Chapter 1 Flashcards
1
Q
What must be met for a defendant to obtain a representation order?
A
Means and Merits Tests
2
Q
What is the means test for criminal representation orders?
A
Automatic if under 18, on UC, pensions etc, or if income is under £12,475 (adjusted income)
3
Q
What is the merits test for criminal representation orders?
A
Interests of justice test. Automatic if under 18 or trial in CC.
4
Q
What is s28 PACE?
A
Suspect must be informed of reason for arrest at the scene.
5
Q
What is s30 (1)(a) PACE?
A
Suspect should be taken to the police station as soon as reasonable
6
Q
When does the custody clock start?
A
From arrival at the station, or, if they originally attended voluntarily, the time of their arrest
7
Q
When must detention reviews be carried out?
A
6 hours after the suspect’s detention was authorised. Every 9 hours after that.
8
Q
How can authorise an increase to 24hr detention and for how long?
A
A superintendent can increase detention up to 36 hours.
Anything past that requires magistrate approval up to 96 hours total.
9
Q
When is an increase to detention allowable?
A
On reasonable grounds to preserve evidence, or obtain evidence.
The offence must be indictable.
The process must be continuing diligently without undue delay.
10
Q
Who must authorise the taking of intimate samples?
A
Rank inspector or higher
11
Q
When may personal effects be seized by the police?
A
Reasonable grounds of believing they are evidence or that the suspect may use them to harm themselves, others, property or use it to escape.
12
Q
Who can deny legal advice to a suspect at the police station and why?
A
Superintendent or higher. If would cause unreasonable delay.
Must be an indictable offence.
13
Q
How long can legal advice be denied for at a police station?
A
36 hours max
14
Q
When can the right to inform someone of arrest be delayed and who by?
A
Indictable offence. Must be authorised by inspector or higher.
Concerns of informing someone, affecting evidence, etc.
15
Q
How long can the right to inform someone of arrest be denied for?
A
Max 36 hours
16
Q
What should be done if A suspect refuses legal advice, and who need to to authorise this?
A
Inspector or higher. Must be in writing and speak to the suspect. Inspector must think it is appropriate to continue without legal aid.
17
Q
What happens if there is not sufficient evidence of the suspect’s involvement?
A
Suspect should be released immediately unless
Custody officer has reasonable grounds for believing that detention is necessary for the preservation of evidence or to obtain evidence by questioning.
18
Q
Who can remove a solicitor or appropriate adult from a suspect interview?
A
Superintendent.
An inspector can but only if the superintendent is not available.
19
Q
What should a custody officer not do on the suspect’s arrival at the station?
A
Put any questions about their involvement in the crime to the suspect.
20
Q
How often should a suspect be given a break at interview?
A
Every 2 hours.
21
Q
When can confession evidence be excluded?
A
If it would have such adverse effect on the fairness of proceedings that the court ought not to admit it.
22
Q
Who should an ID officer be?
A
Rank inspector! In uniform and not involved in investigation.
23
Q
When does an id procedure not need to be held?
A
If suspect’s story is not contradictory to eyewitnesses and it is not disputed that the suspect is known to the eyewitness.
24
Q
How many people need to be in a parade line up?
A
- 12 if more than 2 suspects.
25
How many videos need to be used in a video ID?
8
26
How many photos to be used in a photo ID?
12
27
If the suspect is under the age of 14, who must consent to an ID procedure?
Parent or guardian.
28
Are co defendants competent and compellable for the prosecution?
No, unless jointly charged and tried separately or at a earlier hearing and pleaded guilty.
29
Are co defendants competent and compellable for the defence?
Competent, but not compellable.
30
Is the defendant’s spouse competent or compellable for the prosecution?
Competent but not compellable unless the offence involved them as a victim, children or sexual offences.
31
Is the defendant’s spouse competent and compellable for the defence?
Yes
32
What is the custody time limit before trial for an either way offence at the magistrate court?
70 days
33
What is the custody time limit for a summary offence at the magistrates court?
56 days
34
When must the prosecution apply before the hearing to extend the defendant’s remand?
At least 2 days before the hearing
35
If bail is refused when and who must a notice of appeal be served to?
Serve on CPS 24 hours before the hearing.
36
When does a presumption of bail not apply?
Defendants committed to the crown court for sentence.
Defendants appealing their conviction or sentence.
Murder, attempted murder, rape, attempted rape, man slaughter, serious sexual offences etc.
37
When can the prosecution appeal the grant of bail?
If the offence is imprisonable, and CPS indicated that they would appeal at the hearing and confirmed this within 2 hours of the hearing in writing.
38
When will an appeal on bail by the prosecution be heard by the courts? (Timing)
Within 48 hours of application as the defendant will be on remand in custody in this time.
39
If a suspect fails to surrender to court whilst on bail, who decides whether to charge for an offence of failure to surrender?
CPS, unless the defendant was granted bail by a request to the court. In this event, the court will decide.
40
When can police arrest someone on bail?
If the officer reasonably believes that the defendant is not likely to surrender to court, and that they have broken or likely to break the conditions of bail.
41
How long does a police officer have to bring someone arrested on bail before the magistrates?
24 hours
42
How long can someone be remanded in custody before conviction?
8 days at a time. Maximum 28 days.
43
How many custodial remands must a defendant have before they are brought before the court to discuss remand?
Every 4th remand.
44
How long can a person be kept in police custody for whilst on remand, if the purpose is to investigate other offences?
3 days
45
After conviction how long can someone be In custody for before sentencing?
3 successive weeks
46
What are the periods for bail after conviction but before sentence?
4 weeks.
47
How long does counsel have to prep for a criminal trial without expert evidence? And with expert evidence?
8 weeks.
14 weeks
48
If the defendant has a representation order, what must they obtain permission for?
Expert instruction
49
What must an expert report include?
Addressed to court, signed, dated, statement of truth, copy served, and no objection within 7 days of service.
50
What is the form of a statement of truth?
I understand that proceedings for contempt of court may be brought against anyone who makes or causes to be made a false statement in a Document verified by a statement of truth without an honest be,if in its truth. I be,I’ve that the facts stated in this document are true.
51
When must a preliminary hearing take place (timing) (criminal)?
Within 10 business days of the magistrates sending it to the crown court.
52
When might a preliminary hearing be required (crim)?
There are case management issues, defendant is under 18, the trial will be 4 or more weeks, an early trial is preferable, guilty plea may be entered and do away with need for trial.
53
When is the PTPH (crim) to be held?
Within 20 business days of being sent to trial (if no preliminary hearing)
54
When must a draft indictment be served by the prosecution before the PTPH?
7 days before hearing
55
When must a defence statement be served (PTPH, crim) (timing)?
Magistrates court: 10 business days of initial disclosure by CPS. optional
CC: 20 business days of initial CPS disclosure. Mandatory.
56
When must the prosecution serve their initial disclosure by?
Summary: as soon as practicable and no later than first day of the first hearing.
E-W: 3 days before hearing
Indictable: as soon as practicable
57
What is the crown court means test?
£37,500
58
When can specific disclosure be ordered of the prosecution?
After service of the Defence Statement.
59
What does a defence statement set out?
Facts and law, alibis and witnesses, defences, any factual issues
60
When can a summary offence be trialled at the crown court?
If linked to an E-W offence, and is either:
Common assault, taking a conveyance without consent, driving whilst disqualified or criminal damage.
61
When can other offences be sent to the crown court if the first offence is indictable only?
If a summary offence, must be punishable with imprisonment or disqualification from driving.
Must appear to be linked.
62
Must witness statements and expert reports be served on CPS?
Witness statements, no. Expert reports, yes.
63
What if there are multiple defendants and one requests a crown court hearing for an either way offence?
All defendants sent to crown court
64
When will the court summon a witness? (Crim, MC)
If satisfied the witness can give material evidence and it is in the interests of justice.
65
When must witness names, DOB and addresses be served on CPS?
Within 28 days of disclosure.
66
When is a witness not sworn in?
If under 14 or severely impaired.
67
How many jurors are there?
12
68
When must a jury verdict be unanimous (no exceptions)?
If there are only 9 jurors.
69
When must a written admission of agreed facts be submitted (crim)?
Within 14 days of allocation
70
How long does CPS have to serve representations on the defence statement?
14 days from service
71
When must witness statements be served (crim, timing)?
14 days before trial
72
How long does CPS have to object to witness statements?
7 days from service
73
How long is there to request special measures in court (crim)?
28 days from allocation
74
How long does CpS have to object to special measures in court?
14 days from service.
75
When must a notice to cross examine be served by?
Within 7 days.
76
What are the four grounds for admitting hearsay?
1. All parties agree to admit it
2. Statute - Any admissions not in dispute because the person who made them is unavailable - this cannot be multiple hearsay and the witness is identified to the court’s satisfaction.
Business documents - can be multiple hearsay. Evidence of inconsistent statements. Evidence of supplementary oral testimony. No objection within 7 days by other party.
3. Rule of Law: Res Gestae or is a confession
4. In the interests of justice and the court is satisfied to this.
77
When do the Turnbull Guidelines not apply?
When the defendant admits involvement due to self defence.
78
When must a Part 20 notice to introduce hearsay be served? (Timing)
Prosecution: 20 business days after a NG plea if in magistrates.
10 business days if CC.
Defence: as soon as reasonably practicable
79
When can a part 20 hearsay notice be submitted?
If the witness is unavailable, interests of justice, multiple hearsay, s117 business documents statement.
80
How long is there to object to a Part 20 hearsay notice?
Within 14 days of the first notice but as soon as reasonably practicable.
