Introduction to law

LG101
Introduction to Law
• Sources of Irish Law and Introduction to the Irish Legal System
• The Irish Court System
• The Irish Judiciary and their independence
See P. 118 Byrne & McCutcheon
• The Constitution
• Interpretation
• Constitutional Rights
• Natural Law/abortion and the constitution
(Chap 15 3rd Ed. Byrne & McCutcheon)
• The Doctorine of Precedent
• Appellate Jurisdiction of Irish Courts
• Damages
(3rd Ed. is Chap 10 p 301)
• Free Legal Aid
(3rd Ed. Chap 9 p 291−300)
• The European Union
(3rd Ed. Chap 16 p 291−300)
The Interpretation of Legislation
CIVIL LEGAL AID
SEE 'The Irish Legal System' Byrne & McCutcheon
(3rd Ed. is Chap 9 p 291−300)
Governed by The Civil Legal Aid Act 1995.
Run by the Legal Aid Board.
Run locally by Community Law Centres.
The 1995 Act establishes 2 tests:
1. The Merits Test
s. 24 of the 1995 Act
a person shall not be granted legal aid unless a reasonably prudent person who could afford to engage such
services would be likely to do so and where a solicitor or barrister would be likely to advise such a person to
obtain such services at his own expense.
2. The Means Test
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The person applying for legal aid must either be dependent on social welfare or have an annual income below
the specified threshold. In 1995 that limit was £7,350.
s. 28(2) imposes 5 specific requirements:
(a) The person must be financially eligible (limit £7,350)
(b) There must be reasonable grounds for taking the proceedings
(c) The person must be reasonably likely to be successful
(d) That these legal proceedings are the best method of achieving the result sought by the plaintiff.
(e) The overall cost to the Legal Aid Board
Factors (c) and (e) will not be taken into consideration if the case is a family law case concerning the welfare
of a child.
Some court proceedings are excluded from Legal Aid:
• Defamation
• Conveyancing
• Small claims
• Licensing
The rule in civil proceedings is that costs follow the event
This means that the loser pays the winners costs as well as his own.
A winner does not have to deduct the cost of paying his legal representatives form his award of damages.
DAMAGES
SEE 'The Irish Legal System' Byrne & McCutcheon
(3rd Ed. is Chap 10 p 301)
The most important judicial remedy.
The principle is that the successful plaintiff be put back in the position they were in before the wrong
occurred.
A plaintiff should not make a profit from litigation.
Damages should compensate only
Eg Wall v. Hegarty pl sued his uncle's solicitor for £15,000.
But Sometimes damages can never completely compensate but are the next best thing. Donoghue v.
Stevenson [1932] H.L.
There are 2 types of damages in most personal injury claims:
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1. Special Damages
Are for out of pocket expenses such as medical expenses, loss of earnings, damage to motor vehicle, taxis to
hospital, new clothes, new crash helmet.
They can be past (up until the day of the trial) or future (losses that will be incurred from the day of the trial
onwards.)
The court will award a once off amount. There will be no staged awards every year until the injury gets better.
How can the court award an amount for damage that hasn't happened yet?
Answer
Factors to be taken into account in assessing loss of earnings?
Age, salary,
2. General Damages
These cover things other than pecuniary (financial) loss.
There are 3 types
(a) pain & suffering
Thinking you are going to die in the crash, the ongoing fear when you drive, the whiplash injury to your neck,
(b) loss of amenities
can't walk the dog, swim, play the violin, loss of libido.
(c) Reduced life expectancy
Punitive Damages
These are an exception to the rule that damages are not intended to punish the defendant but to compensate
the plaintiff only.
Punitive damages are extra damages awarded against a defendant to punish them.
They may be intended to punish a defendant who consciously and deliberately violated the rights of the
plaintiff.
See Kennedy v. Ireland [1987] I.R. 587
They may also be awarded where the court feels that they defendant will still make a profit even after the
plaintiff has been compensated.]
Eg News of the World Libel action
Another name for punitive dames is exemplary damages.
