Unit 1Introduction to the English Legal System

IN BRIEF...

T he English common law system is considered by many to be the matriarch of all common law
systems in the world today. However, it may surprise you to learn that the system of binding case
law precedent was not an English invention at all. In 1066, William the Conqueror – the first
English Norman King, laid the foundations for the introduction of a system of law that was
common to everyone. Thus, began a process of unification of the law in England.

The impact of history on the English legal system cannot be ignored. Many initiatives introduced
by later monarchs, King Henry II (circuit judges), King James I (fusing common law and
equitable Courts) and King John (signing the Magna Carta) still influence the English legal
system and the world today.

Ancient legal principles and maxims borrowed from Latin writings, adopted through usage of
Law French and modernised by international trade are still taught at universities and they are
essential tools for legal practitioners.

The global practice of law may have slowly led to the deterioration of the separation of the main
branches of the profession – solicitors and barristers – but the prestige and honour of being a
lawyer remains in many cultures. Many influential leaders in world history have been drawn
from the legal profession.

WHAT’S IN THIS UNIT?

History of the English Legal System ►► learn the historical background to how the English
legal system was founded and developed

The English Court System ►► examine the hierarchy of the English Court system and the
role of specialist tribunals

The Legal Profession ►► study the role of solicitors and barristers in the English system and
explore the different areas of modern legal practice

The Language of Law ►► delve into the language of law tracing the influence of Latin and
Law French and the use of archaic terminology

ANNEXURE ►► a Diagram of the Hierarchy of the English Court System

Lesson 1 - A historical overview

Introduction

There are many types of legal systems in the world. We can classify them into civil
law, common law, customary law, religious law, and mixed law systems. With globalization,
these legal systems are continuously changing and slowly merging.

The civil law system is based on codified laws derived from Roman law principles. Most
continental European countries, Central and South America have civil law systems.

In contrast, the common law system is based on rules and doctrines developed by judges who
follow case law precedents. A case law precedent is a judgement or an order from a court used
as binding authority for later cases. This is also called judge-made law. Common law
countries include England and Wales, Australia, Canada, New Zealand, and the United States on
a federal level.

However, the common law system is more complex than this simple division. It is useful to
consider the history of the English legal system to understand the dynamics of common law.

Roman Britain

Historically speaking, the Romans conquered the whole of England and Wales and parts of
Scotland. They named this area Roman Britain. The Romans introduced laws based on Roman
law principles. The Romans occupied Roman Britain from the time of Emperor Claudius in 43
AD until their withdrawal around 410 AD.

Roman Britain was then attacked by the Anglo-Saxons and by 600 AD, new kingdoms had
emerged – Wessex, Sussex and Northumbria. These kingdoms introduced their own system of
laws. There was no unified national legal system and each court in each kingdom made arbitrary
decisions based on local customs.

William the Conqueror

In 1066, William the Conqueror, the Duke of Normandy, conquered England and Wales. He set
up the King’s Court also known as the Curia Regis. This court was set up at Westminster, not far
from London. The Curia Regis was not just a royal Court but also a royal household where the
King and his advisers lived. William the Conqueror can be thought of as the father of common
law as it was his idea to introduce a central system of justice.

King William also thought it was a good idea for the King to be close to his subjects. He would
travel around England and meet citizens who would bring their disputes to the King and his
advisers.

King Henry II

In 1154, King Henry II came to the throne after years of unrest and civil war. He wanted to
introduce stability and develop the single court system even further but also saw the need for
control to remain with the King. At this time, there were eighteen appointed judges.

King Henry II ordered five of these judges to remain in London as a permanent court to decide
cases in his name. The remaining thirteen judges went on circuit, which means that they became
“travelling judges” and went to different parts of the country. They applied the same laws as in
London and local laws were replaced by national laws. The law was common to everyone and
hence the term – the common law.

Eventually, these laws were written down, recorded, and published. This meant that previous
legal decisions were available and could be used by parties to argue and support their cases.
Judges elevated these decisions and used them as binding authority for pre-existing legal
principles. This is how precedent was developed. Today, we can say that precedents are a
distinctive feature of the common law.

