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vypracovaná otázka (19kový) č. 12 (q_12.doc)

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1. Legal profession

BARRISTERS AND SOLICITORS

A distinctive feature of the legal profession in England and Wales is that it is divided into two groups: barristers and solicitors. This division has frequently been the focus of debate and criticism and there have been calls for the fusion of the two branches of the profession. In the popular mind, the distinction between barristers and solicitors is that the former are concerned with the advocacy in court while the latter are concerned with legal work out of court. This is not quite the case. Barristers are primarily concerned with advocacy and they have an exclusive right of audience in the High Court, the Court of Appeal and the House of Lords; but they are not confined to advocacy and may devote a deal of their time to giving expert opinions on legal matters. Nor are solicitors exclusively concerned with out-of-court work for they have a right of audience in magistrates’ courts, county courts and, in some instances, in the Crown Court. Solicitors deal with almost anything that is or could be the subject of a dispute in law. They handle legal work, which does not come before court, such as drawing up deeds (wills, contracts, deeds of transfer of property etc.) and dealing with litigation which is settled out of court. Solicitors carry out the initial preparation of all cases and see them through to the finish. In a limited range of cases in the higher courts they have to brief the barrister for the actual court appearance but the handling of the case is still the responsibility of a solicitor.

This division of the legal profession is a curious one and is unknown even in many Commonwealth countries, which might have been expected to adopt the English professional model along with their adoption of the common law.

The education of both barristers and solicitors has common features. Both will normally complete the academic stage of their legal education by obtaining a law degree, though a law degree is not the only way to complete the academic stage. Both undergo a vocational stage though here the differences are more marked. The barrister takes the Bar Final Examination under the aegis of the Inns of Court School of Law while the solicitor takes the Law Society Finals under the aegis of the Law Society and in these examinations the emphasis differs to take account of their different roles. Both must complete a period of apprenticeship; pupillage in the case of barristers served under a pupil master (an experienced barrister), being called pupils during that time, and articles in the case of solicitors served under an experienced solicitor during which time they are called articled clerks. Here, at this “practical” stage, the difference is perhaps most marked since the day-to-day work of the barrister is quite different to the office routine of the solicitor. It is the purpose of both to ensure that the citizen has available sound professional services and advice to enable him to order his business and social life.

2. Trespass

It is a wrongful direct interference with another person or with his possession of land or goods. In the Middle Ages, any wrongful act was called a trespass, but only some trespasses, such as trespass by force and arms were dealt with in the King’s Courts. The distinguishing feature of trespass in modern law is that it is a direct and immediate interference with person or property such as striking a person, entering his land or taking away his goods without his consent. Indirect or consequential injury, such as leaving an unlit hole into which someone falls, is not trespass. Trespass is actionable per se i.e. the act of trespass itself. As it has already been suggested there are three kinds of trespass: to the person, to goods, and to land.

TRESPASS TO THE PERSON

A trespass to the person is an indirect, intentional interference with the person or liberty of another. It may take three forms – assault, battery and false imprisonment.

Assault: An assault is an act of the defendant which causes the plaintiff reasonable fear of an immediate battery on him by the defendant. Words alone cannot constitute assault. It has been suggested that if a person rounds a corner and is confronted by a motionless gunman, the gunman may commit an assault if he does not move the gun barrel away from the other person. However it is generally accepted that some movement is necessary to commit an assault: In Innes v. Wylie 1844, a policeman stood motionless in order to block a doorway. This was held not to be an assault.

Battery: Battery is the intentional application of force to another person. The amount of harm inflicted is relevant to the amount of damages awarded, but not to the determination of liability. It is a battery to throw something, e.g. water, at the plaintiff so that it hits him; or to remove a chair from under him; or to set a dog on him or to drag him away from something for his own good. Consent is a defence to battery, but the defence will not apply if the defendant does some act which was not contemplated by the plaintiff. In Nash v. Sheen 1953, P went to the hairdresser for a permanent wave, but was instead given a tone-rinse which changed the colour of her hair and caused a rash over the rest of her body. The hairdresser was held to have committed a battery. It is not a battery to touch a person to attract his attention.

False Imprisonment: This is the infliction of bodily restraint not authorised by law, which must be total. In Bird v. Jones 1845 D closed off the public footpath over one side of Hammersmith Bridge, and charged people admission to his enclosure to watch the Boat Race. P climbed into the enclosure from one side, and was prevented from leaving from the other side. He was however told that he could go out the same way that he came in. It was held that there was no false imprisonment since the restraint was not total. The plaintiff need not know that he is being detained. In Meering v. Grahame – White Aviation Co. 1919, P was suspected of thefts from his employers, although he did not know that he was a suspect. When he was asked to answer some questions concerning the thefts he voluntarily agreed – he still did not realise that he was a suspect. He later found out that while he was being questioned there were two of the works security guards outside the door who would have prevented him leaving if he had attempted to do so. He succeeded in his false imprisonment action, not on the grounds of his discomfort, but because of the injury to his reputation caused by his employer’s action.

TRESPASS TO LAND

Trespass to land is the direct interference with the possession of another person’s land without lawful authority. It is a tort actionable per se. Since trespass is a wrong done to the possessor only he rather than the owner can sue. Possession includes not only physical occupation, but occupation through servants and agents. Mere use, for example a lodger, is not possession. Interference must be direct, either by entering on land, or remaining on land after permission to stay has ended, or placing objects on land. If a right to enter is abused this may be a trespass. In Harrison v. The Duke of Rutland 1893, the Duke owned a grouse moor. A road led across this moor which he allow public to use. P however abused this right of entry by deliberately firing the grouse just as the Duke and his party were about to shoot. P was physically restrained by members of the shooting party and he brought an action for false imprisonment. His action failed because proportionate and reasonable force may be used to restrain or effect a trespasser and P, because he had abused his right of entry, was a trespasser. Entry below the surface is a trespass, as is entry into airspace, if it takes place within the area of ordinary use.

TRESPASS TO GOODS

Trespass to goods is the direct interference with the possession of goods. The interference must be direct and not consequential, although in some cases physical contact is not necessary, for example to chase cattle is a trespass to goods.

Generally the interference will take one of 3 forms:

1. taking the goods
2. damaging goods, or altering their physical condition
3. interfering with goods, for example moving them about

Only persons in possession (i.e. having immediate physical control) can sue. Some persons not in actual possession are deemed to have possession for this purpose. For example a master, who has given custody of his goods to his servant, or the personal representative of a deceased person, is deemed to be in possession.