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The European Union
Chap 16 B & McCutcheon (3rd Ed.) page 655
1951 The ECSC Treaty
(6 countries)
1957 The EEC Treaty
called the Treaty of Rome
(created the common market)
The aims of the common market were:
Free movement of goods
−to abolish quotas between m/s
−to abolish customs duties between m/s
−to abolish restrictions on the movement of goods between m/s
−to have a common customs tariff with 3rd countries
−free movement of workers between m/s
−CAP common agricultural policy
• Denmark, Ireland & UK joined
• Greece joined
1986 The Single European Act
(created the single market, an updated version of the common market)
(Spain & Portugal joined)
• The Maastricht Treaty
(called the Treaty of the European Union TEU)
covered subjects other than economics
countries agreed to move towards EMU (economic and monetary union) i.e. a single currency (the euro)
• Finland, Sweden & Austria joined
(now are 15 E.U. member states)
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1997 The Treaty of Amsterdam
(amended the Maastricht Treaty)
2001 Treaty of Nice
(rejected narrowly in Ireland)
Norway has voted twice in a referendum not to join the E.U.
Czech Rep, Slovakia, Poland, Hungary, Slovenia, Estonia, Latvia, Lithuania, Turkey, Malta, Cyprus have
expressed interest in joining. Agreement's of association.
We joined in 1972
Ireland has a Dualist legal system
1. The Govt signed the treaty
2. Also An act of the Oireachtas was passed to incorporate the Treaty of Rome (EC Treaty) into Irish Law.
SOURCES OF EUROPEAN LAW
Primary−−−−−−−−−−−−−−−−−−−−The Treaties
Secondary−−−−−−−−−−−−−−−−Regulations
Directives
Decisions
Recommendations and opinions
The Treaties
The primary legislation is the Treaties themselves. Eg the Treaty of Rome, The Maastrict Treaty, The
Amsterdam Treaty. They must be signed by the member state and ratified by the parliament of the member
state. In Ireland we must also have a referendum.
As a result of the Supreme Court case Crotty v. An Taoiseach we in Ireland must, because of our
constitution, have a referendum every time the Government wishes to sign up to an international treaty which
gives law making power to a body other than the Oireachtas.
Important case (p 673 B & McC)
As a result of this case, the law of the European Union takes precedence over national law. Therefore if there
is a conflict between the two; E.U law should be given priority. Any provision of Irish law which conflicts
with any of the articles of the treaties is invalid.
Some countries (like Ireland and The Netherlands) have expressly provided in their constitution that E.U. law
takes priority.
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Secondary Legislation.
Regulations are directly applicable which means they are binding on each member state without any further
action required on the part of the member state. Once made they become part of Irish Law. They have
immediate binding force. Each one is given a registration number along with the year it was passed.
E.g. Reg 1612/68 on the Freedom of Movement.
They have general application which means they are binding on all m/s.
See p 705 B & McC 3rd
NB
Directives are more common. They harmonise the laws of each of the member states. They are not directly
applicable. Each member−state is supposed to implement the directive using its own national law. They
usually set out an objective to be achieved within a time limit (e.g. 3 years) and leave it up to each member
state as to how to achieve it. Ireland and the UK have different legal systems to the rest of Europe. In Ireland
we do not need to go through the 5 stages of the Oireachtas to create a new Act every time we wish to
implement an E.U. directive. The relevant minister simply issues a Statutory Instrument (or SI).
Directives may be directly effective however!!
Francovich v. Italian Republic
Failure to implement directive 80/987/EEC on protection of employees on employer insolvency
In Ireland
McDermott & Cotter v. Min for Social Welfare
79/7/EEC on equal treatment of men & women
If the directive is one which confers rights on individuals, then it will become law in Ireland (directly
effective) once the time−limit expires even if it is not implemented by the Irish Government.
E.g. Murphy v. Bord Telecom 1989 ILRM 53
____________________________
Decisions are binding but only on the m/s to whom they are addressed. E.g. the decision to approve the Irish
government's £175m state aid to Aer Lingus in 1993.
They are very useful in the field of competition law where the E.U. decides that 2 large companies should not
be allowed merge because it would distort competition.