81
When can hearsay of a co accused be submitted?
If it implicates the defendant.
If the co accused pleaded guilty.
Any pre trial confessions.
82
When can a witness’s credibility be attacked? (Crim)
Important explanatory evidence; substantial probation value; agreement between parties.
83
What are the 7gateways for allowing character evidence regarding the defendant?
1. All parties agree
2. The defendant adduces it themselves
3. Important explanatory evidence
4. Relevant issue between defence and prosecution e.g propensity
5. Probative value e.g. defendant attacks co defendant’s character
6. To correct a false impression given by defendant
7. Defendant attacked another’s character
4 and 7 cannot be admitted if it would have adverse effect on fairness of proceedings.
84
What is the time limit for applying to court to exclude character evidence?
10 business days after service of notice.
85
When must a notice be served on the court and parties to adduce character evidence? (Timing)
MC: 20 business days after Ng plea
CC: 10 business days
Co defendant: 10 business days after prosecution discloses material of interest, and as soon as reasonably practicable
86
What is the maximum sentence the magistrates can impose?
12 months
87
What reductions of sentence can defendants get and when?
1/3 for pleading guilty on first hearing.
1/4 for subsequent hearings
1/10 for first day of trial
88
When can suspended sentences be given?
If the sentence is between 14 days and 2 years (cc). (12 months if mc)
89
What suspended sentences can be given?
6 months-2years
90
What is the maximum fine for breaching a suspended sentence?
£2.5k
91
How much unpaid work can be given as a sentence?
40-300 hours, within 12 months
92
How long can an exclusion requirement be?
2 years
93
How long can supervision be for an offence?
3 years
94
Who can be made to go to an Attendance Centre and for how long?
Offenders under the age of 25. For 12-36 hours.
95
If there is an appeal by way of case stated and it skips the crown court, what division will the appeal be heard in?
KBD high court
96
How long does the defendant have to appeal from MC to CC?
15 business days from conviction. Notice must be served on the court and cps.
97
Crown court appeals should be brought to which court? (Crim)
Court of appeal criminal division.
98
When can a defendant appeal to the COA after a crown court sentence?
If there is an error of law or the conviction is unsafe.
99
How long does the defendant have to apply for a right to appeal from the crown court against a crown court decision?
28 days
100
When can a conviction be appealed against (cc)?
Unsafe
101
When can a sentence be appealed against (cc)?
Wrong in law, principle, approach or manifestly excessive. Or disparity with co defendant.
102
If the court of appeal resentences a defendant after an appeal what is the maximum they can give?
Maximum of crown court powers.
103
What are children (Crim)?
Ages 10-13
104
What are youths? (Crim)
14-17 years old
105
If a youth turns 18 after their first appearance in court, can the youth court retain jurisdiction?
Yes
106
What is a persistent young offender?
Sentenced on 3 separate occasions for 1+ recordable (imprisonable) offence
107
If a youth commits homicide where must the trial be held?
Crown court
108
What court must a firearms offence of a youth aged 16+ be held in?
Crown court
109
When must violent or sexual offences by youths be sent to the crown court?
If they are a dangerous offender
110
What is a grave crime?
An offender of 21+ years may receive a 14+ year custodial sentence. (Murder, robbery, rape etc)
111
When may the youth court accept jurisdiction for a grave crime?
If their sentencing power of 24 month detention is sufficient.
112
When can the courts decide that parents may not attend?
Ages 16-17 offenders
113
If a juvenile is tried with an adult, when may the case be sent to the crown court?
If it is in the interests of justice
114
Can a juvenile be tried with an adult in the MC?
Yes, but the sentence will be sent back to youth courts, unless the magistrates are giving a fine or discharge.
115
What age of juvenile change remanded into custody?
Ages 17
116
What ages of juvenile cannot be remanded into youth detention centres?
Ages 10-11.
117
What ages if juvenile can be remanded into a youth detention centre and when?
12-17, with legal representation and violent or sexual offence, or history of absconding or offending on bail. Interests of public or prevent further imprisonable offences.
118
When must a referral order be made in the youth court?
If a juvenile pleads guilty to an imprisonable offence and they have never been convicted before.
119
What is a referral order?
3-12 month rehab programme
120
When should a community resolution be given to a juvenile?
First time offender
121
When should a youth caution be given to a juvenile?
Sufficient evidence of crime, admitted, not in public interest to charge
122
When should a youth conditional caution be given?
Realistic prospect of conviction, admitted
123
What age must a juvenile be for an adult have to be present for a youth caution?
Under 17
124
What age must a juvenile be for an adult to be present for a youth conditional caution?
Under 16
125
How long can a youth community order be?
3 years
126
When can a detention or training order be given by the youth court?
15-17, or if 12-14 must be a persistent young offender.
Pre sentence report must have addressed detention as a possibility.
Must be so serious that a community order is not sufficient
127
How long can detention or training orders given by the youth court be?
4,6,8,10,12,18 or 24 months
128
How long is youth rehab?
16 weeks for summary offence. 16 to 20 for indictable.
129
What is low value theft?
Under £200 - summary offence
130
When is criminal damage a summary offence?
If the damage caused is under £5k (unless caused by fire)
131
When is arson aggravated (mens rea)?
Subjective - danger to life apparent to defendant
132
When can an accomplice withdraw from a crime without offence?
Words alone if this is before embarking on the crime. Communication may not be enough if physical assistance has been given
133
What is burglary with intent?
Enter as a trespasser to burgle. Don’t actually have to take anything
134
What is indirect intent for murder?
Death was a virtual certainty
135
Does a conditional statement constitute as apprehension of force?
No
136
Can defendants be liable for omissions in criminal offences?
Only if they have a positive duty to exercise control over third parties
137
What does abetting require?
Meeting of minds
138
After how long can the judge direct a jury to agree a majority verdict?
2 hours
139
How long must a jury debate for before returning with a majority verdict after the judge’s direction for majority?
2 hours 10 minutes
140
What is a CON29M search?
Coal and minerals
141
What is a SIM search?
Index map mines etc search
142
For unregistered land, when running searches who must you run searches against?
Pre Root owners and PRs of any deceased estates
143
When must you register a legal charge by?
Within 21 days of the OS1
144
How do you discharge a mortgage on unregistered land?
Vacating receipt
145
When were ENDs discontinued?
2010
146
What must be submitted to discharge a mortgage?
DS1
147
What does a form DS3 do?
Discharge part of the land from a charge
148
What is a CON29 search?
Building regs, consents, certifications, road repair, contamination
149
What is a CON290 Search?
Optional searches. Number 22 is a common land search
150
What is a CON29DW search?
Drainage and water
151
What is an LLC1 SEarch?
Local search
152
Who do you run a company search against?
Seller companies
153
When do you run a bankruptcy search?
Against buyer with mortgage for the lender
154
If a lease states that works can be carried out with consent, when is it implied that consent cannot be unreasonably withheld?
If the works are improvements
155
When can you not act for both a lender and buyer?
If the risk of conflict is high - mortgage not standard or approved certificate of title is not used
156
What is form TA06?
Residential pre contract enquiries
157
When must SDLT be paid and on what form?
SDLT1, 14 days of completion
158
What is form K16?
Bankruptcy search
159
What is a C(IV) CHARGE?
Estate contract
160
What is a D(ii) charge?
Restrictive covenants
161
What is a D(iii) charge?
Equitable easement
162
What is an F charge?
Home right
163
When can an easement by prescription occur?
20 years, must have separate dominant and servient tenements.
164
When is an equitable easement upgraded to a legal easement?
If there is diversity of occupation and the enjoyer of the easement buys their part. Upgraded to legal if still in use
165
Does a positive covenant burden pass?
No
166
When does the burden of a restrictive covenant pass?
Tulk v Moxhay
1. Benefits dominant land
2. Touched and concerned land
3. Made with the intent if burdening the servient land
4. Is negative
5. Buyer has notice
167
When is a lease a licence?
When there is not exclusive possession
168
How much SDLT has to be paid by first time buyers?
None for housing under £300k. 5% from 300k to 501k.
169
What is SDLT for residential buyers?
0% for under 125k
2% for up to 250k
5% for up to 925k
10% for up to 1.5m
12%
170
What is SDLT for commercial buyers?
0% under 150k
2% up to 250k
5% up
171
are private residences exempt from CGT?
Yes unless grounds are more than 0.5 ha
172
What properties are exempt from VAT.
Greenfield and old properties. Can have option to tax
173
What are categories B, c, e(a), e(b), e(c), e(g), f and Sui generis for planning?
B is general industry, storage and distribution
C is residential
E(a) is retail (not hot food)
E(b) is food and drink for consumption on premises
E(c) is financial or professional services
E(g) is offices
F is learning or community
Sui generis is entertainment, drinking, food stands etc
174
If a Tenant is not paying rent what can landlords do to sub-tenants and how long must the notice be?
Divert future rent. 14 days
175
What happens in the SCPCs if landlord has not provided consent for assignment?
Completion is delayed until 5 days after notice of landlord approval served on assignee
176
Under the SCPCs how long before the contract is rescinded if the landlord does not approve assignment?
6 months
177
When must a lease be registered?
Lease of 7+ years within 2 months of its grant
178
When can an under tenant call for the deduction of freehold title?
If headlease is unregistered and under lease is for 7+ years
179
What must a section 146 notice contain?
Breach, remedy within reasonable time, required compensation
180
When can a landlord serve a s25 notice (timing)?
12-6 months before contractual termination date
181
When does a planning enforcement notice become effective?
