Missed sections Paper 1 Flashcards
What damages are given for death? (tort)
- Losses up to date of death (no claim for death itself or losses after death)
- Dependents of the deceased can claim for losses suffered (close blood relations, those married or cohabitees for 2 yrs).
What are the general themes for special relationship(TP)? (tort)
D will be liable for TP if D had a supervisory relationship, assumed responsibility for C, need sufficient proximity between D + C or D + TP where c is an identifiable victim (not an unidentifiable member of a massive group)
What is required to register a charge at CH? Time limits?
Form MR01, certified copy of the charge, relevant fee (within 21 days beginning the day after the creation of the charge).
What is the earnings per share and gearing? When are these affected?
Earnings per share: return due to ordinary shareholders. Calculated by dividing profit after tax by average no. of ordinary shares.
More shares = dilution of EPS figure
Gearing: ratio of debt to equity.
More debt = higher gearing
What does the ‘Receivables’ figure show in the Balance Sheet?
The total of the amount of money owed to the business (aka ‘debtors’).
What is a specific doubtful debt? What is a general doubtful debt?
Specific - relates to a particular business who is in financial trouble or disputing liability to pay.
General - relates to an estimate generally (e.g. market generally)
What is a pre-packaged sale in administration? When can it be executed? Who is it sent to?
Where the business and assets of an insolvent company is prepared for sale to a selected buyer prior to the company’s entry into administration.
An administrator cannot execute a pre-packaged sale with the company’s directors or shareholders (or persons connected to them) unless the sale has been approved in advance by the creditors or the buyer has obtained an evaluator’s qualifying report.
The report must be sent to Companies House and all creditors.
Under a negligence claim for a product liability, who can sue? What is the effect of a warning on the product? What damage is recoverable? Time limits?
Not limited to who purchases the product or who used the product, but who comes into contact with it.
Warning: can break chain of causation if consumer does not carry out in way warning details.
Recoverable: no min for property damage. Pure economic loss not recoverable.
Time limits: 6 years (compared to 3 years in CPA).
UCTA:
- Exempting liability for death or personal injury resulting from negligence?
- Exempting liability for other loss (e.g. property damage) resulting from negligence?
- Exempting liability for breach of statutory implied terms about quality of goods?
- Exempting liability arising in contract (breach of contract)?
- CANNOT - void
2, 3, 4 - valid if reasonable
Note - s12 SGA can never be excluded or restricted.
What can an expert do if they need help carrying out their tasks?
Experts may submit written requests for direction to the court to help them carry out their task (CPR 35.14). Unless the court orders otherwise, the expert must:
1. provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and
2. provide a copy to all other parties at least 4 days before filing it at court.
What should take place if both sides have instructed their own experts? What should be produced after? Is this content confidential?
Discussion between experts to identify issue and come to an agreed opinion.
Joint statement: areas which experts agree and do not agree.
Yes - without prejudice unless the parties agree to refer to it at trial.
What is hot-tubbing?
Some or all the evidence of experts from similar disciplines is given concurrently.
What should a party do if they have received an unfavourable report from an expert instructed by that party or from a single joint expert?
- Put questions to expert (CPR 35.6)
- If there is not a direction for the expert to give oral evidence, seek such a direction from the court
- Seek advice from another expert advisor:
a. If the expert’s advice differs substantially from what a party was expecting, the party may seek permission to call another expert, but this is difficult and costly
b. If a party is not given permission to call another expert, that party can use the expert advisor to assist in preparing questions for cross-examination
What if a party seeks to call a different expert witness?
Needs permission from court. Can adduce evidence of second expert if they disclose first report (to stop ‘expert shopping’) - court should only allow second expert evidence if exceptional circumstances.
What is the effect of the following three clauses in regards to the Hague Convention?
1 “The Courts of England and Wales will have exclusive jurisdiction to determine any dispute arising out of this contract”
2 “The Courts of England and Wales will have jurisdiction to determine any dispute arising out of this contract” –
3 “The Courts of England and Wales will have non-exclusive jurisdiction to determine any dispute arising out of this contract” –
- Applies
- the Hague Convention states that this will be assumed to mean exclusive jurisdiction, and the Hague Convention applies to this.
- this clause aims to give the Courts of England and Wales jurisdiction on top of any other country which would have jurisdiction under any other relevant rules. The Hague Convention will not apply to this.
Jurisdiction within the UK:
What are the three areas where there is exclusive jurisdiction?
Civil Jurisdiction and Judgments Act specifies part must have jurisdiction e.g. proceedings concerning property is where the property is situated
Where parties agree who has jurisdiction
Submits to jurisdiction of court (e.g. filing a defence)
What is the basic rule if there is no exclusive jurisdiction regarding within UK?
What are the exceptions?
Does C have to follow the exceptions? (i.e. are they mandatory)
Sue where D is domiciled (individual - resident, company - reg office or place of incorporation).