Recommendations and opinions are not binding. E.g. of recommendation was the Comm's reprimand to
Ireland on its last budget and tax cuts.
The ECJ and CFI also make law the same way Irish courts do. I.e. Case law. 2 early cases are Van Gend en
Loos & Da Costa.
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There are 4 main European Community Institutions
The Commission
The Council
The European Parliament
The European Court of Justice
Introduction to Law
Sample Examination Papers
Section
Section A
Section B
Section C
Do
Must do Q. 1
Either Q. 2 or Q. 3
Either Q. 4 or Q. 5
Marks
40 marks
30 marks
30 marks
(Max Time)
(48mins)
(36mins)
(36mins)
Sample Paper I
Section A (40 points)
Attempt Question One
Question One
Pat the Postman suffered severe back injuries while delivering post one day. The problem was that the houses
on a new estate had their letterboxes fixed at a very low level. This meant that he had to bend deeply each
time. He complained about this to his fellow postmen who agreed with him. They talked to the union solicitor
who advised them that they could sue An Post for negligence. Three postmen took up this advice. Pat the
Postman sued An Post for damages totalling £32,000.00; Fred the Postman sued An Post for damages
totalling £23,000.00; Peter the Postman sued for £5,000.00.
• Explain in which court or courts Pat, Fred and Peter must initiate their action against An Post.
• They all lose their case and decide to appeal the decision. Pat and Fred want to appeal the case de novo.
Explain whether they can do so. Explain in what court Peter can appeal on a point of law.
• Advise the three postmen about the possibility of obtaining free legal aid. Explain whether there are
alternatives if they fail to obtain free legal aid.
• Explain what is meant with:
• General damages
• Special damages
Punitive damages
The Appellate Jurisdiction of the Irish Courts
Read: Chap 7 Byrne & McCutcheon (3rd Ed) page 227
Hierarchy Supreme Court
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High Court
Circuit Court
District Court (inc small claims court)
Constitution Art. 34.4.3
The SC has jurisdiction to hear all appeals form the HCt subject to exceptions in legislation
In general there are 2 forms of appeal
−`de novo' appeal
−appeal on a point of law
A. `de novo' appeal
Is a full hearing as if the earlier one never happened. (e.g. DCt >>Cir Ct)
a second bite of the cherry
both the plaintiff and the defendant and their witnesses must go into the witness box, give their evidence
under oath and be cross−examined again.
The appeal Ct is limited to the jurisdiction of the lower court (called the court of first instance) e.g. Dct civil
_____ criminal____or _____.
B. Appeal on a point of law
Limited appeal
All facts not rehashed
Transcript of previous hearing used for factual evidence
No new witnesses.
No new evidence (exception: DPP v. Meleady &Grogan)
Appeal judge will not go behind findings of fact by the trial judge. Trial Judge will have benefit of assessing
demeanour of witness.
(Exception: secondary findings of fact = incorrect deduction from a fact)
CIVIL APPELLATE JURISDICTION
District Court appeal options (£0−£5k)
• De novo to Cir Ct
• Case stated to High Ct (appeal on a point of law)
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2 types
Is when a trial judge submits a question of law to a higher Ct to be decided. Case then remitted back to DCt
for disposal)
Then Final appeal to SC on a point of law
• Art 177 Reference to ECJ
Circuit Court appeal options
• appeal de novo to High Ct (then further appeal to Supreme Ct on point of law)
• Case−stated to Supreme Ct on a point of law
• Art 177 Reference
High Court appeal options
• appeal on a point of law only to the Supreme Court.
• There is no de novo appeal
• May appeal quantum
Art 177 Reference
An Irish Court fomuulates a question of E.U. law and submits it to the ECJ for an answer. The ECJ decides
the issie and then remits it back to the national court so as it can dispose of the case.
These references become binding precedents for judges in other E.U. states faced with the same legal points.