28 days from service
182
What is the limitation period for claims for an operational development without a permit?
4 years
183
What is the limitation period for claims for a change to a single dwelling?
4 years
184
What is the limitation period for most breaches of planning?
10 years
185
What is the limitation period for breaches of building regulations?
2 years, but enforcement notice can only be brought within 1 year.
186
How much notice is required to the LPA for tree works?
6 weeks
187
What is an old lease?
Pre 01 Jan 1996 lease
188
Can a landlord increase rent as a condition of works consent.
No, unless structural
189
When is forfeiture available?
Express clause, non payment of rent
190
How long does a landlord have to wait after service if a s146 notice before forfeiture?
28 days
191
Which set of conditions has electronic deposit only?
SCPCs
192
Is the seller obliged to insure the property after exchange of contracts?
No! Unless a special condition inserted
193
When does risk of property damage pass to the buyer?
On Exchange
194
What Conditions state that the seller’s solicitor us a stakeholder of the deposit?
SC 2.2 or SCPC 3.2 unless specified as an Agent
195
What can a stakeholder of a deposit not do?
Release deposit until completion
196
What does SC2.2.5 do?
Allows seller to use deposit for house purchase
197
What happens under the SCPCs if the completion day passes?
Seller can serve a notice to complete.
198
What happens under the SCs if assignment not consented to by the landlord before completion?
Either party can rescind if permission not received 3 working days before completion. Can agree to defer.
199
What Conditions provide for an indemnity to be given to the assignor and when?
Both SCs and SCPCs. If they continue on to be liable under an AGA.
The TR1 must contain this indemnity.
200
If a landlord is pursuing a former tenant for rent how much can they recover?
Only 6 months from the service of a s17 notice.
201
If the landlord agrees to a new lease under a s25 notice, what must the tenant do?
Apply to the court before the expiry of the notice or they will lose their 1954 rights
202
When must a s26 notice be served? (Timing)
6-12 months before start of new tenancy
203
If the courts decide the terms of a new lease, what is the maximum term is can be for?
15 years
204
If a tenant wants to end a lease protected by the 1954 Act what is their notice period?
3 months - serve a s27 notice on landlord
205
If there is a breach of the lease, does the tenant get time to repair?
Yes, if the breach is for anything other than non payment, they get reasonable time to put it right.
206
When is a lease an overriding interest?
Less than 7 year leases
207
What is a parole exception lease?
3 years or less, no premium, market rent, in writing
208
Is there a presumption of undue influence between buyers?
Not if they are spouses. Can still have undue influence with mortgage though.
209
What does the family law act 1966 do?
Gives the non-owning spouse home rights.
210
What does open market rent disregard?
Goodwill, occupation, improvements
211
Can a landlord charge for assignment?
No
212
How is legal title of a property held?
As joint tenants, not tenants in common.
213
If a lease is 7+ years but the land registry does not have access to the superior title, how will the title if the lease be registered?
With good title
214
Who executes the TR1?
Seller. Buyer will execute if entering into an obligation or declaration.
215
What is form TP1?
TR1 but for part.
216
When does the seller’s solicitor act as an agent when completing?
If completing by post
217
What is Formula A?
One solicitor holds both parts of the contract
218
What is Formula B?
Each solicitor holds their own client’s part of the contract
219
What is Formula C?
Residential completion with a chain
220
What Formulae can send funds electronically on completion?
C. A&B will require variations to do so.
221
If a landlord wants to claim against a guarantor, when must they serve notice?
Within 6 months of the breach
222
When does forfeiture require notice?
If the lease is for 7+ years and there are 3 years left of the lease.
223
How long does a tenant have to serve a counter notice of forfeiture?
28 days. If they serve one, landlord will need court consent to continue to pursue.
224
What damages does the landlord receive for having to repair after breach?
Diminishment if value of property only.
225
If the landlord is going to claim damages for breach of repair, when can they do so?
If lease is for 7+ years and there is 3 years left on the lease. Tenant has 28 days to serve counter notice. If they do so, landlord will need leave of court to pursue.
226
When can a landlord use CRAR?
If there is 7 days’ rent outstanding.
227
How much notice does the landlord have to give the tenant before CRAR?
7 days.
228
What can’t a landlord remove during CRAR?
Cannot remove business critical items that are up to the value of £1350.
229
How much notice does a landlord have to give before they sell items obtained through CRAR at auction?
7 clear days
230
When does power of sale arise?
3 months of default, notice served and contractual date of redemption has passed.
231
What is required to complete a mortgage?
Certificate of title, clear OS1 in name of lender, solvency search against borrower, executed but not completed mortgage deed
232
What is required to be submitted to the Land Registry for Registered Land before the expiry of OS1?
AP1 form, DS1, certified copy of transfer, fee, SDLT certificate form D1, mortgage documents
233
What is the OS1 priority period?
30 working days. Noon on last day is the deadline.
234
What is form k15?
The OS1 for unregistered land
235
How long does a K15 give priority for?
15 working days.
236
For unregistered land, what must be submitted fir registration and when?
Within 2 months of completion. Form FR1, application fee
237
Do conveyancers have to submit original documents to the land registry?
No, but non conveyancers do
238
What is a TA13?
Completion information form
239
What is a TA15?
Undertaking by the seller’s solicitor to discharge the mortgage
240
How can a landlord opt out of the 1954 act?
Serve a notice on tenant at least 14 days before grant of lease. Tenant must make a declaration of agreement.
If given less than 14 days, this must be in the form of a stat dec.
241
When can a tenancy end? 7 grounds
1. S25 landlord notice
2. S26 notice
3. Forfeiture
4. Surrender
5. Notice to quit a periodic tenancy
6. 3 months notice served on landlord by tenant
7. Tenant ceasing to be in business occupation
242
What is a s25 notice?
Landlord notice to tenant ending the current lease
243
What is a s26 notice?
Tenant’s request for a new tenancy
244
How long does a landlord have to oppose a s26 notice?
2 months of service
245
What are the s30 ground s a landlord can oppose a new lease on (7)?
1. Failure to repair
2. Persistent delay in paying rent
3. Substantial breach
4. Landlord offered alternative accommodation
5. Tenant is an underletting of part
6. Landlord intends to demolish or reconstruct and cannot do so without vacant possession
7. Landlord intends to occupy the premises
246
What does s3 LTA do in regards to improvements?
A business tenant can make improvements regardless of any prohibition in the lease.
A notice must be served on the landlord and they have 3 months to object.
247
If s3 is utilised in regards to improvements, what is the implication at the end of the tenancy?
If the improvement adds to the vs,he of the letting, the tenant can claim compensation
248
Under which s30 grounds does a landlord have to show that a tenant ought not to be granted a new tenancy?
Failure to repair, persistent delay in paying rent, substantial breach, tenant is an underletting of part
249
If the landlord relies on ground (g) (intends to occupy) how long must they have held their interest for?
5 years before end of current tenancy
250
If the court orders a new lease, when will the term commence?
3 weeks and 4 days after court order.
251
How long does the landlord have to appeal a new lease granted by court order?
4 weeks
252
What if the parties do not like the new tenancy granted by the court?
Tenant can apply for revocation. Landlord can only appeal
253
When is a tenant entitled to compensation for the landlord ending the lease?
Any no fault ground (e), (f) and (g). Underletting, intends to demolish, intends to occupy
254
What happens if there is an agreement between landlord and tenant restricting compensation for termination on no fault grounds?
The agreement is void if the tenant has been the same (or in same business) for 5+ years
255
What do the SCs and SCPCs say In regards to repair covenants on assignment?
They are excluded but must be expressly referred to in the TR1 panel 9 and 11
256
Under the SCs how is a deposit held?
As an agent if UK residential purchaser
257
Under the SCPCs how is a deposit held?
As a stakeholder
258
If the title of the unregistered land is only good what will be required?
A special condition to require deduction of title.
259
In unregistered land, what can an assignee demand proof of?
Assignments and leases held within the last 15 years
260
Who is to engross the lease and when is it to be provided?
Landlord. 5 working days before completion
261
When should there be the deduction of title?
If lease is more than 7 years
262
If there is an AFL and the lease is for more than 7 years, what do the SCs allow for?
Deduction of title allows for registration of absolute title
263
When is VAT compulsory on purchase?
New buildings of less than 3 years
264
What conditions allow for inclusion of VAT?
SC 1.4
SCPC special condition
265
What should be included in the conditions if the seller is concerned that the tax regime may change?
SCPC part 2 A1
266
When must LTT be paid by?
30 days of completion
267
When must a mortgage be registered by?
Within the OS1 period and within 21 days of completion, failure to do so renders it void against liquidators.
268
If SDLT is payable on assignment, what is it due on?
Purchase price, not including rent.
269
When must assignment be registered?
If there is 7+ years left on the term of a lease, it must be registered within 2 months, or it will be void in respect to legal estate.
270
What happens under the SCs if completion is delayed?
Buyer and seller can be asked to pay compensation
271
What happens if completion is delayed under SCPCs?
Only buyer can be asked to pay compensation
272
How long does a completion notice give for completion?
10 working days. If fail to complete, rescission.
273
What if the buyer reasonably objects to a condition of assignment under SCs?
They may rescind.
274
If there is delayed completion when will next completion be deemed?
20 working days
275
Is time of the essence for completion?
Not until a notice to complete is served.
276
If there is undue influence when taking out a mortgage what happens to the mortgage?
It is voidable
277
Does a seller pay compensations under SCPCs?
No
278
When can you have an implied easement?
When it is created on sale of a part
279
If there is a breach by the buyer what is the seller entitled to?