A person can be sued in parts of the UK in which they are not domiciled in the following circumstances (schedule 4, rules 3 and 5):
* in matters relating to a contract, in the courts for the place of performance of the obligation in question;
* in matters relating to tort, in the courts for the place where the harmful event occurred or may occur;
* as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;
* where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together;
* on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending.
NO, the C can still just choose to sue where D is domiciled - does not have to follow exceptions.
What is the test for first appeal? Who does this include? What is the test for second appeal (where heard by CofA?)
Real prospect of success or some other compelling reason (lower court or appeal court - can include CofA)
Real prospect of success and raise an important point of principle or practice, or some other compelling reason.
Who are classed as close ties of love and affection for Alcock (secondary)?
Parent/child, husband/wife, engaged couples
For SGA, conditions or innominate? And SGSA?
Ss12-15 all conditions (satisfactory quality, fitness for purpose, match description)
SGSA s13 innominate (reasonable care and skill), reasonable time and pay a reasonable charge to supplier are question of fact (depend on circumstances)
Routes of Appeals from county court district judge to CofA?
District judge –> circuit judge
District judge dealing with non-insolvency proceedings brought pursuant to Companies Acts –> High court
Circuit judge –> high court judge
High court master –> high court judge
High court judge –> CofA
What are the exceptions to duty of confidentiality?
- certain statutes empower government and other bodies, such as HMRC, to require disclosure of documents and information;
- the duty of confidentiality is sometimes overridden by statutory or regulatory reporting requirements, eg those provided in the Money Laundering Regulations 2017, Proceeds of Crime Act 2002 and anti-terrorism legislation;
- cases where you need to reveal the information to support a defence in either a civil claim brought against you by a client (eg in relation to a claim for negligence against the firm by your client) or in a criminal prosecution;
- cases involving children, where you discover that a child has been sexually or physically abused, even if the client who imparts the information refuses to permit disclosure, if you believe that the child’s health (mental or physical) is in danger, you may have grounds to breach your duty of confidentiality by revealing the details to an appropriate authority.
What losses are recoverable in private nuisance? Public?
Property damage (more than de minimus), SPD (more than fanciful and materially interfere with human comfort). Public - personal injury, property damage, CEL, PEL, inconvenience (must be material)
What damage is recoverable in OLA 1957? 1984?
Personal injury and property damage (including CEL)
Personal (‘physical’) injury (inc. disease + impairment of person’s physical or mental condition).
What is the cap on CFA? DBA?
100% (apart from in personal injury - must not exceed 25% of general damages for pain suffering and loss of amenity and damages for pecuniary loss)
DBA: 25% personal injury (excluding damages for future care and loss)
35% employment tribunal
50% all other cases
In what situations are fixed costs used? Summary assessment? Detailed?
Fixed: uncontested disputes, enforcement proceedings, and small claims
Summary: Fast track or interim application/matter which has not lasted more than a day
Detailed: Other (e.g. multi)
What are the 3 main categories (+requirements) to make a claim under the Fatal Accidents Act?
Bereavement damages: can only be claimed by a spouse/civil partner (or partner if cohabiting for 2 years or more) or a parent if the child is under 18 (provided they have not married - if they have married then no claim by parent).
Dependants of the deceased: spouse/civil partner (inc. partner cohabiting for 2 yrs), parent (inc. treated by deceased as their parent), child (inc. of spouse), siblings, aunts and uncles, unborn children (basically anyone).
Funeral expenses paid by dependants
When to use a warrant of control? Writ of control? Exemptions to TCG?
Up to £600 - County Court. Between £600-5000 - County Court or High Court. More than £5,000 - must use High Court.
High Court - writ of control
County Court - warrant of control
Exemptions: tools of the judgment debtor’s trade - £1,350, basic domestic items (clothing, bedding, furniture etc).
What is the current VAT fraction when calculating VAT? How?
1/6 - tax rate (20)/100+tax rate (20)
What differentiates fraudulent, negligent and innocent misrepresentation?
Fraudulent - knowing (or recklessly) without belief in truth
Negligent - did not have reasonable grounds to believe up to time contract was made
Innocent - had reasonable grounds to believe and did so up to time contract was made
What is the ‘relevant step’ for:
-Personal service
-First class post/DX
-Fax
-Electronic method (email)
-Leaving the form with D
-Posting/leaving it with a DX service (not actually when it is delivered)
-Completing transmission
-Sending email
What are 4 interim applications not subject to the default rules?
Summary judgment
Interim payments
Security for costs
Interim injunctions
What would need to happen for a Norwich Pharmacal Order to be sought?
Issue claim against ‘Persons Unknown’ first
What is the rule regarding Part 36 offers and appeals?
A new part Part 36 offer should be made for an appeal (Part 36 offers only apply to proceedings and not an appeal)
Who is the target company in financial assistance?
The company whose shares are being acquired
QOCS exceptions without permission from court to enforce costs? With permission?
Without permission:
-No reasonable grounds for claim
-Abuse of court process
-Conduct obstructing proceedings
With permission:
-Claim is fundamentally dishonest (on balance of probabilities)
