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vypracovaná otázka (19kový) č. 13 (q_13.doc)

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1. Courts of civil jurisdiction

The courts with original civil jurisdiction

County courts

The County courts were created in 1846 to exercise jurisdiction over small claims and collection of debts, which was subsequently extended by various statutes.

There are more than 300 of them in England and Wales and they are presided over by Circuit judges or Recorders. The administration of County courts is carried out by District judges (the former Registrars who were renamed ’district judges’ by the Courts and Legal Services Act 1990). The majority of civil cases are disposed of in the County courts by the judges sitting without jury.

The jurisdiction of county courts is limited by the nature and extent of the claim as well as the territory. Actions in tort and contract such as the collection of contractual debts or accident claims can be brought here where the amount at stake does not exceed 5.000 £ (e.g. actions for defamation which inevitably require trial by jury must always be brought in the High Court). County courts have also jurisdiction in equity matters e.g. actions on trusts and mortgages, the administration of estates and the dissolution of partnerships, bankruptcies and the winding up of companies, or in family matters such as undefended divorces, adoption, guardianship and legitimacy.

Magistrates’ courts

Magistrates’ courts have some civil jurisdiction, chiefly in relation to certain debts, licences and domestic proceedings such as maintenance of illegitimate children or prevention of family violence.

The High Court of Justice

The High Court is divided into three Divisions: the Queen’s Bench Division (common law), the Chancery Division (equity) and the Family Division (family matters).

A civil trial in the High Court is before a single judge, generally sitting without a jury. High Court judges are sometimes referred to as “puisne” judges.

The Queen’s Bench Division of the High Court

It is presided over by the Lord Chief Justice and it has succeeded to the jurisdiction formerly exercised by the old common law courts of Queen’s Bench, Common Pleas and Exchequer. It deals with the greatest number of cases notably those arising out of breaches of contract, commission of torts and claims for recovery of land. In this division are to be found the few remaining civil juries. Whilst most actions are now tried by a judge sitting alone, a jury will normally be empanelled whenever person’s character is likely to be in issue, based upon fraud and defamation.

Two specialised courts sit within the Q.B.D., the Admiralty Court and the Commercial Court.

The Q.B.D also exercises supervisory jurisdiction of the court issuing the prerogative writ of habeas corpus as well as granting special orders to ensure that magistrates’ courts and inferior tribunals exercise their power properly.

The Chancery Division of the High Court

This division inherited the jurisdiction formerly exercised by the old Court of Chancery. It is concerned with the administration of estates of deceased persons, trusts, mortgages, partnerships, companies, bankruptcies and revenue matters. The nominal president is the Lord Chancellor, but the organisation of the day-to-day business is carried out by a senior judge, the Vice-chancellor.

The Family Division of the High Court

This division was created by the Administration of Justice Act 1970 to deal with matters arising out of marriage, divorce, matrimonial property and children. The senior judge in the division is known as the President.

The courts of appellate civil jurisdiction

The High Court of Justice

In addiction to its original jurisdiction whereby cases are first tried by one judge, the High Court also exercises certain appellate jurisdiction. For this purpose two or three judges sit together and constitute a Divisional court. Divisional courts of the Q.B.D. may exercise criminal and civil jurisdiction. Civil appeals are heard from the decisions of certain tribunals. Divisional courts of the Chancery Division hear appeals from the County courts on bankruptcy question. Divisional courts of the Family Division hear appeals from magistrates’ courts, which are carried out by means of what is called a ’case stated’.

The Court of Appeal

The Court of Appeal is divided into two divisions, namely the Civil Division of the Court of Appeal and the Criminal Division of the Court of Appeal, consisting essentially of the Master of the Rolls, who is the head of the Civil Division of the Court of Appeal and the Lords Justices of Appeal. The Court of Appeal generally sits with three members, and there will be several such courts in action at the same time.

An appeal takes the form of a rehearing of the case through the media of the judges’ notes and the transcript of the official shorthand writer’s notes and by listening to argument by counsel. Witnesses are not heard again nor is fresh evidence usually admitted. The court has all the powers of the court below and may uphold or reverse the decision in whole or in part, it may alter the sum of damages awarded, and it may make a different order as to costs. In certain prescribed circumstances, e.g. the discovery of fresh evidence, a new trial may be ordered.

The House of Lords

When an appeal is taken to the Court of Appeal, a further appeal lies to the House of Lords.

A civil case may go on appeal direct from the High Court to the House of Lords, avoiding the Court of Appeal, under the “leap-frog” procedure introduced by the – Administration of Justice Act 1969. This can happen, with the consent of the parties and on certificate from the trial judge that the case id suitable for an appeal direct to the House of Lords on the grounds that it involves a point of law of general importance, which either relates to the matter of statutory interpretation or is a case in which a judge was bound by a previous decision of the Court of Appeal or the House of Lords. Finally, the House of Lords must grant leave for direct appeal.

The House of Lords, when sits as a judicial tribunal, differs in constitution from the legislative body. The judges are drawn from the Lord Chancellor, peers who have held or are holding high judicial office such as ex-Lord Chancellors, and the eleven life peers who are known as Lords of Appeal in Ordinary or Law Lords who sit in so called Appellate Committee. A case must be heard by three lords, although in practice five will normally do so. The decision of majority will prevail.

The House of Lords in its judicial capacity represents the final court of appeal in the UK in both civil and criminal cases, although it refers some cases to the European Court of Justice for a ruling.

2. Family Law and Marriage

Family law is a branch of law which all of us are affected by, whether due to some exceptional events having occurred in our family, or simply due to the fact that each of us is someone’s child and has been brought up in a way more or less compatible with moral, legal or customary rules.

Marriage as an act or state of being together as husband and wife leads to a creation of new rights and obligations between the couple. Amongst other things, they have a duty to maintain one another, to live together, and to share the same bed.

Legal validity of a marriage

In order to be legally valid, a marriage must be:

1.  
2. voluntary
3. between two single people
4. over sixteen
5. of the opposite sex
6. not closely related
7. (a person under 18 needs a consent to the marriage)

There are two basic methods of marrying:

8.  
9. in a Church of England ceremony
10. in a civil ceremony

The legal effects of marriage

11. Name: for a woman the most obvious change brought about by the marriage will be a change of name – usually taking her husband’s name. However, there is no legal obligation on her to change her name and she can retain her maiden name if she wishes.
12. Nationality: is a political status of an individual and this is not affected by marriage. A British national who marries a foreigner retains his/her nationality.
13. Domicile: a wife need not acquire her husband’s domicile, although in practice she will often do so. Domicile should not be confused with nationality, citizenship, or residence. Domicile is where a person has his permanent home or if he is living abroad, where he intends to return permanently. Residence is the place where a person happens to believing; a person can be resident in several countries at the same time but can only have one domicile.
14. Passport: an existing passport can be altered to the woman’s new name by sending the passport with the marriage certificate to the Passport Office where it will be amended. The newly married wife can use her existing passport until it expires, afterwards it has to be in her married name unless she has retained her maiden name.
15. Bank Account: if the newly married woman adopts her husband’s name she should ensure that her bank changes her name.

Marriage is a contract, but the courts will not enforce the contract between husband and wife. The courts will only intervene if the couple clearly intended a legal relationship to follow on from an agreement, such as when they are discussing a business matter. Different considerations arise if the marriage is breaking down. So if the couple decided to separate and drew up a separation agreement, the courts would probably enforce it if one of the parties did not carry out his/her part of the contract.