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Missed sections Paper 1 Flashcards

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1
Q

What damages are given for death? (tort)

A
  1. Losses up to date of death (no claim for death itself or losses after death)
  2. Dependents of the deceased can claim for losses suffered (close blood relations, those married or cohabitees for 2 yrs).
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2
Q

What are the general themes for special relationship(TP)? (tort)

A

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)

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3
Q

What is required to register a charge at CH? Time limits?

A

Form MR01, certified copy of the charge, relevant fee (within 21 days beginning the day after the creation of the charge).

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4
Q

What is the earnings per share and gearing? When are these affected?

A

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

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5
Q

What does the ‘Receivables’ figure show in the Balance Sheet?

A

The total of the amount of money owed to the business (aka ‘debtors’).

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6
Q

What is a specific doubtful debt? What is a general doubtful debt?

A

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)

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7
Q

What is a pre-packaged sale in administration? When can it be executed? Who is it sent to?

A

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.

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8
Q

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?

A

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).

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9
Q

UCTA:

  1. Exempting liability for death or personal injury resulting from negligence?
  2. Exempting liability for other loss (e.g. property damage) resulting from negligence?
  3. Exempting liability for breach of statutory implied terms about quality of goods?
  4. Exempting liability arising in contract (breach of contract)?
A
  1. CANNOT - void
    2, 3, 4 - valid if reasonable

Note - s12 SGA can never be excluded or restricted.

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10
Q

What can an expert do if they need help carrying out their tasks?

A

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.

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11
Q

What should take place if both sides have instructed their own experts? What should be produced after? Is this content confidential?

A

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.

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12
Q

What is hot-tubbing?

A

Some or all the evidence of experts from similar disciplines is given concurrently.

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13
Q

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?

A
  1. Put questions to expert (CPR 35.6)
  2. If there is not a direction for the expert to give oral evidence, seek such a direction from the court
  3. 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
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14
Q

What if a party seeks to call a different expert witness?

A

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.

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15
Q

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” –

A
  1. Applies
  2. the Hague Convention states that this will be assumed to mean exclusive jurisdiction, and the Hague Convention applies to this.
  3. 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.
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16
Q

Jurisdiction within the UK:

What are the three areas where there is exclusive jurisdiction?

A

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)

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17
Q

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)

A

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.

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18
Q

What is the test for first appeal? Who does this include? What is the test for second appeal (where heard by CofA?)

A

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.

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19
Q

Who are classed as close ties of love and affection for Alcock (secondary)?

A

Parent/child, husband/wife, engaged couples

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20
Q

For SGA, conditions or innominate? And SGSA?

A

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)

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21
Q

Routes of Appeals from county court district judge to CofA?

A

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

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22
Q

What are the exceptions to duty of confidentiality?

A
  • 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.
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23
Q

What losses are recoverable in private nuisance? Public?

A

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)

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24
Q

What damage is recoverable in OLA 1957? 1984?

A

Personal injury and property damage (including CEL)
Personal (‘physical’) injury (inc. disease + impairment of person’s physical or mental condition).