Damages, but would be less any compensation obtained under the SCPCs
280
When must part of a loan be paid to HMRC and how much? What are the exceptions?
If it is a close company or associate loan. 32.5%.
Under 15k, or it’s a money lending business
281
What role does a solicitor pay if money is paid into an account for which they hold jointly with another executor?
They have limited obligations under the SRA but they must still safeguard the money.
282
If a company is investing in brand new machinery, what percentage of deduction do they receive from corporation tax, and what are the qualifiers for this relief?
130%.
Purchase contract must be after 31 march 2021.
Expenditure must be incurred between 01 April 2021 and 31 march 2023
283
What has a reduced VAT RATE OF 5%?
Mobility aids, fuel (domestic), energy-saving measures, renovation and alteration, child car seats
284
What is exempt from VAT?
Land, insurance, post, finance services, health services, burials/cremation
285
What is zero rated for VAT?
Books, transport, food, water, international services
286
In Accounts, where does Trading Profit show?
Profit and Loss Account
287
When a bill is not yet paid, what is it?
Accrual
288
How do you record a payment out of petty cash?
CR Petty Cash account
DR client ledger
289
How do you record a bad debt?
CR client ledger (business)
DR bad debts account
290
When is VAT RELIEF available for a bad debt?
6 months from due date
291
How do you record a transaction from the bank to petty cash?
CR Cash Account
DR petty cash account
292
If you cannot track a client at the end of a retainer to pay it back, what must you do?
If the credit is under £500, pay it to charity. If over, seek permission from SRA to do so.
293
How often must you obtain client account bank statements?
Every 5 weeks
294
What are the 4 DRs?
Expense incurred, asset acquired, liability reduced, cash gained
295
What are the 4 CRs?
Income earned, asset disposed, liability incurred, cash paid
296
If VAT is chargeable for rent and the premium paid, is SDLT charged on the VAT inclusive sum? Or exclusive sum?
VAT inclusive sum
297
When must a VAT invoice be provided (timing)?
Within 30 days of supply
298
When must a tax return be submitted? (Timing)
1 month from quarter end.
299
Which property searches are subject to VAT?
CON29 and con290.
300
When is an Accountant Report not required?
If all money received was legal aid, or balance on accounts does not exceed an average of £10k (max £250k at any one point)
301
How do you record a cheque received from a client for payment of a bill?
CR client ledger
DR cash account
Business sections
302
How do you record billing a client?
CR profit costs account
DR client account
303
How do you record a client paying a bill?
CR cash account
DR loss of debt
304
How do you record cash being received from a client on account of costs?
CR cash account
DR client account
305
How do you record an inter client transfer?
CR transferee
DR transferor
306
When can a CFA not be used?
Family and criminal proceedings
307
What is the cap on success fee for a CFA?
100%. 25% for PI
308
Who can enter into a CFA other than the solicitor? Who can’t?
Counsel can. Experts can’t.
309
Who is a DBA available for?
Usually only claimants
310
What is the cap on DBA success fee?
50%.
25% for PI.
35z for employment.
311
What do caps on fee agreements not apply to?
Appeals
312
If client is receiving legal aid, who does the solicitor owe the greater duty to?
LAA. Duty to them overrides duty of confidentiality to client.
313
What is LAA not available for?
Business matters inc sole traders
314
When is Legal Aid available?
If the prospect of success is at least 50%.
The client must have less than £8k capital. (£3k if immigration case)
Gross monthly income must be less than £2657
Disposable income must be less than £733
Slightly different if they have more than 5 children.
315
When may a contribution have to be made to the criminal courts even if the c,isn’t is in receipt of legal aid?
If capital is over £3k, or disposable income is more than £315
316
What level of adjusted income means that the client is eligible in criminal courts for legal aid?
Under £12, 475
317
What level of income means that a full means test is required if the client is in receipt of legal aid (crim courts)?
From £12,475 up to £22,325
If crown court, anything past £22,325
318
When is the client not eligible for legal aid in the magistrates court?
Adjusted income of over £22,325
319
When will a client have to contribute to costs even if they have legal aid for a trial in the crown court?
Disposable income of £3,398 - 37, 500
320
When must IHT be paid?
6 months from end of month of death
321
How many instalments are available for the instalment option for IHT?
10
322
What is eligible for the instalment option of IHT?
Land, business, shares with control of the company, unquoted shares without control if they are worth 10% of the capital and £20k in value
HMRC satisfied that IHT cannot be paid without undue hardship, or the IHT amounts to 20% of all IHT payable on the estate
323
What missed IHT payments accrue interest monthly.
?
Agricultural land, business or shares
Other land accrues interest annually
324
If a transferee if a PET is liable for IHT and does not pay, when do the PRs become liable?
12 months from end of month of death
325
When is IHT due on an LCT?
If the LCT was between 05 Apr and 01 Oct, due on 30th April of the following year
Any other time, due 6 months after end of month of LCT
326
How long must you have been admitted to the Roll for before you can be a freelance solicitor?
3 years
327
How much PII must a law firm hold?
£3m for recognised bodies (llps etc). £2m for others (sole practitioners etc)
328
If your PII runs out as a solicitor when must you inform the SRA?
When PII ceases. Terms and conditions will extend the PII for 90 days
329
When must you cease to take on new work after your PII ends?
30 days after cessation
330
When must you cease practising after your PII runs out?
90 days after cessation
331
How do you record money being paid into the client account? Eg client sends cheque on account of costs
CR client ledger
DR client cash
332
How do you record payment out of the client account?
CR client cash account
DR client ledge
333
How do you record a payment out of the business account? Eg if there is not enough for a disbursement in the client account?
DR business account ledger business
CR cash account business
334
How do you record payment into the business account? Eg payment for disbursements
CR business account
DR cash account business
335
How do you record a dishonoured cheque?
The following will be on account for the cheque being paid in:
CR client ledger
DR cash account client
When dishonoured, need to reverse
DR client ledger
CR cash account client
336
How do you record VAT for it being charged in a bill?
DR business ledger with the vat figure
CR vat ledger
337
How do you record vat on abatement of costs?
Reduce amount of profit costs owed by the client:
CR business ledger costs figure only
DR profits costs with costs figure only
Reduce amount of Vat
CR business ledger with vat amount
DR vat account with vat amount
338
When must a linked purchase be authorised by the shareholders and what resolution must be passed?
Purchase must be £100k or more OR £5k at at least 10% of client net asset value
Ordinary resolution
339
What is a substantial property transaction and what resolution is required to authorise it?
Purchase from a connected person (20%+ of shares or director etc), non cash asset of substantial value (£5k or 10% net asset value)
340
What are the exceptions to requiring shareholder authorisation for a substantial property transaction?
Not a UK company, in the capacity of a shareholder, is a holding company or subsidiary, in administration, or entitled to do so under a service contract
341
When do personal loans to directors require an ordinary resolution?
If the loan is not for a business purpose, unless the loan is under £10k in value.
342
What MA gives the directors authority to entire into loans and securities?
MA3, director authority
343
What MA means that directors can delegate their powers?
MA5
344
What MA revives the directors power to hold BMs on reasonable notice?
MA9
345
What MA states that quorum is 2?
MA11
346
What MA states that a director cannot count in quorum if they are interested in the transaction?
MA14
347
What MA states that the directors pass decisions by simple majority?
MA7
348
What MA states that a written resolution must be unanimous amongst board members?
MA8
349
What MA appoints a chairperson? Which one gives them a casting vote?
MA12, MA13
350
Which MA gives the chairperson the power to chair GMs?
MA 39
351
What does MA18 states about ceasing to be a director?
If they are under a bankruptcy order or a doctor declares them mentally unfit to hold position then they cease to be a director
352
What does MA42 states about shareholder voting? And MA44?
Show of hands. Allows poll vote
353
What does MA30 state about a dividends?
They are at the directors’ recommendation
354
What MA gives power to appoint directors?
MA17
355
What does form AR01 do?
Change accounting reference date
356
What does MA19 state?
Board can decide salary, services and benefits
357
How long can a director be disqualified for?
2-15 years
358
What happens if a partner in a partnership dies?
The partnership dissolves unless the other partners buy out the deceased’s share
359
Can the board ratify the failure to declare interest in a transaction?
No, but can ratify the actual transaction.
360
How long must meeting minutes be kept for?
10 years
361
What is the long stop date to register the transfer of shares?
2 months
362
What is an executive director?
They have a service contract
363
What happens if a long term director service agreement is entered into without shareholder approval?
The guaranteed term element is void
364
When must a director appointment be filed at companies house by?
14 days from appointment
365
How long must a director service contract be available at the registered office for?
Term plus 1 year
366
When can shareholders inspect the director service contract?
Within days of request
367
When can a Stat Demand be issued and how long must you wait before action?
£750 outstanding. Wait e3 weeks from issue
368
Who can demand a poll vote?
1. Chairperson
2. Directors
3. 2+ shareholders with the right to vote
4. Shareholder with 10% voting rights
369
Name 5 things an OR can be used for
1. Ratification
2. Director service contracts over 2 years term
3. Appoint or remove auditor (special notice required)
4. Substantial property transactions
5. Removal of director (special notice)
370
Is an OR required for a director contract of over 2 years that has a termination at will clause?
No
371
What is the notice period for a GM?
14 clear days
If by post or email, add on 48 hours for delivery
372
What are the exceptions to shareholders being able to vote if they have an interest in the transaction?
1. Resolution to buy back some or all of their shares
2. Ratification of their breach if they are a director
Their vote will not count if it is their vote that makes the difference
373
When can a short notice GM be held?
