience and conduct. The laws of a country are, however, to some extent an expression of its current morality, since laws can generally only be enforced by a common consensus.

Law, therefore, may be appropriately defined as a body of rules for the guidance of human conduct but which may be enforced by the authorities concerned.

3

4 The English Legal System CLASSIFICATION OF LAW

Law is an enormous subject and some specialisation is therefore essential. A complete classification system would require a very detailed chart. Essentially the basic division in the English legal system is the distinction between criminal and civil law. Usually, the distinction will be obvious. It is the difference between being prosecuted for a criminal offence and being sued for a civil wrong. If the aim of the person bringing the case is to punish the defendant then it will probably be a criminal case. However, if the aim is to obtain some form of compensation or other benefit then it will generally be a civil case.

Alternative methods of classification are to subdivide the offences that are committed against persons, property or the state under these headings. Laws may also be classified as either public or private. Public law is primarily concerned with the state itself. Private law is that part of the English legal system which is concerned with the rights and obligations of the individuals.

SOURCES OF ENGLISH LAW

Every legal system has its roots, the original sources from which authority is drawn.

The sources of English law can be categorized in the following ways.

Custom

In the development of the English legal system, the common law was derived from the different laws associated with the different parts of the country. These were adapted to form a national law common to the whole country. Since the difference between the regions stemmed from their different customary laws, it is no exaggeration to say that custom was the principal original source of the common law. The term ‘custom’ has three generally accepted meanings:

■ General custom: accepted by the country at large

■ Mercantile custom: principles established on an international basis

■ Local custom: applicable only to certain areas within a country

The following conditions must be complied with before a local custom will be recognised as law:

■ The custom must have existed from ‘time immemorial’. The date for this has been fixed as 1189.

■ The custom must be limited to a particular locality.

■ The custom must have existed continuously.

■ The custom must be a reasonable condition in the eyes of the law.

■ The custom must have been exercised openly.

■ The custom must be consistent with, and not in conflict with, existing laws.

In some countries the writings of legal authors can form an important source of law. In England, however, because of tradition, such writings have in the past been treated with comparatively little respect. They are therefore rarely cited in the courts. This general rule has always been subject to certain exceptions and there are ‘books of authority’ which are

Sources of English Law 5 almost treated as equal to precedents. Many of these books are very old, and in some cases date back to the twelfth century.

Legislation

The majority of new laws are made in a documentary form by way of an Act of

Parliament. Statute has always been a source of English law and by the nineteenth century it rivalled decided cases as a source. If statute and common law clash, then the former will always prevail, since the courts cannot question the validity of any Act. The acceptance by the courts of Parliament’s supremacy is entirely a matter for history. Today it is the most important new source of law because:

■ The complex nature of commercial and industrial life has necessitated legislation to create the appropriate organisations and legal framework.

■ Modern developments such as drugs and the motor car have necessitated legislation to prevent their abuse.

■ There are frequent changes in the attitudes of modern society, such as that relating to females, and the law must thus keep in step with society.

Before a legislative measure can become law, it must undergo an extensive process:

■ The measure is first drafted by civil servants who present it to the House of Commons or the House of Lords as a bill.

■ The various clauses of the bill will already have been accepted and agreed by the appropriate government department prior to its presentation.

Before the bill can become an Act of Parliament, it must undergo five stages in each house:

■ First reading: the bill is introduced to the House.

■ Second reading: a general debate takes place upon the general principles of the measure.

■ Committee stage: each clause of the bill is examined in detail.

■ Report stage: the House is brought up to date with the changes that have been made.

■ Third reading: only matters of detail are allowed to be altered at this stage.

The length of time which is necessary for the bill to pass through these various stages depends upon the nature and length of the bill and how politically controversial it is. Once the bill has been approved and accepted by each House, it then needs the royal assent for it to become law.

A public bill is legislation which affects the public at large and applies throughout England and Wales. Scottish law is similar to English law but it is not exactly the same. A private bill is legislation affecting only a limited section of the population, for example, in a particular locality. A private member’s bill is a public bill introduced by a back-bench Member of Parliament as distinct from a public bill, which is introduced by the government in power.