The use of precedents to develop law is central to understanding the evolution of the common
law.

Magna Carta
In 1215, King John of England and his Barons settled their dispute about taxation by signing
the Magna Carta. Magna Carta means the great charter. By signing the Magna Carta King John
agreed to limit his powers and subjected all English Kings and Queens to the sovereignty of the
UK Parliament. One clause in the Magna Carta states:

“No free man shall be seized or imprisoned except by the lawful judgment of his equals or by the
law of the land.”

The Magna Carta was modified in 1217, 1225 and 1297 until it became enshrined in English
law. It was first printed in 1508 and it became the primary piece of law that English law students
would study.

Today, the Magna Carta is considered the blueprint for liberty and human rights and was referred
to in the United States Declaration of Independence and the Bill of Rights. The Magna Carta also
influenced the Universal Declaration of Human Rights, which states that people around the
world are protected by fundamental human rights regardless of citizenship, race, gender, or
beliefs. The Magna Carta has validated the principle that everyone, including political leaders,
must obey the law.

What started as a dispute over increased taxes by rebel barons against King John is now the
international symbol of rights and liberties.

DID YOU KNOW?

The Magna Carta is more than 800 years old and an original copy
is held at Salisbury Cathedral.

Common law and the emergence of Equity

Even though Kings had delegated most of their powers to judges, they kept some control over
the justice system. In fact, citizens were able to take their disputes directly to the King once a
year. This meant that the King was another source of law. To ask the King directly was known as
to petition the King.

For a while, the King did indeed hear cases, but eventually appointed his most senior advisor,
the Chancellor to take his place. The Chancellor saw this as an opportunity to set up a special
court – Court of Chancery. This Court heard disputes outside the normal common law
jurisdiction.

Over time, the common law developed a large volume of precedents and by the fifteenth century
had become burdened with delays, leading to great discontent and technicalities. Legal
proceedings became very expensive.
Against this background, around the thirteenth century, the Court of Chancery applied principles
of Equity and did not follow the precedents established by the common law courts. Equitable
decisions are based on what is considered right or wrong, on the merits of the case and, in
accordance with good conscience. This led to the creation of new rights and remedies. We can
say “equity” is not just a system of rules and doctrines but rather applies philosophical ideas of
fairness, morality, and rightness.

As can be expected, Equity proved to be extremely popular and soon the procedures in the Court
of Chancery also became expensive and slow. Litigants now had to choose whether to take their
cases to a common law Court or through the Court of Chancery. This led to the development of
two competing and parallel courts, each with their own jurisdictions and remedies.

Worse still, equitable remedies and common law remedies often meant different and competing
solutions to problems. For example, the Court of Chancery could send somebody to prison for
trying to enforce a common law judgment. In short, it created chaos and confusion. A solution
was needed and in Earl of Oxford’s case (1615) 21 ER 485, King James I decreed that if there
was a conflict between common law and equity, equity was to prevail.

But that did not resolve the problem completely. Courts exercising only common law or
equitable jurisdiction, led to forum shopping. Forum shopping means that lawyers choose the
Court which offers the best solution. In some cases, parties were forced to start two actions in
separate courts.

Once again, this was confusing, time consuming and very costly. In 1873, Parliament passed
the Judicature Act, which joined the common law and equitable courts.

Today, parties can go to most courts and ask the judge to apply both common law and equitable
principles to their disputes and obtain remedies founded both in common law and equity.

CAN YOU REMEMBER?

What is case law precedent?

What is the name of the Act which fused the common law and
equitable courts?
Lesson 2 - The English Court System

The Court system in England and Wales has developed in an ad hoc manner. Ad
hoc means that the Courts and their jurisdictions developed over time and they continue
to develop even to this day.

Generally speaking, the English Court system can be divided into Courts that have
either civil or criminal jurisdiction. Civil Courts deal with disputes between private
parties arising out of contracts, negligence, property disputes, commercial problems and
company law. Criminal Courts have jurisdiction over criminal matters, and these are
prosecuted on behalf of the State, called the Crown.