2 types of references
−−manditory
−−discretionary
THE CONSTITUTION AND ITS INTERPRETATION
Chap 15 B & McCutcheon p 545
The Free State Constitution 1922
It referred to the British Crown `The Goverenor General'See p 545 footnote
Anglo Irish Treaty
Civil War 1922 constitution accepted partition
Sinn Fein ..Cumann na nGaedheal ..Fine Gael
Bunreacht (basic law) na hEireann (of Ireland)1937
It created a Republic
Refers to the president
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New FF govt had a referendum
`law & manifesto'
LAW
− language
− Name of the State
− institutions of state,
− separation of powers
legislative branch − the Oireachtas (Dail & Seanad),
executive branch− The Government
judicial branch − The courts Supreme & High
−the state −claim on 6 counties now based on consensus.
− Fundamental rights (influenced US Bill of rights)
e.g. men7 women can vote in Dail elections
courts must sit in public no retrospective criminal laws
trail by jury in serious criminal cases
equality
no titles of nobility
liberty
parents right to educate their own child
right to own public property
CONSTITUTIONAL JUDICIAL REVIEW
The HC & SC given the power IN Art 34.3.2 to declare any legislation repugnant to the constitution.
Aspirational − a united Ireland
− special status of women
− the special importance of the family unit
NB UNENUMERATED RIGHTS
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ARTICLE 40.3
40.3.1 The state guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate
the personal rights of the citizen.
40.3.2 The state shall in particular by its laws protect as best it may from unjust attack and, in the case of
injustice done, vindicate the life, person, good name and property rights of every citizen.
Ryan v. AG [1965] IR 294
>Health Act (Fluoridation of Water Supplies) Act 1960
>Plaintiff's right to bodily integrity
>>>>Art 40.3 contains a guarantee to protect bodily integrity even though it is not actually mentioned.
Other unenumerated rights which the courts say exist
The right to marital privacy McGee v. AG [1974] IR 284
The right to individual privacy Kennedy v. Ireland [1987] IR 587
The right to procreate Murray v. Ireland [1991] ILRM 465
The rights of a single G v. AN Bord Uchtala [1980] IR 32
mother concerning her child
Byrne v. Ireland [1972] IR 241
LOCUS STANDI (standing)
In order for an individual to challenge the constitutional validity of a piece of legislation he must be directly
affected by it.
E.g. Norris v. AG
McGee v. AG
Legislation struck down in the past
Blake v. AG [1982] Rent Restrictions Act 1946−60
King v. AG [1981] `loitering with intent'in Vagrancy Act 1824
NB AG v. X [1992] 1 IR 1
SC decided 40.3.3 of the constitution permitted abortions when the life of the mother was in immediate
danger.
NB In re the regulation of Information of Information (Services ouside the state for the Termination of
Pregnancies) Bill 1995 [1995] 1 IR 1 the SC found was not repugnant to their interpretation of Art 40.3.3
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NB In re Ward of Court [1995] 2 ILRM 40: the SC allowed the withdrawal of a gastronomy tube from a
woman who had been in a rear PVS for over 20 years.
PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
Methods the courts use to see what the words of the constitution mean for an indv
P 606 Byrne & McCutcheon
The Literal Approach
sticks to the actual text of the constitution and goes no further.
The ordinary natural meaning of the words
Inspector of Taxes v. Kiernan
pigs were not cattle
DPP v. O'Shea [1982]
appeals from Cen CCt to SC
2 judges
The Historical Approach
DPP v. O'Shea
appeals from Cen CCt to SC 3 judges majority
McGee v.AG HC
Keefe P in HC (reversed in SC) s. 17 Crim Law Amend 1935 .. no right to marital privacy ..intention of public
in 1937
De Burca v. Attorney General [1976] IR 284
Juries Act 1927 .. landowners only
The Purposive/Harmonious Approach
Interpreting a phrase in a way which is line with the general scheme of the constitution
Aka the schematic approach
Means the constitution is consistent
E.g. Tormey v. AG [1985]
Meaning of Art 34.3.1
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(the HC has full & original jurisdiction to hear all cases civil & criminal)
Courts Act 1981 had to go to Cir C Ct
SC said Art 34.3.1 should not be read literally because to do so would be absurd. The High Courts jurisdiction
was full in other ways. Judicial reviw.