Delegated legislation arises when a subordinate body makes laws under specific powers from Parliament. These can take the form of:

■ Orders in council

■ Statutory instruments

■ By-laws

6 The English Legal System

Whilst these are essential to the smooth running of the nation, the growth of delegated legislation can be criticised, because law-making is transferred from the elected representatives to the minister, effectively the civil servants. The validity of delegated legislation can be challenged in the courts as being ultra vires, i.e. beyond the powers of the party making it, and thus making it void. The judicial safeguard depends on the parent legislation, i.e. the Act giving the powers. Often this is extremely wide and such a restraint may therefore be almost ineffectual.

All legislation requires interpreting. The object of interpretation is to ascertain

Parliament’s will as expressed in the Act. The courts are thus at least in theory concerned with what is stated and not with what it believes Parliament intended. A large proportion of cases reported to the House of Lords and the High Court involve questions of statutory interpretation and in many of these the legislature’s intention is impossible to ascertain because it never considered the question before the court. The judge must then do what he or she thinks Parliament would have done had they considered the question.

Since Britain’s entry into the European Community on 1 January 1973 it has been bound by Community law. All existing and future Community law which is self-executing is immediately incorporated into English law. A self-executing law therefore takes

immediate effect and does not require action by the UK legislature.

Case law

Case law is often referred to as judicial precedent. It is the result of the decisions made by judges who have laid down legal principles derived from circumstances of the particular disputes coming before them. Importance is attached to this form of law in order that some form of consistency in application in practice can be achieved. The doctrine of judicial precedent is known as stare decisis, which literally means ‘to stand upon decisions’.

In practice, therefore, a judge trying a case must always look back to see how previous judges dealt with similar cases. In looking back, the judge will expect to discover those principles of law which are relevant to the case now being decided. The decision made will therefore seek to be in accordance with the already established principles of law and may in turn develop those principles further. Note that the importance of case law is governed by the status of the court which decided the case. The cases decided in a higher court will take precedence over the judgments in a lower court.

Here are the main advantages claimed for judicial precedent:

■ Certainty: because judges must follow previous decisions, a barrister can usually advise a client on the outcome of a case.

■ Flexibility: it is claimed that case law can be extended to meet new situations thereby allowing the law to adjust to new social conditions.

A direct result of the application of case law is that these matters must be properly reported and published and should be readily available for all future users. Consequently, there is now available within the English legal system an enormous collection of law reports stretching back over many centuries. Within the construction professions a number of different firms and organisations now collate and publish law reports which are relevant

Sources of English Law 7 to this industry. Computerized systems are also available to allow for rapid access and retrieval from such reports.

It is not the entire decision of a judge that creates a binding precedent. When a judgment is delivered, the judge will give the reason for the decision. This is known as ratio decidendi, and is a vital part of case law. It is the principle which is binding on subsequent cases that have similar facts in the same branch of law. The second aspect of judgments, obiter dicta, are things said ‘by the way’, and these do not have to be followed. Although the facts of a case appear similar to a binding precedent, a judge may consider that there is some aspect or fact which is not covered by the ratio decidendi of the earlier case. The judge will therefore

‘distinguish’ the present case from the earlier one which created the precedent.

A higher court may also consider that the ratio decidendi set in a lower court is not the correct law which should be followed. When another case is argued on similar facts, the higher court will overrule the previous precedent and set a new precedent to be followed in future cases. Such a decision does not affect the parties in the earlier case, unlike a decision that is reversed on appeal.

Finally a superior court may consider that there is some doubt as to the standing of a previous principle, and it may disapprove but not expressly overrule the earlier precedent.

Examples

Here are some examples of how sources of English law are appropriate to the construction industry:

■ Custom

– Right to light – Right of way

■ Legislation

– Highways Act 1980

– Town and Country Planning Act 1990 – Local Government Act 1988

– Control of Pollution Act 1974

■ Cases

– Hadley v. Baxendale 1854

– Sutcliffe v. Thackrah and Others 1974

– Dawber Williamson Roofing v. Humberside County Council 1979 EU law

A completely new source of English law was created when Parliament passed the European Communities Act 1972. Section 2(1) of the Act provides that:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be inforced, allowed and followed accordingly.