Another difference between Civil Courts is that they have the power to award
damages or other remedies whereas Criminal Courts may imprison defendants
and/or award compensation to their victims.

The hierarchy of Courts

In England and Wales, the Courts are arranged in a hierarchical way. At the top we have
the Senior Courts which hear appeals from the Lower Courts and set binding precedents for
Lower Courts to follow.

 The Inferior Courts or Courts of First Instance: The Magistrates’ Court and the
County Court are courts of first instance, meaning the first court that the case is
presented in. We also call them Trial Courts. These Courts will hear the facts and apply
the law to these facts. These are very busy Courts as the majority of cases will begin here.
 The Magistrates’ Court: The Magistrates’ Court is primarily a Court where criminal
matters are heard. A criminal matter is an offence against the State and the accused may
be punished and sent to prison if the offence is considered serious. It is estimated that
almost 95% of all criminal cases are dealt with in this Court. In some small towns, the
Magistrates’ Court may also exercise some limited civil jurisdiction.
There are no jury trials in the Magistrates’ Court. Rather the trial is dealt with by a panel
of three magistrates who are generally not legally qualified. They are assisted on
questions of law by Court appointed legal advisors.
District Judges hear cases in the Magistrates’ Court, sitting alone. They are usually
legally qualified with a minimum of a five-year right of audience. This means they have
at least five years’ experience advocating in court as a lawyer representing parties.
 The Crown Court: The Crown Court is the Court where serious offenders in criminal
cases are taken. Serious offenders may be charged with murder, manslaughter or rape.
Trials in the Crown Court are heard by a judge and before a jury. Crown Court judges
continue to go on circuit to locations outside Central London just like they did in the
times of King Henry II.
 The County Court: The County Court is an Inferior Court which deals with civil cases.
The jurisdiction of the County Court is limited to £100,000 except in personal injury
cases which are set at £50,000. All cases above these monetary jurisdictional limits must
be commenced in the High Court.
 Family Court: The Family Court is responsible for hearing cases dealing with family
matters, such as divorce. Appeals from this Court go directly to the High Court in the
Family Law Division.
 The High Court: As mentioned, civil cases which exceed the jurisdictional limits of the
County Court need to be started in the High Court.
 The High Court is divided into three divisions: Queen’s Bench, Chancery and Family
Law. The Queen’s Bench would hear cases involving a breach of contract, the Chancery
division would hear cases involving disputes over wills and trusts.

Appellate Courts

Appellate Courts hear appeals. They are different from the Trial Courts. The Trial Courts will
hear a case and make rulings on the facts and law. Appellate Courts reconsider these decisions
and make sure that the law has been applied correctly in the cases heard in the Lower Courts. An
appeal under English law is not an automatic right but rather an appellant must ask for
permission to appeal from the judge who makes the decision. We call this leave to appeal and
permission will only be granted for an error of law.

The Court of Appeal The Court of Appeal has appellate jurisdiction only. It may hear
appeals, mainly on points of law from the Criminal Courts and the Civil Courts.

The UK Supreme Court The UK Supreme Court is at the top of the hierarchy. This Court
came into force on 1 October 2009, and so can be thought of as a relatively new Court.
Previously, the UK Supreme Court was called the House of Lords. However, this caused
confusion because the Upper Chamber of the UK Parliament is also called the House of Lords.
The UK Supreme Court was therefore named to give the appearance of judicial independence. It
is the final court in the hierarchy and hears appeals only on points of law (rather than the facts of
the case) in both criminal and civil matters. It can also hear appeals from Northern Ireland but
not Scotland, which has a separate legal system. Understandably, high profile cases end up in the
UK Supreme Court: the right to die, the legality of abortion laws in Northern Ireland and more
recently, the Brexit cases.

Finally, another important body inside the UK Supreme Court is the Judicial Committee of the
Privy Council: the highest Court of Appeal for a number of Commonwealth Countries,
including Trinidad and Tobago, Mauritius and Jamaica.