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25
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
26
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)
27
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
28
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).
29
What is the current VAT fraction when calculating VAT? How?
1/6 - tax rate (20)/100+tax rate (20)
30
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
31
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
32
What are 4 interim applications not subject to the default rules?
Summary judgment Interim payments Security for costs Interim injunctions
33
What would need to happen for a Norwich Pharmacal Order to be sought?
Issue claim against 'Persons Unknown' first
34
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)
35
Who is the target company in financial assistance?
The company whose shares are being acquired
36
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)
37
When can a creditor bring a petition for a debtor's bankruptcy? When are they normally discharged from bankruptcy? Unless?
Owed an liquidated unsecured sum exceeding £5,000 Within a year Unless subject to a BRO - operates between 2 and 15 years
38
If there has been a serious breach (or suspected) by a colleague and the solicitor reports to the COLP, but the COLP decides not to report further, have they acted correctly?
No as although they were correct in reporting it to COLP - still hold a personal responsibility to ensure serious potential breaches of SRA's regulatory arrangements are reported to SRA. If they become aware that COLP has chosen not to report it, they should follow up or report the matter direct to the SRA (note that only serious breaches need to be reported)
39
What is the means test in the mags court? Values? What it considers?
Initial assessment: Weighted gross annual income (including partners - unless the partner is the complainant, a prosecution witness or a co-defendant) Eligible - 12,475 or less Ineligible - 22,325 or more In between = full means test Full means test - applicant's annual household disposable income (below £3,398 = allowed funding)
40
What is the means test in the Crown court? Values? What it considers?
Consider income and capital - combined capital and equity allowance above £30,000 - may have to contribute to costs Annual household disposable income: Ineligible above £37,500, eligible without any contribution if below £3,398, in between - eligible but have to contribute)
41
When is a restraint of trade clause allowed?
Prima facie void unless reasonable in terms of duration, geographical area and scope and are necessary for the protection of a legitimate business interest of the partnership.
42
How many designated members should an LLP have? What duties does this include?
TWO - if only two partners they should both be designated. Filings at CH, signing accounts on behalf of members
43
What is a 'salaried member' of an LLP?
Individual's contribution to LLP is less than 25% of expected disguised salary payable to LLP Don't have a significant influence over LLP
44
Is a written resolution based on number voting or shares held by the voters?
Shares held by the voters
45
If there is an informal meeting of members in a company, can a decision be passed?
Only in all the shareholders entitled to vote agreed
46
How long should you wait after case has been reported to NCA?
7 working days beginning with first working day after disclosure is made. Also can if there has been an initial refusal but a period of 31 days has elapsed since with no further steps being taken by the NCA,
47
What is considered a business activity for VAT purposes?
Continuing activity involving getting paid (in money or another form) - and have a degree of frequency continued over period of time
48
What does satisfactory quality under SGA include?
(a) Fitness for all the purposes (b) Appearance and finish (c) Freedom from minor defects (d) Safety (e) Durability
49
What will happen in a multi-track case if the parties agree all directions required for the future management of the case?
The court may 'vacate' (cancel) the CMC
50
How long does a D have to admit part or whole of a claim?
Within 14 days of service of particulars of claim
51
Is there a requirement to acknowledge service with a counter claim? How long does the claimant have to file a defence to a counter claim?
No so 14 days
52
What should an applicant do after a without notice hearing? What can the respondent do?
Serve ASAP after hearing on respondent the application notice, evidence in support + the order Respondent has 7 days within order being serve to apply for it to be set aside/varied
53
Who and when can a party apply for interim payment?
Only claimant and only after period for filing acknowledgement of service has expired.
54
How do you calculate the prescribed part fund?
50% of first £10,000 and 20% thereafter up to max of £600,000 (floating charge created before 6 Apr 2020) and £800,000 (floating charges on or after)
55
When is stamp duty payable on shares? When is stamp duty not payable in any situation?
Where consideration is £1000 or less - no stamp duty payable. More than £1000 = 0.5% rounded up to the nearest £5 When they are a gift
56
What is presumed with avoidance of floating charges to connected persons?
That the company was insolvent at time or became so as a result
57
What is void for avoidance of floating charges?
The security and not the debt itself
58
When are new floating charges valid?
New money (or other fresh consideration) is provided to the company in exchange for the grant of the floating charge on or after its creation (instead of an existing unsecured creditor being granted a floating charge over existing monies when the company is insolvent).
59
What is non-party disclosure? What are the requirements?
Party not party to proceedings should give disclosure of documents. 1)The docs are likely to support applicant's case or adversely affect the case of another 2)Disclosure is necessary to dispose fairly of claim or to save costs
60
What resolution is needed to remove a cap on share capital when issuing new shares?
Ordinary (!!!) resolution
61
Who are considered connected persons for substantial property transactions, loans and related transactions?
Persons connected with director: spouse, civil partner, parents, children, step-children only Bodies corporate (where director or person connected owns 20% or more of shares) Business partner of director or those connected with them Trustees of a trust where beneficiaries include director or those connected
62
What is required to call a short notice GM?
A majority who hold not less than 90% of total nominal value of shares
63
Who is an unfair prejudice claim brought against?
The company itself (not the individual director)
64
What is the net asset value?
Value of assets less the liabilities owed (recorded in top half of balance sheet_
65
For reliance interest, who needs to prove that the claimant would not have recouped their expenditure had the contract gone ahead?
The defendant
66
When is a D only entitled to legal advice by telephone?
For a non-imprisonable offence
67
What is a specified investment?
Insurance, shares, debt instruments (e.g. bonds), gov and public securities, pension schemes, regulated mortgage contracts (where at least 40% of the land is used/intended to be used - doesn't include loan to buy an office or loans to companies).
68
What are the other exemptions apart sale of a body corporate?
Ensuring info memorandum is distributed to investment professionals (authorised by FCA), high net worth companies (called-up share capital of not less than £5mn - or £500,000 for a body corporate with more than 20 members), High net worth individuals