Majority of shareholders must consent and they must hold at least 90% of the voting shares
374
What is special notice?
Notice of a Gm circulated 28 days before.
Ad in newspaper 14 days before the relevant OR
375
Name two things a SR is required for
Changing name . Changing articles
376
What three decisions can be made at a board meeting?
Change of registered address, account reference date change, appointing chair. Sometimes appointing directors
377
When must amended articles be filed by?
15 days from the articles taking effect
378
How long does the company have to file the SR for changing articles?
15 days from SR
379
When can a written resolution be called by shareholders?
5% of shareholding with voting rights.
Articles can increase this number but cannot decrease it
380
When is the deadline for voting in a written resolution?
28 days from circulation
381
Are written resolutions one vote per share or simple majority?
One vote per share like a poll
382
Who must make the representation for apparent authority to have been present?
The principle NOT the agent
E.g. this can be made if the person is in charge and selling what the company usually sells.
383
What percentage of shareholders are required to demand a Gm?
5% of paid up capital holding voting rights
384
If the shareholders call a GM how long do the directors have to call the GM for them?
21 days of request
385
When must the GM take place once directors have agreed to the shareholder request to call a GM?
Within 28 days of directors agreeing
386
What is the maximum amount of time that can be between the shareholders requesting a Gm be held and the GM itself?
7 weeks
387
What are the 4 requirements for apparent authority to be present?
1. Relates to business of kind carried out by company
2. Expected kind of business
3. Other party is unaware of the lack of authority
4. Other party is dealing with someone they believe to be a partner
388
If an LLP gets reduced to 1 member, what happens to the liabilities?
If there is still only 1 partner after 6 months, they become solely liable for the LLP’s debts
389
When must accounts be filed by (normal company)? What if it is a plc? What if the company is newly incorporated?
9 months from end of accounting period. 6 months if plc. 3 months if newly incorporated
390
Who appoints the first auditor? Who appoints subsequent auditors?
Directors first. After shareholders appoint by OR. They are automatically reappointed every year unless they are the first auditor or the articles did apply this,
391
What votes in a partnership must be unanimous instead of majority?
1. Hanging nature of business
2. Introducing a new partner
3. Changing the partnership agreement
4. Expulsion of a partner
392
What can a bankrupt partner not act in?
Winding up
393
What is required if a partner is leaving a partnership?
Direct notification, notification in London gazette, removal from letterheads etc.
It required if they are bankrupt or dead.
394
What companies do not need to produce a directors report to go with the accounts?
Small companies and micro entities
395
What is a small company?
Balance sheet is less than 5.1m.
Turnover is less than 10.1m
Employees are less than 50
396
What is a micro entity?
Balance sheet is less than 316k
Turnover is less than 632k
Less than 10 employees
397
What must the limited liability partner in a general partnership not do?
Control or manage the company, or have the power to make binding decisions.
They also cannot remove their contribution to the LP
398
What share capital is required for a plc and how much must be paid up?
50k.
All premium capital paid and at least a quarter of the nominal shares
399
What resolutions are required to re register as a plc and what form is required?
Three SRs - one to register as plc, one to alter articles and one to alter name.
RR01
400
What. Just be filed at companies house to re register as a plc?
SRs, rr01, statement of compliance, fee, articles, balance sheet, auditor documents
401
What resolution does a change to a trading name require?
Only board decision
402
Hen does a new company name take effect?
When new certificate of incorporation is issued
403
What form is required to change the accounting reference date? What decision to change? And what can the period not be extended beyond?
Aa01, board decision, cannot be extended beyond 18 months
404
How long does an LLP have to file appointment or departure of partners at companies house?
14 days.
Llap91, lltm01
405
What must be filed on incorporation?
In01, memo of association, possibly articles if amended, fee, pscs
406
When does a company come into existence?
When certificate of incorporation is issued.
407
What is required to change registered address?
Board decision.
14 days from the change, notices are still considered served if they go to the old address
408
When is a cs01 to be filed?
Annual confirmation statement. Within 14 days of initial incorporation annually.
409
What is a PSC?
Holds more than 25% shares or voting rights OR has power to remove or appoint majority directors
410
What must be filed for a name change of a company?
Nm01 and fee and sr
411
What is a defence to a challenge to a transaction at undervalue?
To defend the reputation of the company and to allow trade to continue
412
If there is a transaction at an undervalue what is the rebuttable presumption?
That if it is to a connected person, there is the presumption of insolvency.
413
Who must approve a CVA and in what percentages?
75% value in creditors and 50% non connected creditors
414
Who can bring a wrongful trading claim on insolvency?
Liquidator or administrator
415
When can a CVA affect a secured creditor?
Only with its consent.
They cannot vote in CVA unless it is to do with their part of security.
416
When must a bankrupt person disclose their bankruptcy when taking out a loan?
If loan is over £500
417
When can a stat demand be applied for in regards to bankrupt individuals?
If £750 is outstanding. Must wait 3 weeks before action
418
When could there be a restriction on the share capital of a company? What would be required to remove this cap?
If incorporated before 01 October 2009.
An OR would be required to remove this cap. (An SR if it is in the articles)
419
What needs to be held in order to register transfer of shares?
Board meeting - they must agree to the transfer. if not can block it.
420
When does s550 allow directors to allot shares? What is the exception?
If there is only one class of shares in existence.
If they have Table A articles, would need to activate s550 by OR and file this at companies house
421
What gives power to allot shares if there is more than one class or the company is a plc?
S551 OR.
Allotment must occur within 5 years of this resolution.
422
What is the minimum time requirement allowed for accepting pre emption shares?
At least 14 days
423
What is required to disapply preemption rights? How long to file at ch?
SR. 15 days.
424
What does MA21 require in relation to pre emption shares?
All shares fully paid
425
When must sh01 or psc01 be sent to companies house?
Within 1 month of allotment
426
When must a new shareholder be registered by and when must they receive their share certificate?
2 months from allotment
427
What does ma26 give the directors discretion to do?
Refuse to register transfer of shares
428
When is stamp duty payable on transfer of shares?
If over £1k in value. Stamp duty is 0.5%.
429
What does ma27 entitle PRs or trustees to?
Dividends even though they are not shareholders
430
What resolution is required to buyback shares using income? What is it is using capital?
OR for income. SR for capital
An OR will still be required in the case of an SR to approve the buyback contract
431
How long is the deadline to file cancellation of shares?
28 days from cancellation
432
To approve buyback of shares from capital what statement is required and when by?
Statement of solvency 1 week before Gm.
433
If a buyback out of capital is approved, what must be published and when is the deadline for publishing?
Ad in the London gazette. 7 days after notice of Gm passing sr
434
How long do creditors have from an sr agreeing buyback of shares from capital to apply for a prevention order?
5 weeks
435
When will the buyback out of capital of shares proceed?
5-7 weeks from the sr
436
What is required for a minority shareholder to bring a derivative claim?
Permission from court. Unlikely to be granted if it appears that a majority of shareholders will ratify a decision.
437
How do you work out how much a preferential dividend will be?
(Preferential dividend percentage x nominal value of share) / number of shares
438
Who can enter into debentures and floating charges?
Only companies and llps
439
When must a charge be registered at ch by and what is required?
Form mr01, the copy of the charge and the fee
440
What happens if a fixed charge over land is not registered at the land registry and someone buys that land?
Regardless of knowledge, a buyer takes the land free of charge
441
How do you work out the amount a creditor will be owed on insolvency?
Assets / liabilities = amount per pound owed (appo)
Appo x amount creditor owed
442
What resolutions are required to start an MVL?
Sr to start. OR to appoint liquidator
443
What is a debt relief order?
20 business day moratorium
444
When can a debt relief order be obtained? Bankruptcy
Not if unsecured liabilities over £20k, not if total gross assets exceed £1k, not if they have a car worth more than £1k, not if their disposable income is more than £50 pm, or if they have had a dro in the last 6 years
445
What is debt respite order?
60 days breathing space if mental health treatment of 30+ days has been ordered
446
What is the order of priority of charges?
Fixed charge, expenses of liquidation, preferential debts (employees, paye etc), floating charges, unsecured
447
In insolvency, how much wage can employees be given?
Max £800. Employee wages for the last 4 months
448
What is the ring fence for unsecured creditors and floating charges?
50% of first £10k received from property subject to a floating charge.
20% if remaining money
Limit £600k
(Unless company formed after 1 April 2020 when it is £800k)
449
Who must approve administration proposals?
Majority in value of present and voting creditors. Provided that not more than 50% of this majority are unconnected creditors.
450
What happens to director powers if they go into administration?
Powers cease but they remain in office.
451
What two items do administrators require court permission to deal with?
1. Property subject to a fixed charge
2. Paying unsecured creditors
452
Who can appoint a receiver? What is required and what is the notice?
Secured creditors. SR required. 7 days to inform creditors
453
When compulsory liquidation is entered into what happens to the directors?
They are terminated
454
When is a floating charge invalid?
If there has been no fresh consideration, was within 2 years before insolvency if to a connected person, 12 months if unconnected.
If to a connected person, no need to show insolvency.
If to unconnected, will have to show that they were insolvent at time or became insolvent due to the charge.
455
When can a preferential transaction be challenged?
Within 2 years if to a connected person, 6 months if unconnected.
No presumption of insolvency - this must be proven and it must be shown that there was a desire to prefer
456
When can a transaction at an undervalue be set aside?
If made in the 2 years before insolvency. Must have been insolvent at time or due to transaction. There is the presumption of insolvency if the transaction was to a connected person.