There are some Commonwealth countries which decided to seek legal independence from the
United Kingdom and have passed legislation to stop appeals from their national Courts going to
the Judicial Committee of the UK Supreme Court. Australia is one of these countries which saw
its very last appeal go from the Court of Appeal of the Supreme Court of New South Wales to
the UK Privy Council on 27 July 1987. Nevertheless, important precedent cases since 1987 in
the UK are considered persuasive authority but not binding authority by the Australian courts.
Persuasive authority means that it may have some influence on judgements in Australia.

WHAT IF…

... an Australian party is unhappy with the outcome of their case.

Can they bring an appeal in Privy Council, the UK Supreme Court?

Tribunals
Tribunals in English common law are not Courts. They are administrative tribunals which
primarily deal with administrative law matters. There is a hierarchical organization for tribunals
as in the ordinary Court system. The hierarchy can broadly be divided into first tier
tribunals and upper tribunals. Appeals from the upper tier go to the High Court –
Administrative Division.

There are many tribunals which deal with employment, immigration, health and education, such
as the Employment Tribunal (England & Wales, Scotland) and the Employment Appeals
Tribunal which hears appeals from the Employment Tribunal. Other tribunals include the
Immigration and Asylum Tribunal, Criminal Injuries Compensation, Mental Health, Property,
Social Security and Taxation.
Alternative Dispute Resolution

Apart from Courts there are also other important ways to resolve disputes. Alternative Dispute
Resolution (ADR) includes informal negotiations, mediation and arbitration. The Courts are
strong supporters of ADR and actively encourage parties to use ADR to resolve their disputes
instead of going through the Court system.

DID YOU KNOW?

The Magistrates’ Court and the County Court are bound to follow
the decisions of the High Court, the Court of Appeal, and the UK
Supreme Court.

Online Courts
Even prior to the worldwide COVID-19 pandemic, it was possible to apply for divorce online
and some money claims up to £10,000 could also be lodged online.

In some criminal law trials, particularly where young, fragile victims or witnesses are involved,
the Courts accept their evidence through video link. Video links are also set up in prisons for the
accused.

CAN YOU REMEMBER?

What are the two types of Courts in the English system?

How are Courts and Tribunals different under the English Court
System?
Lesson 3 - The Legal Profession

There are two main types of lawyers in common law jurisdictions. We use the term
“lawyer” to talk about a person who has legal qualifications. Historically, the legal
profession in England and Wales was divided into lawyers who were either barristers or
solicitors.

 A barrister mainly specializes in advocacy in the courtroom and litigation.

Advocacy means to present an argument and barristers present arguments or
cases on behalf of parties to litigation. In other words, barristers are normally
involved in contentious work.
 Solicitors are distinguished from barristers. Solicitors are lawyers who have direct
contact with clients. They “solicit” the clients for the barristers. Solicitors normally
do transactional work and non-contentious work such as drafting contracts,
wills, and conveyancing.

Barristers

In many common law courtrooms, barristers are distinguished from solicitors as they are robed.
“Robed” means that they wear a horsehair wig, stiff collar, bands and a gown. Very experienced
barristers are appointed to the position of Queen’s Counsel (QC) or Senior Counsel (SC).
A Queen’s Counsel wears a silk gown and QCs are often called “silks”.

Barristers are regulated by the Bar Standards Board, a division of the General Council of the
Bar. Law students who wish to become barristers need to take the Bar Professional Training
Course (BPTC).

Barristers have rights of audience before senior and inferior courts. A “right of audience” means
they have permission to speak in front of a judge.

The day-to-day work of a barrister includes arguing cases before the Courts, drafting pleadings,
researching the law, and giving expert legal opinions. Opinions are also called legal advice.
Pleadings are specific pleas which is an old English word meaning “requests”. A party puts these
pleas in their court documents. Pleading is an exceedingly difficult and highly technical skill
which barristers have used and passed down since medieval times.