69
What are the prospectus exemptions where they don't have to be approved by FCA (i.e. sale of a public company)
Directed at fewer than 150 persons, and/or Only sent to qualified investors (banks, investment institutions and national and regional govs)
70
Under the CRA, can you limit/exempt Liability for death or personal injury Liability for breach of statutory implied terms about goods Liability for breach of statutory implied terms about digital content Liability for breach of statutory implied terms about services What is the general rule about any term?
No No No Exclusions no, limitations not binding if liability is limited to less than price paid A term will not be binding on consumer if it is unfair - i.e. causes a significant imbalance in parties' rights and obligations.
71
What is UCTA reasonableness test?
Fair and reasonable of circumstances in contemplation of parties when contract was made e.g. strength of bargaining positions, customer knew or ought to have known of existence and extent of term (e.g. custom of trade/course of dealing), goods were manufactured for special order of customer
72
Quick overview of remedies under CRA for goods, digital content and services?
Goods: Short term right to reject (within 30 days of delivery/ownership passed) Repair or replacement Price reduction or final right to reject (can't have both and only available where either after one repair no goods or impossible/disproportionate to repair). Final right to reject - within 6 months with no deduction for use (except motor vehicles) Digital content: -Repair or replacement -Price reduction (right to receive refund within 6 months if still not ok) Services: -Repeat performance -Price reduction
73
What does Art 67 RAO necessary part exclusion not apply to?
Certain investment firms or credit institutions Contracts of insurance!!
74
What is the main theme of Art 67 RAO, FSMA s327 and Scope Rule 2
1. 'Necessary part' of other services carried on for client 2. 'Incidental' to provision of professional services (small part of what the firm does overall) and must account to client for any commission related to regulated services 3. 'Arise out' or 'complementary' to provision of particular service to client
75
What are the 10 propositions?
Merits test 1. I will lose my liberty 2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence. 3. It is likely I will lose my livelihood 4. It is likely I will suffer serious damage to my reputation 5. A substantial question of law may be involved 6. I may not be able to understand the court proceedings or present my own case 7. Witnesses may need to be traced or interviewed on my behalf 8. The proceedings may involve expert cross examination of a prosecution witness 9. It is in the interests of another person that I am represented 10. Any other reasons
76
Does the defendant have a right to appeal if they fail the means test? Does the D have a right to appeal if they fail the merits test?
No but can submit another form if circumstances change Fail merits test - In mags court can submit another application and then appeal to mags court if that is refused
77
What are the 3 requirements of the Caparo test?
Foreseeability of harm - reasonable person expected to foresee Relationship of proximity between C and D Fair, just and reasonable - crushing liability, insurance, floodgates, deterrence, maintaining high standards, defensive practices
78
What is a reply in DR?
Optional statement of case served by claimant in response to new issues raised in defence
79
What is the test for medical negligence to break chain of causation?
So gross and egregious as to be unforeseeable (very hard to break)
80
When choosing which court to issue proceedings, what must the claimant also do in regards to personal injury?
State whether the amount they expect to receive for pain, suffering and loss of amenity is/is not more than £1000
81
If the D has not given a solicitor's address or an address generally, what is the rule? What is an alternative place has to be used?
Usual or last known residence (or business or partnership if being sued in name of business or partnership) LLP: principal office or any place which has a real connection with claim Need to apply to court for permission
82
What is the definition of hearsay?
Oral or written statement made out of court Which is being adduced in court to prove the truth of the matter stated
83
Where does a claimant owe a D not to cause psychiatric harm?
Where D has assumed responsibility that C avoids reasonably foreseeable psychiatric harm Employer/employee (e.g. stress - nature + extent of work, signs of stress, availability of resources and size of business) Doctor/patient Police/police informant
84
What is the consequence if D does not accept C's Part 36 offer and C wins more than the offer at trial? What about if C does not accept D's offer and wins less at trial?
Indemnity costs from relevant period Interest on costs up to 10% above base rate Interest on damages up to 10% above base rate Additional amount - 10% up to £500,000 + 5% above £500,000 (up to max £75,000 - 1mn or more = 75,000) C pays D's costs + interest on those costs from expiry of relevant period (no indemnity stuff)
85
When are the only times an application for default judgment can be used?
D has not responded to claim by either serving an acknowledgment of service or defence within prescribed time limits
86
What to call each judge?
Supreme Court: My Lord or Lady Court of Appeal: My Lord or Lady High Court Judges: My Lord or Lady High Court Masters: Judge Country Court (circuit judges, recorders): Your Honour County Court (district judges): Judge
87
What is the statutory order for insolvency?
1. Liquidator's costs of realising assets subject to fixed charge 2. Fixed charge creditors 3. Other liquidation expenses 4. Preferential (first tier: employees - up to £800 in 4 months before winding up, second tier: HMRC - employees PAYE and NI deducted from salaries but not paid to HMRC, VAT not paid on supplies) 5. Prescribed part fund 6. Floating charge creditors 7. Unsecured creditors subject to prescribed part 8. Interest on unsecured debts 9. Shareholders
88
What are the common law exceptions to privity?
Agency - agent entered into a contract on the principal's behalf - clear they are acting on principal's behalf, who is named, and consideration moves from Principal Assignment - assigning rights so another party takes those rights - not allowed if non-assignment clause Collateral contract - Shanklin Pier Albazero - when A and B enter into contract for the benefit C, A or B can sue on behalf of C (where third party has no other means of recourse)
89
If the contracts (rights of third parties) is not excluded, what is its effect? What is a defence?
Third party identified by name, member of a class, answering particular description (need not be alive when contract created) can enforce a term of a contract if purports to confer a benefit on them (unless parties did not intend the term to be enforceable by a third party) Third party cannot be placed in a better position than if they had been a party to the contract themselves
90
What is the test in DSND for economic duress?
Pressure, whose effect is a lack of practical choice for the victim which is illegitimate (actual/threatened breach of contract, bad faith, whether victim protested at time, whether he affirmed and sought to rely on contract) which is a significant cause of including the claimant to enter the contract
91
What is the relevant threshold for a CDD for an occasional transaction?
15,000 euro
92
Hong Kong Fir test?
Does the breach deprive the party not in default of substantially the whole benefit of the contract?
SQE
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