FROM SBAQ PRACTICE Flashcards
(22 cards)
Judicial Review
Quashing Order versus Mandatory Order
- The purpose of quashing orders is to set aside unlawful decisions.
- A mandatory order compels public authorities to fulfil their duties.
Business Practice
Definition of a shadow director?
A person whose direction the directors are accustomed to act (s251(1) Companies Act 2006).
Judicial Review
What factors have the court set out which they will consider when deciding whether a pressure group has standing?
- The nature of the alleged breach of duty
- The importance of the issue raised
- The role of the pressure group
- The need to uphold the rule of law and the likely absence of any other responsible challenger
Dispute Resolution
Can the court depart from the agreed or approved budgeted costs?
A party awared its costs on the standard basis at trial in a multi-track case will usually recover the amount of its last approved or agreed cost budget. The court will not depart from the agreed or approved budgeted costs unless there is good reason to do so.
Employment Tribunal
Supreme Court versus European Court of Human Rights
The Supreme Court is the superior court and the ECoHR is only persuasive. UK courts usually follow the judgements of the European Court but do not have to.
Business Practice
What are the minimum executions required in order for a loan agreement to be binding on a company?
The minimum required for a contract is set out in s43 CA 2006. The loan agreement must be signed by the company by a person acting under its authority express or implied.
Judicial Review
Are damages always available in addition to a quashing order?
Damages are not available purely for the infringement of a public law right [R v Knowsley MBC ex p. Maguire]
A V Dicey’s definitive explanation of Parliamentary Supremacy…
Parliament can make or unmake any law whatsoever; and, further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.
Property Practice
Does the buyer’s solicitor have to carry out a company search before exchange and also before completion?
- A company search has no priority period. Therefore, it should be carried out prior to exchange and again as close as possible to the delay of completion so it reveals the latest information.
- Where the transaction is of a particularly high value or where there is reason to be concerned about the solvency of a corporate seller or borrower, it is possible to do a telephone search at the Registry of Winding Up Petitions at the Companies Court on the day of completion.
Constitutional: Devolution
Does Westminster Parliament always remain sovereign?
- Yes, notwithstanding devolution. It can pass Acts for the whole of the UK pertaining to devolved matters even in the face of opposition from the devolved legislatures.
Constitutional
What does the Sewel Convention provide for?
- The Sewel Convention provides that the UK Parliament will not normally legislate on a devolved matter without the devolved legislature’s consent.
- However, UK P does have the competence to do so, as the Sewel Convention is not legally enforceable.
Criminal Practice: Hearsay
What is the test for admissibility of RES GESTAE evidence?
[R v Andrews]
Known as the ACKNER CRITERIA:
1. the primary question which the judge has to ask himself in such a case was: Can the possibility of concoction or distortion be disregard?
2. To answer, the judge had to first consider the circumstances in which the particular statement was made in order to satisfy himself that the event was so unusual or dramatic as to dominate the thoughts of the victim so that his utterance was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection.
3. In order for the statement to be sufficiently spontaneous it had to be closely associated with the event which had excited the statement that it could fairly be said that the mind of the declarant was still controlled by the event.
4. Quite apart from the time factor, there might be special features in a case which related to the possibility of distortion.
5. As to the possibility of error in the facts narrated in such a statement: If only the ordinary fallilbility of human recollection was relied upon that went to the weight to be attached and not to the admissability of the statement and was therefore a matter for the jury.
Criminal Practice
In relation to the provision of disclosure and information by the police to the solicitor, what is the solicitor entitled to see?
[Code C, para 11.1A]
- The police must give the solicitor sufficient information to enable them to understand the nature of any such offence and why they are suspected of committing it.
- The custody officer should allow the solicitor to inspect the custody record and detention log but need not provide a copy.
- The police are not obliged to provide the solicitor with any evidence of the case, but they normally will provide some if not all of the details they have.
Suspended sentences
What sentences can be imposed at the Crown Court?
- A custodial sentence of at least 14 days but no more than 2 years may be suspended for between 6 months and 2 years in the Crown Court.
- The period of suspension is known as the operational period.
- e.g., a 2 year sentence suspended for 2 years is within the limit.
Tax Law
Do companies pay CGT?
- Companies pay corporation tax on their gains, NOT CGT or income tax.
- They do not benefit from an annual exemption.
Judicial Review
What is considered ‘apparent bias’ in a JR claim?
- The courts will apply the test in [Porter v Magill]
- I.e., where there is a real possibility of possibility rather than a real danger.
- A decision made this way can be quashed.
Dispute Resolution: Deemed Service
When are the Particulars of Claim deemed served?
- Where by 1st class post, they are deemend served on the second day after they are posted.
- UNLESS, that day is not a business day. In which case, they are deemed served on the next business day.
Parliamentary Privilege
What is ‘EXCLUSIVE COGNISANCE’?
Parliamentary privilge includes the principle of EC. EC means that P controls its own processes and procedures, including the requirements for MPs to enter P. This can include (fictional example) requiring MPs to give an oath. A refusal to take the oath; P can refuse to allow the MP to sit.
Constitutional Law
What rule can apply where a statute is silent as to procedure?
The FAIR HEARING rule can apply. It requires that a person affected by a decision should have a fair chance to put his case. This is a COMMON LAW RULE.
Criminal Liability
Is a campervan a “building” for the purpose of burgulary?
Only if it is:
a) someone’s permanent home; OR
b) it is being used as a holiday home at the time of the offence.
Land Law: Interest in house
Where a house is given as a gift, are they bound by the implied trust interest of the former owner’s partner (where they have paid the deposit at the time of purchase?)
Yes - the person receiving the gift of house is NOT A PURCHASER FOR VALUE of the legal estate, and so is bound by the implied trust of the former owner’s partner.
Dispute Resolution: Part 36 offer
Where multiple Part 36 offers, is a party bound to take the first offer?
- Part 36 offers are open for acceptance by an offeree UNTIL the offeror either withdraws it by serving written notice OR its terms are changed by serving a written notice of change.
NOTE: The usual rules of Contract Law do NOT apply to Part 36 offers.