Natural Law Theory
idea that some law is derived from God and is not dependent on man
reflects the catholic ethos in Ireland
idea that man cannot interfere with natural law
man made law is called positive law.
Thomas Acquinas. The Catholic Church
Abortion
How much is natural law taken into account in Ireland
Utilitarianism
Idea that law should try to benefit society overall
The common good
Rejects the idea of a higher law
Law should not interfere with the activities of a private individual as long as no one is harmed
The Liberal Agenda
The right to choose
The right to die
Decriminalisation of homosexual acts
SOME IMPORTANT DECISIONS
McGee v. AG [1974]
Norris v. AG [1984]
AG v. X [1992]
In Re The Regulation of Information Bill 1995
In Re a Ward of Court [1995]
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THE APPOINTMENT AND INDEPENDENCE OF JUDGES
APPOINTMENT
See P. 118 Byrne & McCutcheon
1994 Harry Whelahan Affair see p. 116 B&McC
The Judicial Appointments Advisory Board
Court & Court Officers Act 1995, 10 persons
High & Supreme == Barristers and lower judges
District & Circuit == Solicitors & Barristers
INDEPENDENCE 5 points
1. Independent from govt & parliament
Art 34.5.1 oath: ` without, fear, favour, affection or ill−will'
2. Independent in the performance of tasks Art 35.2
No judge can be also a TD or senator
3. Nemo iudex in causa sua
can't be a judge in your own cause
Dublin Wellwoman Centre v. Ireland [1995] ILRM 408 Carroll J. the test of objective bias rather than
subjective bias.
Pinochet Case
AG v. X [1992] 1 I.R. 1 O'Hanlon J's public comment on the decision of the SC that Art. 40.3.3 appeared to
authorise abortion in certain limited circumstances.
4. Audi alteram partem
The Sheedy Affair Hugh O' Flaherty ., Cyril Kelly . Michael Quinlan
5. Tenure until retirement 70, 65
remuneration 47, 57, 77, 83
immunity from suit (being sued)
ban on appearing in court after retirement− equal or lower
SOLICITORS AND BARRISTERS
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Solicitors
Have an office
Contact with the public
Handle clients money
Do conveyancing (transfer of ownership of a house)
Do wills
Give general advice
Do not tend to specialise greatly
May form partnerships
Speak in District Court
Full right of audience
Barristers
Self employed sole traders
May not form partnerships
Speak mostly in Circuit & higher courts
Prepare a case for court
Argue a case in court
Senior Counsel SC's & Junior Counsel BL's
Give written advice to solicitors (opinions)
May specialise in one area
Law Society
Solicitors Acts 1954−94
Kings Inns
Bar Council
Self regulating
Immunity from suit
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Other law officers
Read Chap 3 of Byrne & McCUtcheon (3rd Ed)
Source 3: E.U. Law
There are 15 member states of the E.U.
Ire. GB. France. Lux Ger. Neth's. Aus. Swe. Greece. Spain. Portugal. Belg. Italy. Den. Finland.
The E.U. generates a huge amount of law mainly on economic and social matters such as competition between
business, free movement of goods, free movement of workers within the E.U.. E.U. law can be enforced both
in national courts and in the European Court of Justice. If E.U. law conflicts with national law, E.U. law
prevails. It is supreme.
There are 3 law−making Institutions of the E.U.:−
• The Council
Is made up of 15 members, one Government Minister from each state. It will not always be the same Minister
voting. E.g. the Minister for Agriculture will attend to vote on matters of agricultural policy. It is the most
powerful institution of the E.U. and the one closest to individual member states as it is made up of ministers
from each member state. The Council votes by qualified majority (QMV), which means the bigger states have
more votes than the smaller ones. Certain decisions require unanimity.
• The Commission
Is the civil service of the E.U. It acts in the interests of the E.U. as a whole and is the institution most
independent of the wishes of individual states. Each state has at least one commissioner. Some have 2. The
Commission has the power of legislative initiative which means it alone proposes new law. It is the driving
force behind the E.U. However the Council must approve every new law. If a state does not obey E.U. law the
Commission will take it to The European Court of Justice. E.g. Comm. V. Italy. It may also impose large fines
for failure to obey decisions of the Court. There are 20 commissioners, each nominated by a m/s. The Comm
is divided into 23 departments called DG's or Directorate Generals.