Barristers work in offices called chambers. Chambers in London are found in the four Inns of
Court: Grays’ Inn, Lincoln’s Inn, Middle Inn, and Inner Temple. Some Inns are also in the
circuit regions of the UK countryside.

The Inns offer educational resources for barristers and trainees and by de facto or de jure, are
vested with regulatory powers over the way barristers run their practices.

Barristers in Inns share the expenses and support services of ancillary staff such as secretaries.
The Inns are administered by clerks. Clerks are like the CEOs of the Inns. In many jurisdictions
being a barrister is considered to be highly honourable and prestigious.

Solicitors

Solicitors are usually legally qualified and are admitted to practice by having their names entered
on the Roll of Solicitors originally held by the Supreme Court of England and Wales. The
Master of the Rolls is the President of the Court of Appeal of England and Wales. He is the
second highest ranking judge in terms of seniority.
The Solicitors Regulatory Authority (SRA) is now responsible for keeping the Roll of Solicitors
in England and Wales. The SRA is also responsible for regulating solicitors. Solicitors also
become members of the Law Society of England and Wales, a professional association which
represents solicitors and provides training and other support services.

Although traditionally, solicitors did mainly non-contentious work, today their role is constantly
changing. Due to their expertise, solicitors may provide legal advice to their clients and are
responsible for all correspondence with the client and the other party’s legal representatives. A
solicitor is therefore responsible for managing the client and does a lot of the preparatory and
administrative work behind the scenes when getting the client’s case ready for Court. They are
also crucial for barristers in Court where they are required to instruct the barristers. “Instruct”
means to tell the barristers important information and communicate the client’s instructions
during the trials.

When it comes to payment, barristers address their invoices (also called fee notes) to the
solicitors, as contractually speaking, the clients of the barristers are the solicitors themselves and
not the individual parties. Ethically speaking, solicitors are personally liable for the payment of
the barrister’s fees even if the clients do not pay the solicitor. Since January 2008, solicitors have
gained rights of audience and may represent their clients in Court without a barrister. This new
class of solicitor is known as the solicitor advocate.

Both barristers and solicitors in the UK sit at the Bar Table in Court and are not allowed to walk
around and stand in front of the jury like lawyers in the US.

WHAT IF…

... a client does not pay a solicitor for a barrister’s work. Who can
the barrister ask for payment?

Judges
Judges in England and Wales have traditionally been appointed from the ranks of the barristers.
In recent times, some solicitors have also been appointed to the bench. The “bench” refers to
place where the judge sits in a court. The appointment of Judges is regulated by Parliamentary
Acts. Judges are also appointed according to seniority with the most senior and experienced
judges sitting in the UK Supreme Court. Appointments of senior judges are made by the Queen
on the recommendation of the Prime Minister who in turn receives the advice of the Lord
Chancellor. The Lord Chancellor is a senior member of the government and the Head of the
judiciary.

Tribunal Members
Cases are usually heard by three members who are representative of society (lay person), the law
(legally qualified member who also acts as the chairman) and industry sector (a specialist
member with practical experience in the subject matter underlying the dispute between the
parties).

Originally tribunals were set up to deal with disputes in an informal way and lawyers were not
permitted to appear before them. However, matters going to tribunals today are as complex as
matters going to Courts and lawyers often assist clients with the preparation of their cases.
Administrative tribunals are often subjected to judicial review. Judicial review means that
judges in the High Court check that the Tribunal has not acted ultra vires or with mala fides.
They ensure the Tribunal has not made any jurisdictional errors.
 Other professionals

Attorney (in the US) Synonymous with the term lawyer

Attorney (in the Somebody acting on behalf of someone else (usually called a principal)
UK) after being granted a power of attorney

Counsel (in the US) Lawyer who appear in court; synonymous with the term barrister

In-house Counsel (in Lawyer who is employed by a company or in a private or public business
the UK)

Paralegal Law student – supervised by a lawyer – who are working in law firms
during their studies and before qualifying as lawyers

Areas of Law

Civil Matters Criminal Matters – Offences against the

All matters which are not criminal State and action is brought on behalf of the
State and the Crown

Contract Law agreements between parties and –

provides damages to those who suffer damage and/or
loss caused by a breach

Company Law covers the incorporation of companies, –

the rights and duties of directors and shareholders

Business Law covers the law regulating the way –

businesses are set up and operate and all business
transactions

Law of Tort covers the responsibility not to harm –

others even if there is no contractual relationship

Other areas Land Law, Law of Equity and Trust, –

Employment Law, Family Law

CAN YOU REMEMBER?