8 The English Legal System

European Court of Justice

House of Lords

Court of Appeal

Criminal Division Civil Division

Crown Court High Court

Magistrate’s Court County Court Fig. 1.1 The court system

The effect of this section is that all UK courts have to recognise European Union (EU) law, whether it comes directly from treaties or other Community legislation. As soon as the 1972 Act became law, some aspects of English law were changed to bring them into line with European Union law.

There are several institutions to implement the work of the European Union. These include the European Parliament, the Council of Ministers, the European Commission and the European Court of Justice.

THE COURTS

The structure of the courts in all three jurisdictions in the UK tends to be arranged with regards to the subject matter of cases brought before the courts. The following particularly appertain to England and Wales. The legal system differentiates between civil and criminal actions. The court system is illustrated in Figure 1.1, which identifies the different courts for different purposes. Contractual procedures is largely concerned with civil actions which are first brought by the plaintiff, private person, company or civil authority against the defendant. The plaintiff must try to prove the case on the balance of probabilities. The sorts of cases resulting in civil actions are typically about contracts and torts. The choice of court often depends on the amount of the claim that is being pursued. The more substantial claims, in excess of about £30,000, are tried in the High Court and other claims in the County Court. Relatively small claims can be handled by a small claims procedure.

This involves a quick hearing without lawyers and before a district judge.

Cases may be moved up to the higher courts such as the Court of Appeal. Where the matter is still unresolved then it can be brought to the House of Lords. In the event that justice is still felt not to have taken place then further action can be instigated before the European Court of Justice.

Alternatively the parties involved in a dispute can choose arbitration or one of the forms of alternative dispute resolution (see Chapter 5).

The Courts 9 County Court

There are 250 County Courts around the country which deal with civil matters. The main advantages claimed for County Courts are their lower costs and shorter delays before coming to trial. These are also the reasons given for using arbitration or alternative dispute resolution. Cases that cannot be resolved in the County Court, or which are appealed, will usually be held in the High Court. The cases are dealt with by a District Judge or Circuit Judge. The District Judge deals with a great majority of matters of procedure and

directions. They are usually solicitors. Deputy District Judges sit part-time and continue to practice. The Circuit Judges are the senior judges in a locality. These tend to deal with cases that require a lengthy hearing.

The High Court

The High Court hears all the more important civil cases. It is the lower half of the Supreme Court of Judicature and was brought into being under the Judicature Acts 1873–1875. It comprises three divisions which all have equal competence to try any actions, according to the pressure of work, although certain specific matters are reserved for each of them:

■ The Queen’s Bench Division (QBD) deals with all types of common law work, such as contract and tort. This is the busiest division. Matters concerning the construction industry usually come to this High Court. The division is headed by the Lord Chief Justice and there are about 40–50 lesser judges. These are known as puisne (pronounced

‘puny’) judges. There are two specialist courts within QBD. The Commercial Court hears major commercial disputes, usually in private, with the judge hearing the case in the more informal role of an arbitrator. The Admiralty Court hears maritime disputes.

■ The Chancery Division deals with such matters as trusts, mortgages, deeds, and land, taxation and partnership disputes. The division, whilst nominally headed by the Lord Chancellor and the Master of the Rolls, is actually run by a vice-chancellor, with the help of about ten to twelve lesser judges.

■ The Family Division deals with matters of family disputes such as probate and divorce.

This division is headed by a president and three lesser judges.

The High Court normally sits at the Strand in London but there are fifteen other towns to which judges of the High Court travel to hear common law claims.

The Court of Appeal

Once a case has been heard, either party may consider an appeal. This means the case is transferred to the Court of Appeal, where three judges usually sit to form a court. The High Court has the right to refuse an appeal. In civil appeals the appellant has six weeks from the date of judgment in which to give the Court of Appeal formal notice of appeal.

The appellant must specify the exact grounds on which the appeal is based and on which the lower court reached an ‘incorrect’ decision.

The Civil Division hears appeals on questions of law and of fact, rehearsing the whole of

The Civil Division hears appeals on questions of law and of fact, rehearsing the whole of