• The European Parliament
It Is the least powerful of the 3 institutions. (but the most democratic) Its 626 members (called MEP's) are
elected directly by citizens of the E.U. in local European elections. Its most important function is that it must
approve the nominated Commissioners en bloc or as a whole. The council must either co−operate, consult or
co−decide with the parl. In making E.U. law.
E.U. legislation is divided into primary and secondary legislation.
The primary legislation is the Treaties. Eg the Treaty of Rome, The Maastrict Treaty, The Amsterdam Treaty.
The must be signed by the member state and ratified by the parliament of the member state.
All the rest are secondary legislation.
Regulations are directly applicable which means they are binding on each member state without any further
action required on the part of the member state.
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Directives are not directly applicable. They usually set out an objective to be achieved within a time limit and
leave it up to each member state as to how to achieve it. Each member−state is supposed to implement the
directive using its own national law. In Ireland we do not need to go through the 5 stages to create a new Act
every time we wish to implement an E.U. directive. The relevant minister simply issues a Statutory Instrument
(or SI).
Decisions are binding but only on the m/s to whom they are addressed. E.g. the decision to approve the Irish
government's £175m state aid to Aer Lingus in 1993.
Recommendations and opinions are not binding. E.g. of recommendation was the Comm's reprimand to
Ireland on its last budget and tax cuts.
The ECJ and CFI also make law the same way Irish courts do. I.e. Case law. 2 early cases are Van Gend en
Loos & Da Costa.
_____________________
Source of Law no. 4
Case Law_____________
The laying down of decisions by judges in individual cases.
Those decisions are then called a precedent and should be followed.
Hierarchy of Courts
Judges make law
Stare decisis stand by the decision
Ratio decidendi
Obiter Dictum in passing
Distinguishing a precedent
Binding auth v. persuasive auth.
Constitutional interpretation
Constitutional Judicial Review e.g. Attorney General v. X 40.3.3
Re A Ward of Court unenumerated right
Source 5: The Common Law
History of Eng &Wales
Different to civil law system
E.g. doctrine of consideration
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E.g. damages
Source 6: Equity
An ameliorating jurisdiction.
E.g. doctrine of part performance
E.g. injunction
Other sources are
−international law e.g. Geneva Convention, Dublin Convention
−custom*
−canon law *
−academic commentary & writing
Hierarchy of laws?
1. EC law
2. Constitutional Law
3. Primary leg
4. Secondary leg
Sources of law is dealt with well in Chap 2 Byrne & Mc Cutcheon's `The Irish Legal System' (2nd Ed)
Different Types of Law
Schematically we can draw the following picture:
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• Sources of Law
• Constitution
− fundamental rights, abortion right to die
−establishes organs of state , courts, president, parliament,
−general framework on which our legal system is based
−constitutional interpretation
−divorce
−death penalty
−referendum , The Nice treaty
• Legislation
• Primary legislation
−Called Acts or Statutes
−Bills go thru 5 stages of parliment to become law
−must not conflict with the constitution
• Secondary legislation
Also called subordinate or delegated legislation.
Is when parliament has delegated the power to make law in certain circumstances to a person or body
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E.g. A minister or Dublin Corp. or Law Society
• EU Law
• Treaties e.g. Maastrict Treaty, Treaty of Amsterdam (Nice)
• Regulations are directly applicable to member states
• Directives need to be implemented by Ireland
• Decisions binding on the m/s they are addressed to
• Opinions not binding
• Case Law/Doctrine of precedent
• (Stare Decisis means let the decision stand
• Ratio Decidendi means the reason for deciding
• obiter dicta means in passing)
• Historical sources
• Common Law
• Equity
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Van Gend en Loos v. Nederlandse Belastingenadministratie [1963] ECR
The ECJ held that a Dutch company could sue in a Dutch court using European law. The Dutch authorities
were charged a higher duty on imported chemicals than ones produced in The Netherlands.
SUMMARY OF TOPICS
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