What does advocacy mean?

Who regulates solicitors in England and Wales?
 Lesson 4 - The Language of Law
Introduction

Working with language and communicating effectively are essential skills for all lawyers. Law,
like many other professions, has its own language which has been developed over hundreds of
years making it technical and difficult for non-lawyers to understand. This is often
called legalese.

Legal writing is characterized by the use of Latin and French terminology.

WHAT IF…

... a judge says this sentence: “Prima facie, the contract is to be

considered void ab initio, inter alia, due to the absence of bona
fide negotiations on the part of the parties ”. Can you explain to
your client what the Judge is saying using plain English?

Latin

Common law contains many Latin terms. Law students and practitioners need to understand the
meaning of these terms and be able to explain them to their clients using plain English
terminology and use them correctly. Some Latin terms in law include:

Term or Meaning Term or Meaning

Expression Expression

ab initio from the beginning male fides bad faith

(Contracts Law)

actus reus a guilty act (Criminal mens rea a guilty mind (Criminal Law)
Law)

ad hoc to this, created for a obiter dictum a remark in passing (Judgements)

specific purpose

alibi elsewhere (Criminal onus load or burden (Civil and Criminal

Law) Litigation)

amicus curiae friend of the Court pari passu with equal step
(Litigation)

ante before per through, by means of

bona fide in good faith per annum every year

(Contracts)
caveat let him beware per curiam by the Court
(Property Law)

caveat emptor let the buyer beware per incuriam through lack of care
(Commercial and
Property law)

de facto in fact, as a matter of per se by or in itself or themselves,

fact, in reality intrinsically

de jure of law, as of legal post after or subsequent to

right or by right

et cetera (etc) and so on prima facie at first appearance or on face value

exempli gratia for example pro forma as a matter of form

(eg)

ex gratia done as a matter of pro rata in proportion

favour or in goodwill

ex parte on the part of one quantum as much as he deserved

party, on behalf of meruit

id est (ie) that is quasi almost, or as if it were

ibid in the same place qui facet per he who acts through another, acts
alium facit per through himself (Contracts Law,
se Commercial Law)

ignorantia ignorance of the law quorum this is the number of shareholders or

juris non does not excuse directors needed to be present at a
excusat meeting to declare it validly constituted
(Company Law)

in camera hearing in private, ratio decidendi the reasons for deciding (Judgements)
hearing in Chambers
(Litigation)

in curia in open Court res judicata a matter that has been decided
(Litigation) (Litigation)

in personam against the person res ipsa the thing speaks for itself (Tort Law)
loquitur

in re in the matter of sic so, thus

in rem against the thing stare decisis to stand by things decided

inter alia among other things tort civil wrong or an injustice (Tort Law)

in situ in the original place ultra vires beyond or outside the powers or
jurisdiction

intra inside, within versus (vs) of against

(v)

intra vires within the powers videlicet (viz) namely

inter vivos between living people volenti non fit no wrong is done to one who consents
injuria (Tort law and Criminal Law)

ipso facto by that very fact or act

Law French

Following the Norman conquest of England in 1066 by William the Conqueror, Law French (originally a
Norman French dialect used by the ruling Anglo-Normans) was introduced as the language of the Courts.
The English ruling class spoke Anglo Norman and the lower classes continued to communicate in English.

Many Law French terms originated from Latin but were shortened and distorted through usage.

Even though Law French is not used today, many terms have been retained and continue to be used. Here is
a list of some of these key terms.