457
What is the defence to a transaction at an undervalue being challenged?
It was in good faith with the view to carry on the business and there were reasonable grounds to believe it would benefit the company.
458
When can extortionate or exorbitant transactions be challenged?
Within 3 years
459
What is the time limit for challenging fraudulent transactions?
None
460
Who can appoint an administrator by an out of court procedure?
On,y a floating charge holder who benefits from a charge over the whole or substantially the whole of the business assets.
461
What damage is not covered by 1984 OLA?
Property damage
462
What can you not claim for under CPA?
Defective product, business property, personal property under the value of £275
463
To be a primary victim for psychological damage only, what must occur?
Sudden shock, foreseeable risk of physical injury. Psychiatric injury does not need to be foreseeable.
464
What is required to be a secondary victim for psychiatric shock?
Close tie of love and affection, foreseeable psychiatric injury
465
What can be claimed if a fee has not been negotiated for releasing a seller from a covenant?
Damages for loss of opportunity
466
What can someone not do if they have not complained about an item within a reasonable time under SGA?
Reject the goods
467
Under the SGA which two terms are implied conditions?
Fitness for purpose and quality
468
Under the SGSA what are these terms considered and what do they allow for breach?
Innominate terms. Always gives damages and may allow termination if the breach has substantially deprived the buyer of the benefit of the contract.
469
What two things are required for there to be a negligent misstatement?
Assumption of responsibility and reasonable reliance
470
What are tenders considered?
Implied offer of a unilateral contract. Tenders must be considered and if they are not it is a breach of a unilateral contract.
471
What is payment on delivery after duress considered?
Affirmation
472
What Cannot be claimed for under private nuisance?
PI
473
Who can claim for private nuisance?
Occupier with exclusive possession.
474
When can landlords claim for private nuisance?
If permanent damage is being done to the property
475
How long does a client have to challenge a solicitor’s bill?
1 month from date of delivery
476
How long does the client have to apply to court to challenge a bill from a solicitor?
12 months
477
What evidence is not admissible in civil claims?
Opinion
478
Who must the expert report be addressed to and is permission required to use an expert?
The court. Yes.
479
Where must a claim for personal injury damages be started?
Ccmcc if the claim is started in the county court.
480
When does the late payment of commercial debts interest act apply?
To debt claims
481
When does the daily rate for interest need to be included on the claim form?
If it is a claim for specified damages.
482
Even if a claim exceeds £100k when could it still be issued in the county courts?
If it is straightforward
483
Is ATE recoverable from the losing party?
No.
484
How do you dispute court jurisdiction?
State so on acknowledgment of service form and then Make a challenge within 14 days of filing.
485
What does CPR 19 cover? Who can apply?
Who do you need permission from?
In what situation would you require court permission?
Adding or substituting parties.
Existing party or someone who wants to be a party.
If adding or substituting a claimant, will need permission from all parties.
If the claim form is served.
486
If cpr 19 is utilised within the limitation period, an you add and substitute parties?
What if it is out of the limitation period?
Yes.
If the limitation period was current when proceeding were started then you can add or substitute AND ONLY IF a party was named by mistake, the new party is required to successfully continue the claim, or the original party is dead or bankrupt.
487
How long do you have to pay a default judgement? What form is used?
14 days. N244
488
What are the two grounds for setting aside a default judgement?
1. Mandatory - the judgement was wrongly entered
2. Discretionary - there is a real prospect of defence
489
When should a legal representative’s costs be marked as to be assessed in the claim form?
In the high court, unspecified claim
490
How do you state recovery expected for a high court claim form?
Claimant expects to receive more than £100k.
491
How long do you have to serve a claim form outside of jurisdiction?
6 months from receipt of claim form
492
What must you serve to the courts to start a claim?
Form n1, fee, particulars of claim, annexures
493
What happens to the limitation period when the claim form is received by the courts?
It stops running.
494
How do you fill out a claim for unspecified damages on the claim form for the crown court?
The claimants expects to receive
1. Not more than £10k
2. More than £10k but not more than £25k
3. more than 25k
4. Cannot expect how much to recover
495
When claiming unspecified damages what three things are disregarded in the calculation for the claim form?
1. Interest
2. Contributory negligence
3. Counterclaims
496
In a civil case when. Just a witness summons be served by?
7 days before trial
497
When claiming for personal injury on a claim form, what two ways can you claim?
Damages for pain, suffering and loss of amenity is
1. More than £1k
2. Not more than £1k
498
How long do you have to serve the claim form on the other party?
4 months
499
What is the indisputable presumption for the service of a claim form?
It is served on the second business day from service
500
When must particulars be served before (time of day) and when does this apply?
4:30.
If by personal service, fax or email
501
When are particulars deemed served by (time period) after posting or by dx?
2nd business day, provided the postal day was a business day
502
How long do you have to serve the particulars of claim if separate to the claim form?
14 days after service of claim form but no later than 4 months from issue of claim form.
503
What is a small claims claim up to in value?
£10k
504
What is a fast track claim up to in value?
£25k
505
What is a multi track claim up to in value?
Over £25k
506
When must a claim be served in the county court?
If it is under £100k
507
Can a claim over £100k be served in the county court?
Yes if simple.
508
When must a PI claim be served in the high court?
If claim is over £50k
509
What claims are sent to ccmcc?
All money only claims
510
What costs can be claimed for if the claim is in small claims?
Fixed costs only - issuing the claim and travel expenses. No legal fees.
511
When are legal representative costs fixed?
In specified damages claims
512
What is the pre action protocol for professional negligence regarding insurers?
Must notify your insurer on receipt of claim form and issue response of notification of insurer within 21 days
513
How long do you have to respond to a letter with acknowledgement that insurers have been notified?
21 days
514
How long do you have to fully response to a letter of claim?
3 months
515
How long do you have to negotiate settlement for professional negligence if the professional accepts claim in letter of settlement or response?
6 months
516
How long does the defence have to respond to practice directions?
14 days for a simple case. 3 months for a complex case.
517
How long does a debtor have to respond to a letter of claim if the claim is for a debt (not business to business)?
30 days
518
When an offer states ‘we need to hear from you by x date’ etc does the postal rule apply?
Likely not
519
What is the limitation period for contract and tort?
6 years from day after cause of action.
Contract: from time of breach
Tort: from damage occurring
520
What is the limitation period for personal injury?
3 years from date of cause of action or knowledge.
If the claimant was under 18 when the PI occurred, limitation period would not start until they hit 18.
521
If the cause of action is latent, what are the limitation periods?
6 years from date of cause of action
3 years from date of knowledge of damage
Maximum 15 years after the date of the negligence act or omission
522
How long do you have to file a defence after deemed service and on what form?
14 days unless acknowledgement is served at what point it is 28 days.
Form N9
523
If a road traffic accident is on or after 31 may 2021, what is a PI claim limited to and what track is it on?
£5k for loss of amenity, suffering and pain.
Small claims
524
What is the basis for standard costs?
Proportionate.
Resolved in favour of the paying party.
Reasonable and reasonably incurred.
525
What is the basis for indemnity costs?
Reasonable and reasonably incurred.
Resolved in favour of receding party.
No proportionality test.
526
For small claims what is the limit on PI?
£5k
527
How can you use an expert in small claims?
With court permission only
528
How long is a fast track trial usually?
1 day
529
How are small claims costs assessed?
Disbursements only will be paid. No legal fees
530
How are fast track costs assessed?
Summarily. Advocate fees are fixed.
531
How are multi track costs assessed?
Detailed line by line assessment
532
What are the fast track advocate costs?
Fixed.
If value of claim is £3k, £485.
If up to £10k, £690
If up to 15k, £1035
If over 15k, £1650
533
What is the period of acceptance for a part 36 offer?
21 days but basically open ended unless expressly withdrawn.
534
If the claimant’s part 36 offer is accepted, what costs are they entitled to?
Costs up to date of notice of acceptance
535
If a claimant accepts a part 36 offer late, what costs are they entitled to?
Costs up to expiry of offer.
The claimant then pays for the defendant’s costs up until date of acceptance.
536
If a defendant accepts a part 36 offer late, what costs must they pay?
Claimant’s costs up until date of acceptance.
537
If the claimant made a part 36 offer than was rejected and is then awarded what was at least as advantageous as they offered by the courts, what penalties are imposed on the defendant?
Additional 10% of damages up to £500k. 5% thereafter.
Capped at £75k.
Enhanced interest of 10% above base rate from day 22 of the offer.
Costs on an indemnity basis
538
If the defendant makes a part 36 offer and this is rejected by the claimant, the claimant then wins at court with an offer better than what the defendant offered, what happens?
There are no penalties or effects.
539
If the defendant made a part 36 offer than the claimant rejected and the claimant then won but it was less than what the defendant offered, what happens?
The defendant will pays the claimant’s costs on a standard basis until day 21 of the part 36 offer.
The claimant then pays the defendant’s costs on a standard basis from day 22 with interest.
540
What if the claimant loses after a part 36 offer form the defendant?
The claimants must pay interest in defendant’s costs from day 22
541
How long is there to put questions to the experts after exchange of reports?
28 days
542
If a witness summons is not served within 7 days of the witness’s appearance at court, what will be required to serve it?
Court permission
543
When must checklists be filed by?
No later than 8 weeks before trial
544
What will the court do if neither party files their checklists?
Extend the deadline by 7 days
545
If one party does not issue their checklist in time, what will the courts do?
Order a hearing
546
If in the fast track, when must parties file and serve statement of costs by?