During the 14th century, vernacular French suffered a rapid decline when all social classes began
communicating in English, and the use of Law French was criticized by those who argued that lawyers
sought to restrict entry into the legal profession. The Pleading in English Act 1362 made it compulsory for
all pleadings to be in English. This signaled the beginning of the end of Law French.

Term of Modern Day Usage

Phrase

attorney “to be appointed”, as in attorney at law or power of attorney

bailiff Anglo-Norman word for “steward” or “administrator”; used to describe a Court

official

charter originally referred to “split paper”; used today in shipping to describe a contract
party between an owner and a hirer of a ship

chattel “property” or “goods”; used to refer to personal property

chose thing or cause used as chose in action or chose in possession (Commercial Law)

culprit “the guilty party”

defendant “person against whom an action is brought”

demise “to send away” or “to give away”; used in property law to refer to a transfer of
real property

estoppel Anglo-Norman word meaning “to stop” or “plug”; used to refer to a situation
when a person is prevented from contradicting a previous statement or position
taken

force modern French word meaning “a superior force”; used to describe unforeseen
majeure events releasing parties from their agreements and liability

Grand Jury French term used in American Legal System for the legal body whose function is
to officially investigate potential criminal conduct and decide whether charges
should be laid; in the English legal system called Royal Commissions or Royal
Inquiries

jury Anglo-Norman word meaning “oath” or “legal inquiry”; used to describe a group
of lay persons sworn to decide on the innocence or guilt of an accused person

laches Anglo-Norman word meaning “laziness” or “slowness” and used in Equity to

mean “delay in commencing legal action against a party”

larceny Anglo-Norman word for “theft” and used in criminal law to refer to theft of
personal property

mortgage “dead pledge”; used to describe security given to a bank for lending money to
buy real property, like land or a house

parole “voice” or “spoken word”; used in Contracts Law to prevent a party from
evidence changing the terms and conditions of an agreement by introducing spoken words
rule

parole “word” or “speech”; it refers to the release of prisoners on their promise to follow
certain restrictions or conditions for their release

plaintiff “to complain”; it refers to the party starting legal proceedings against another

voir dire “to tell the truth”; used in legal proceedings to refer to a mini trial held to
determine whether a particular type of evidence can be presented to the Court or
jury.
 Archaic Words

Old archaic words used in legal correspondence include the following.

Term or Meaning Term or Meaning

Expression Expression

the aforesaid set out above/written above herewith with this

the written below, or set out below thereafter after that

undermentioned

the foregoing set out above/written above thereby in that way/by that

hereafter after this therein in that document

hereby by this or in this way thereinafter later in that thing or

document on in that place

herein in this document thereof of that

hereinafter starting from this or a later time thereon on it or on what I have just
talked about

hereof of this thereto to that

hereto to this therewith with that

heretofore earlier in this document or notwithstanding despite or in spite of

previously in this document

hereunder in a later part of this document said or the said just mentioned, or already
identified

CAN YOU REMEMBER?

What does caveat emptor mean?

What is a voir dire?
CASE STUDY: THE FIVE MILLION DOLLAR COMMA
A PRECEDENT-MAKING CASE IN THE COMMON LAW

The now infamous comma (,) case of O’Connor and Ors v Oakhurst Dairy; Dairy Farmers of
America Inc, 2017, demonstrates how punctuation and especially the “Oxford Comma” can have
devastating consequences if not used correctly.

Oakhurst Dairy, a US company from Maine, manufactured and delivered milk products. The truck drivers
started legal proceedings because they were not being paid overtime. Overtime means that you work more
hours than your contract says or outside the period agreed, for example, being asked to work after 5pm.

In Maine, workers’ overtime was regulated by state legislation. The relevant part of the legislation said:

When reading this long sentence, you can see that there is no comma after the word “shipment” so the
phrase is “packing for shipment or distribution” and not “packing for shipment , or distribution”. So this
might mean packing for shipment or packing for distribution, not the act of distribution which is what the
truck drivers were doing.