At least 2 days before trial
24 hours if interim hearing
547
In the multi track, when must a notice of commencement for payment of the judgement be served by?
Within 3 months of the judgement. Serve on paying party
548
How long does the laying party have to dispute a notice of commencement for costs?
How long does the payee have to respond?
21 days. Also 21 days.
549
When must an assessment hearing be filed for if there is a dispute regarding the notice of commencement?
3 months from reply.
550
How long is there to issue a civil appeal to the county or high courts from judgement? What about COA or supreme courts?
21 days.
28 days.
551
What is the order of ranking of judges for appeals?
District judge of the cc.
Circuit judge of the cc.
District judge of the hc.
Circuit High court judge.
High court judge.
Court of appeal.
552
When will courts undertake a provisional assessment of costs?
If under £75k costs.
553
How ,long does a party have to appeal a provisional assessment of costs?
21 days
554
What happens if a party appeals a provisional costs, and they fail to receive adjustment of at least 20% in their favour?
They will have to pay costs
555
What can enforcement officers use to enter commercial premises?
Reasonable force. Cannot be used for residential.
556
What cannot be seized by enforcement officers?
Items belonging to another, necessary items, work/study tools up to an aggregate of £1350
557
What is required from the county court if costs of £600 or less need to be enforced?
A warrant
558
What is required if costs if £600 to £5k needs to be enforced?
County court warrant or high court writ
559
What is required from the high court if over £5k in costs needs to be enforced?
A writ
560
What does part 73 allow for in regards to land?
Charging order can be made over jointly owned land.
561
When must the ICO be served one the debtor by?
Within 21 days of approval from court
562
How long does a debtor have to appeal an ICO.
14 days to request a review
563
How long does a debtor have to object to an FCO?
28 days from service of ICO
564
What court can issue an attachment of earnings order?
County court only
565
If a judgement is made in the commonwealth, when must the judgement be registered by?
12 months for high court
6 years for county
566
If it is a money claim in the county court, and a party fails to file their questionnaire, how long will the court give the defaulting party to serve their questionnaire?
7 days. If not, claim struck out
567
In all cases but a money claim in the county court, what will happen if a party fails to file their questionnaire on time?
Court will make an order as it sees fit.
568
When must costs budgets and questionnaires be filed by?
21 days before cmc.
569
When must a budget discussion report be filed?
7 days before cmc, unless they are a litigant in person where this is not required.
570
When can a statement of case be struck out?
No reasonable grounds for bringing the case, abuse of process or failure to comply with a rule or procedure
571
When must the trial bundle be filed by? How big can it be?
7 - 3 days before trial.
Max 250 pages
572
In part 2 disclosure, how should documents be described?
Generally, not identifiable
573
What can deadlines not be modified for?
CMC, checklist submission, pre trial reviews, trial dates
574
In multi track who prepares the case summary?
Claimant but should be agreed between parties
575
When should appropriate directions be submitted before the cmc?
7 days before. If they are approved, the cmc will be vacated
576
What claims are excluded form cost management on the multi track?
£10m or more
577
When must the costs budget be filed with the questionnaire?
If claims are under £50k
578
When must costs budgets be filed for claims over 50k?
21 days before cmc
579
When must small claims disclosure be?
14 days before final hearing
580
What disclosure is required on fast track?
Standard n265 disclosure
581
In the multi track, when must parties file their disclosure reports and when must the seek to agree disclosure?
14 days before cmc.
7 days before cmc.
582
Can a legal representative sign the disclosure statement on behalf of their client?
No
583
What is form n244 used for?
Request for disclosure
584
When will a summary judgement be entered?
No real prospect of success or no other compelling reason as to why it should be heard.
585
When is court permission required for summary judgement?
If judgement required before service of defence or acknowledgment
586
How much notice must be given for a summary hearing?
14 days before hearing
587
How long is there for the respondent to file and serve written evidence before a summary judgement hearing? What about the applicant in response to this?
Must serve 7 or more days before hearing to serve written evidence. 3 days or more before hearing the applicant can serve further evidence in response.
588
What is required for a freezing or search order to be issued? What court will issue?
Affidavit evidence.
High court
589
When can an interim payment be applied for? (Time)
At least 14 days before hearing, and after the time for acknowledgement of service is over
590
When can an interim payment be applied for? (Reasons)
The other party has admitted liability, or the claimant has obtained judgement for damages, or the court is satisfied that the claimant will receive substantial costs at court.
591
How much will an interim payment be?
Reasonable proportion of likely amount of final costs and must consider contributory negligence and counterclaims.
592
If it is alleged that a claim is time barred under the limitation act, who has the burden of proof?
The claimant
593
What is a pet 20 claim?
Add a third party to the claim
594
If amendments to the SOC are required when they have already been filed and served, what is required?
Must have written consent of all parties, or permission of the court
595
When will the court allow amendments to the SOC after the expiry of the limitation period?
1. Add or substitute new claim if facts are substantially similar
2. Correct a genuine mistake as to the name of a party
3. Alter the capacity of a party
596
What form is required for an interim application?
N244
Draft order must be attached
597
When must an interim application be served by?
3 clear days before hearing (don’t forget the 48 hours of deemed service)
598
How long does the respondent have to reply to an interim application?
7 days of service
599
How long to pay costs?
14 days
600
When will QOCS kick in?
If court gives permission and backed by insurance.
601
How long does a defendant have to respond to a letter before claim?
3 months
602
What must a letter before claim be?
A genuine attempt to settle
603
What must a claim form be served with? If not, how ,long does the claimant have to serve these on the defendant?
Particulars of claim and a response pack. 14 days.
604
When must a certificate of service of claim form be filed?
21 days of service of the particulars of claim if the client serves it themselves, unless all parties have already submitted an acknowledgement.
605
What are statements of truth included in?
Statement of case, response, application notice, notice of objections.
Witness statement.
Costs budget
606
What is the placing for interest on a specified claim? And unspecified? In the particulars of claim
State total rate and daily rate.
State a general pleading of interest the courts sees fit
607
When must a costs budget be prepared in the form of precedent H?
If costs of the party are no more than 25k or the total claim is less than £50k only first page needs to be submitted.
All pages in other situations.
608
What precedent is used for the budget report?
Precedent R
609
What happens if a party fails to file budgeted costs?
Deemed to have only filed applicable court fees
610
What does a notice of proposed allocation require the parties to do? When is this issued?
1. File and serve on all parties a directions questionnaire
2. File proposed directions for fast track and multi track cases
3. Fix a date for a cmc
4. File budgets costs
After filing of defence
611
When must the directions questionnaire be filed by?
28 days from service if the notice of proposed allocation
612
When must proposed or agreed directions be submitted by?
7 days before cmc
613
When should a disclosure report be filed by? When must a proposal for disclosure be agreed?
14 days before cmc
7 days before cmc
614
When must inspection of documents be allowed?
7 days from service of request to inspect
615
What are the three disclosure sections?
1. Open disclosure
2. Objected disclosure
3. Not in control of these documents
616
When is privilege waived?
If referred to in statement of case, final submitted witness statements, limited waiver
617
What must be submitted with an interim application?
When must these be served by
Application notice, fee, evidence, draft order, Skelton argument for high court
3 clear days before hearing
618
When must a pre trial checklist be sent to parties?
At least 8 weeks before trial.
14 days before specified date for filing in the directions.
619
Is there an automatic right to appeal?
No must have court permission. Appeal to same court or higher court.
620
Are regulations (EU) retained?
No unless acknowledged by a uk or eu court or tribunal pre icpd
621
What is the deadline for claims under eu law?
2 years post icpd
622
How can a trustee delegate their responsibilities and for how long?
By deed with notice to other trustees. Max 12 months
623
What are the three requirements for wheeldon v burrows?
1. Continuous and apparent
2. Enjoyed by landowner when they owned both parts of the property
3. Necessary for the enjoyment of property
624
When must PRs pay pecuniary legacies by?
At end of executor’s year
625
What interest is payable from date of death in regards to legacies?
Satisfaction of a debt, land, money to a minor with no other funds or maintenance to a minor with no other funds.
626
When must an IHT205 be submitted?
For exempt estates prior to 01 Jan 2022
627
If using s19 how many trustees must be left?
2. If not, the retiring trustee must be replaced
628
What section gives trustees power to advance capital?
S32 tlata
629
If capital is to be advanced, who needs to provide permission?
Life beneficiary in writing
630
What is a quistclose trust?
Money lent for a specific purpose
631
When can a lien be asserted?
If a mixed fund asset’s value decreases
632
Who needs to agree to end a trust?
All beneficiaries
633
What is a resulting trust?
Payment towards purchase price of house
634
What is a common intent trust?
Common intent and payment towards mortgage etc,
635
When does the presumption of advancement work?
Parent to child
636
When must agree to allow trustee remuneration?
Other trustees
637
What are the conditions to replace a trustee?
All beneficiaries Sui juris and agree
638
What section gives the power for a beneficiary to remove a trustee?
S19
639
What is a non charitable purpose trust?
Has a purpose for ascertainable beneficiaries with a tangible benefit and the legacy can be used at once
640
What is a charitable trust?
Has a charitable purpose, is exclusively charitable and has sufficient public benefit
641
What happens to a will if the testator did not have capacity?
It is void
642
Who has the burden of proof for proving a will is valid? And if it is challenged?
The person asserting its validity. The challenger.
643
What is required if there is no attestation clause?
An affidavit from witness or someone present at time or evidence of testator’s handwriting.
644
What is the rule in strong v bird?
The trustee becomes executor and trust constitutes
645
When are assets determined?
At date of death
646
When are beneficiaries determined?
At time of will
647
How long must spouse survive testator for to get residue?
28 days
648
If intestate, what does the spouse receive?
All chattels, statutory legacy of £270k and 1/2 residuals. Other half to issue.
649
When can cohabitants claim under IPFD Act?
Living together for 2 years as spouse
650
How long has the court for to cold gifts if they were made for the purpose of avoiding the IFPD act?
6 years
651
How many executors can apply for probate?
4
652
When is the minimum number of PRs required 2?
Selling land, minor or life interest only
653
How many copies of will should be sent to probable registry?
2 a4 copies and the will and codicils
654
Can a PR renounce their role?
Yes but only if they haven’t intermeddled. Remain trustee
655
What form is required to renounce?
PA15
656
When an executor is appointed by the courts who is preferred?
Residuals beneficiary
657
Who is preferred when appointing administrators?
Spouse
658
When canPRs be released from liability for breach of trust?
Express clause in will or the court decides that they acted honestly and ought fairly to be excused
659
What is a caveat and how long does it last?
Freeze on issue of grant. 6 months
660
How long does a caveat or have to submit representations?
8 days
661
What is a citation?
Compels issue of grant
662
How long must the PRs wait before distributing estate to be protected from unknown creditors or beneficiaries? And from IFDP Act?
2 months from ads
6 months
663
What protects PRs from missing beneficiaries?
Benjamin order
664
How long does the hmrc have to request extra IHT information?
60 days from issue of grant
665
If an initially exempt or excepted estate turns out not to be how long do the PRs have to correct this?
6 months
666
Is there relief if assets are sold for less than value at date if death? IHT
What must the loss be?
Yes £ if sold within 12 months of death, relief can be claimed.
£1k or 5% of the valuation
667
What is the time limit to claim for relief due to loss of value of asset? IHT
5 years from death
4 if land
Total time limit is 7 years
668
What is an exempt estate?
Less than £3m gross value and falls within nrb
669
When is a grant of probate not required (estate value)?
Simple estates with no asset over the value if £5k
670
When must an iht400 be submitted by?
12 months from end of month of deathb
671
What is the time limit for reading IHT back into the will?
2 years of death
672
How do you read back IHT?
Must be in writing, signed, state s142 applies and for no consideration
673
What form is required for the direct payment IHT scheme?
Iht423
674
What is an excepted estate from IHT?
Must be in uk, estate cannot be more than £250k, only £100k can be outside uk, does not exceed nrb, pets are under £250k
675
What will a spouse not receive as chattels on intestacy?
Shares, business property, investments
676
How long does a spouse have to exercise their right to the matrimonial home?
12 months from grant
677
How long does a killer spouse (not murder) have to challenge forfeiture?
3 months
678
What is the time limit to deal with a client complaint?
8 weeks
679
Who cannot complain to the LeO?
Companies unless they are micro entities
680
What is the max compensation from the Leo? And the personal penalty?
50k.
2k
681
When can you enforce a non con bill?
1 month from service
682
When can a solicitor not accept a gift? When is it significant?
£500+ consider if significant.
1% of client net asset value, value in future, disproportionate
683
What is the 2 stage test for solicitor dishonesty?
Stage 1 subjective - genuine belief
Stage 2 - objective - ordinary standard
684
How long does a district judge have to have practised for? And circuit?
5 years
10 years and has been a recorder or circuit.
685
What are the 4 jr grounds for procedural impropriety?
Bias, lack of reasons, fair hearing, natural justice
686
What are the conditions for bringing a jr claim?
Sufficient interest against a public body within 3 months and without undue delay.
Hra requires direct victim
687
When was iIPCD?
31 December 2020
688
Are regulations retained law?
No not unless already recognised by uk or eu court or tribunal
689
When can a chief officer request a ban if an assembly?
Trespassing assembly of 20+ people
690
When can meetings be banned?
By local authority with support of SOS
691
Can CGT losses be carried back?
No, only forward
692
Can CGT annual exemption be carried forwards?
No, can only be used in that tax year
693
When does the inequitable defence work for receiving trust money?
Innocent volunteer and funds used to add value to an asset in existence
694
On what grounds would a civil court allow an appeal?
Wrong or unjust due to procedural irregularity
695
Is it the buyer or the seller who is liable to pay compensation under the SCPCs?
Buyer only
696
When is an option for land binding on a buyer?
Registered as a charge
697
To be a misrep the comment must be…
One of fact and not a reasonably held opinion
698
How long does a claimant have to accept or reject a part admission?
14 days from part admission
699
Who does the crown court bind in precedent?
No one. It is only persuasive
700
When should exchange of witness statements take place? Civil
10 weeks from date of allocation
701
If consultant invoice is addressed to the firm, what is this method called and what entry will be on client ledger?
Principal method. Tax exclusive sum
702
What juveniles can be placed into a youth accommodation facility?
12-17. Protect public or prevent further imprisonable offences. Punishable by 14 years by adult defender
703
Who can claim bereavement under fatal accidents act? What about loss of earnings? How long to bring claim? Who can claim for financial dependency? What else can be claimed?
Spouse cp co habit etc
3 years
Wider. Children as well. Brothers sisters etc.
Funeral expenses can be claimed if not claimed under law reform act.
704
What is claimable under law reform misc act for a fatal accident? Deceased estate must claim
Reasonable funeral paid for by estate, destroyed property belonging to spouse, survival loss of amenity
705
What unregulated bodies can provide rights of audience and litigation services?
Not for profit organisation or community interest company
706
When must a loan to a director to meet expenditure on behalf of the company be authorised?
Over 50k
707
When is a claim form deemed served? And other docs?
2nd business day.
Same day if before 4:30 if not, next business day. If not, 2nd business day
708
When is
709
When are Gm notices deemed served?
48 hours from post, email, fax. Then and there if by hand
710
Who brings a breach of duty claim against directors?
Company. Not shareholders
711
Is directors borrowing money rather than creating equity to retain control proper purpose?
No. Is a breach
712
When can a repayment of a debt as a preference be set aside?
6 months unconnected, 2 years connected.
An old friend is not an associate.
713
If an old partner that has retired does not have knowledge that they are being represented on stationery after requesting its destruction, are they liable.
No
714
Are there pre emption rights for non cash consideration?
No
715
Who can apply to have transactions at an undervalue set aside ion bankruptcy?
Trustee in bankruptcy
716
If in an IVA who can petition for bankruptcy if there is a transaction at an undervalue?
Supervisor or creditors
717
What percentage of shares is required for it to be a substantial property transaction to another company?
20%
718
What must be outstanding debt wise for a sole trader to be issued a stat demand?
5k
719
How long does the matrimonial home remain with the interests of the family in bankruptcy?
1st year
720
How are dividends decided and declared.
Decided by board, declared by OR
721
Who are not connected persons for the purposes of transactions to be set aside?
Brothers sisters grandparents
722
How long is there to challenge gifts before the onset of insolvency?
Within 5 years of the bankruptcy petition
723
What 3 classes are very unlikely to be able to consent for volenti to work?
Rescuers, employees, suicide.
724
When may volenti work in driving offences?
If they take they risk even though the danger is so obvious it is like walking off a cliff
725
What are the 3 exceptions to promises to pay less not waiving the obligation of full payment?
Pinnels case (different thing, place or earlier) is good consideration.
Part payment by a 3rd party.
Promissory estoppel.
726
When does estoppel cease?
Reasonable notice or circumstances for estoppel end
727
What do you claim for in reliance interest?
Pre breach losses only
728
What happens if the legacy in a will is crossed out?
If amendment signed by testator and two witnesses, valid.
If amendment invalid and wording is still apparent, will take effect as if not amended.
If obliterated it will not take effect unless there is substitute wording.
729
Must a retiring trustee be replaced?
Yes, by deed if possible as this vest powers in them (apart from shares etc)
730
When does s39 tlata allow for a trustee to retire without being replaced?
1. 2 trustees must be left
2. Must retire by deed
3. Other trustees consent by deed
731
What does s36 tlata allow existing trustees to do?
Replace a trustee
732
When can s19 be used by beneficiaries to force a trustee to retire?
2 or more trustees left. Replaced or remaining trustees consent by deed.
733
In what 3 circumstances can the COA depart from its previous decisions?
1. Previous conflicting decision of its own
2. Decision cannot stand with House of Lords
3. Per incuriam
734
When can pure economic loss be claimed for in tort?
Special relationship
735
Can a bankruptcy restriction undertaking and order be simultaneous?
No. One or other
736
Is land a specified investment for fsma?
No
737
Are eu principles of law retained?
Yes if recognised pre brexit but courts not required to disapply legislation due to conflict with these principles
738
Does tHe COA criminal division hear summary offence appeals?
No only indictable
739
When must costs budgets be filed if the claim exceeds 50k?
21 days before cmc
740
What dates cannot be changed in a civil timeline?
DQ, CMC, pre trial checklist, trial , pre trial review
741
What are the consequences of not filing a DQ?
Money claim in CC: 7 days to comply or struck out automatically
All other cases: court will order as appropriate
742
What are the contents of a special caution?
1. What offence
2. What fact
3. That officer believes was due to participating in offence
4. Adverse inference
5. That is being recorded and will be used as evidence
743
What is unfair prejudice?
Company affairs conducted in an unfairly prejudicial way against member interests, and actual or proposed act = prejudicial
744
What are the two tests for unfair prejudice?
1. Unfairness = objective test by court looking at overall background
2. Prejudice = tangible detriment to be proven by claimant