In English grammar, we call the last comma in a list a serial comma. It is also called the Oxford
comma because Oxford University Press systematically use the comma in this way. It is a common style
of punctuation in the UK. However, in the US, this last comma is optional.

The drafters of legislation in Maine did indeed ignore the Oxford comma. The result was the creation of
ambiguity when it came to reading the legislation.

The truckdrivers’ Counsel picked up on this ambiguity and sought (aimed) to challenge the interpretation
of the legislation. They said that due to the absence of the comma between shipment and or, the
truckdrivers were not covered by the provisions of the statute. The truckdrivers argued that they were
distributing the milk products, not packing them, so were not referred to in the legislation.

The Truckdrivers’ “comma case” went all the way to the US Supreme Court in Washington. Both parties
presented their side of the dispute to the Court.

PIT STOP

Answer the following questions related to the text you’ve just read.
1 What type of products does a dairy company make?
2 What did the truck drivers want?
3 Would a cook in a strawberry jam factory in Maine be paid overtime?
Why?
4 The absence of what type of punctuation created the ambiguity?
5 What is another name for the Oxford comma?
6 What did the truck drivers argue?
The Comma Argument The Dairy Company argued that the drafting manual used by Maine’s
legislative drafters recommended they do not use the Oxford comma. Drafters are people who write
(draft) laws and contracts.

The Truck Drivers agreed that the manual says this, but they added it was optional. The drafters were
allowed to choose whether or not to use the Oxford Comma. They chose not to use it and as a result
created ambiguity.

Conclusion: The Court decided in favour of the truck drivers. The Court ultimately concluded that
despite the interesting arguments involving punctuation, the laws are written to protect citizens. Further,
the Court said that where there is ambiguity in any law, the Courts will read the statutory provision
against the party seeking to rely on it – in this case the Dairy Company. This is an important Latin
principle – the contra proferentum.

Contra proferentum means “against the one putting it forward” and so,
ambiguities in documents (contracts, deeds etc) and or statutes should be
interpreted against the drafter. The Courts feel comfortable doing this
because it is assumed that the person producing the document should
avoid any ambiguities when drafting it.

PIT STOP

Put a cross (✘) in the correct box.

The court found in favour of the truck drivers because

 the punctuation of the Act was incorrect.

 the Oxford comma is not accepted in the US.
 the overtime clause in the Act was ambiguous.
 the truck drivers had worked very long hours.

Why does this case matter?

Punctuation matters. A simple comma cost the dairy company five million dollars. When writing any
contract, the drafter is responsible for making sure that there are no ambiguities in the contract. If there
are, due to contra proferentum, the Court will find in favour of the other party to the contract.

However, this is not the first time the comma became the culprit.

The Telecommunications Comma

One of the biggest cases involving a comma was Rogers Communications and Bell Aliant in 2007. They
fought a legal battle worth a million Canadian dollars ($760,000) involving a contract for the replacement
of utility poles across Canada.

The Contract clause said:

The dispute centred around the comma after the words “for successive five (5) year
terms , unless…” with each party having its own interpretation of what that clause meant.
Bell Aliant’s position was that a single year’s notice of termination applied at any time. Rogers,
on the other hand, argued that the notice of termination only applied after the first five-year term
came to an end.

The interpretation of this clause was crucial to Rogers. They had an exceptionally good deal if
their interpretation of the contract was correct because at the time, they signed the contract in
2002, they paid Bell Aliant only CAD$9.60 to lease each of the poles.

The cost of the poles had nearly doubled by 2004 and Bell Aliant wanted to terminate the
contract to renegotiate at a new, higher price. Rogers resisted this.

The decision: Canada’s Radio-Television and Telecommunications Commission first ruled in

favour of Bell Aliant in 2006 but in 2007, reversed its decision after reading the French version
of the contract. The latter did not include the same ambiguity. So the final ruling was in favour
of Rogers.

OVER TO YOU!

What do you think of the outcome of the two comma cases?

Did the Court come to a fair and just conclusion in each case?
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