Mixed Set 1 [FLK1] Flashcards
1
Q
A criminal case in Mag. Court - what kind of judges are sitting at trial?
A
Either a District Judge OR bench of lay mag.
2
Q
To recover damages in contract law, what do you need? or what can you claim for?
A
Either one:
(i) direct loss (i.e., they must arise naturally from the breach)
(ii) indirect or consequential loss (i.e., must be in contemplation of both parties as a probable result of the breach at the time the contract was formed, thus being reasonably foreseeable)
3
Q
What is the “cab rank” rule?
A
Barrister must accept a case immediately as long as it is:
(a) in the field of his work
(b) at a court which he normally practices in
(c) fee is their usual rate
Note: they cannot discriminate based on the nature of case/ client
4
Q
If a proposed Welsh legislation is outside the scope of competence, what will happen next?
A
UK AG/ Welsh Counsel General may refer the Bill to the UKSC OR Secretary of State can prevent the Bill from receiving Royal Assent by making an Order (note: HoL or HoC can vote for it to be annulled in 40 days).
5
Q
Tort (negligence)
- What is causation in fact?
- What is causation in law?
A
- Loss resulted directly from D’s negligence (loss must be a foreseeable result of the breach ie direct and proximate consequence)
- Damage is not too remotely connected to the negligence (but for test)
6
Q
Contract
What does an auction advert stating “without reserve” mean?
A
It establishes a unilateral offer. Thus, creating a legal obligation (binding effect) for the auctioneer to accept the highest bid.
7
Q
What is Wednesbury unreasonableness?
A
A reasoning or decision is so unreasonable that no reasonable person acting reasonably could have made it.
8
Q
Disputes
What kind of hearings will be conducted by telephone?
A
(a) allocation hearings
(b) listing hearings
(c) CCMC
(d) pre-trial interviews
(e) interim applications
(c) - (e) will be held via telephone if the duration is under an hour.
9
Q
What happens when a company has 50+ SH? What are the filing requirements?
A
(a) company must keep an index with names SH unless the Register of Members already contains an index itself
(b) changes to index must be made within 14 days of the change to the Register of Members
(c) Index must be kept available for inspection at all times in the same place as the Register of Members
(d) new SH should be reported on the next annual Confirmation Statement to CH
10
Q
Ethics (35)
What is a solicitor’s service level and time frame?
A
Service level - competent
Time frame - timely manner
11
Q
CFA
(a) What is the max. success fee?
(b) How is the success fee rate calculated?
(c) What is the cap for PI?
(d) Who pays the success fee?
(e) What is the format of CFA?
A
(a) 100% of the solicitor’s charging rate
(b) hourly rate + success fee
(c) 25% of general damages (pain, suffering and loss of amenity)
(d) legal fees by the losing party and success fee by the client
(e) in writing with the success fee stated
12
Q
DBA
(a) What is the cap?
(b) What is the cap for PI?
(c) What is the cap for employment?
(d) What is the format of DBA?
A
(a) max. 50% of damages recovered
(b) 25% of damages (excluding future damages)
(c) 35%
(d) in writing + specify proceedings + specify payment arrangement + when it is payable + why payment is set at that level
13
Q
When is a solicitor prohibited to accept referral fees?
A
(a) Criminal proceedings
(b) Claims for damages, death or PI
14
Q
PII Rules
(a) What is the EIP period?
(b) What is the cessation period?
(c) What happens after the cessation period?
A
(a) 30-day extended indemnity period. Try to obtain a qualifying PII because it just expired.
(b) Cannot take new instructions. Can work on matters engaged in before the cessation period only.
(c) At the end of 90 days - close the business.
15
Q
Contract
(a) Is there a legal presumption of force majeure under English law?
(b) Will the court imply it into the contract?
A
(a) No
(b) No, but instead, the Doctrine of Frustration will apply by default unless the parties agree otherwise. It is strict and narrow. Under it, the whole contract is automatically terminated and each of the parties is discharged from further performance.
16
Q
Contract
(a) Under common law, who can make a contract voidable by reason of mental abnormality?
(b) Who needs to prove mental abnormality?
(c) What do they need to prove?
A
(a) Mentally abnormal person
(b) Mentally abnormal person
(c)
(i) he did not understand the nature of the contract; and
(ii) other party was aware of his impairment
17
Q
Contract
Following a breach of contract, what can you do?
A
(a) affirm the contract and claim damages/ specific performance; or
(b) rescind the contract and claim restitution for unjust enrichment (if the company obtains benefits without payment)
18
Q
3 ways a third party can sue?
A
(a) tort - negligence
(b) contract under Contracts (Rights of Third Parties) Act 1999 (but only if they are mentioned in the contract/ the supplier knows it is for the benefit of the third party)
(c) CPA 1987 (strict liability) - only for death, PI and damage to property (cannot claim for the defective product itself).
19
Q
4 remedies for CRA 2015 breach?
A
(a) short term right to reject (30 days)
(b) right to repair/ replacement
(c) right to price reduction
(d) final right to reject (with refund)
20
Q
Contract - Discharge of Contract (171)
(a) repudiatory/ anticipatory repudiatory breach remedies
(b) condition
(c) warranty
(d) innominate term
A
(a) discharge or affirm contract (this is not automatic and it is the choice of the non-breaching party)
(b) major essential term. Breach = repudiation or affirm + damages.
(c) non-essential term and breach is considered a non-repudiatory breach.
(d) not a condition or warranty and can only be repudiated if its effect goes to the root/ benefit of the contract.
21
Q
(a) What is a representation?
(b) What is a term?
A
(a) It induces a party to enter into a contract. The statement is NOT guaranteed by the maker. Thus, it is NOT a contractual term.
(b) It is part of a contract. If an express or implied term is breached then you can obtain a remedy.
22
Q
Contract (137)
(a) What is innocent misrepresentation?
(b) What are the remedies?
A
(a) Statement that is not made negligently or fraudulently. The representator had reasonable grounds to make the statement.
(b) Rescission or damages
Note: damages are the courts’ discretion under the Misrepresentation Act 1967.
23
Q
Contract - Negligent Misrepresentation (135)
(a) What are the 2 types?
(b) What is negligent misrepresentation?
A
(a)
(i) at common law (tort)
(ii) Misrepresentation Act 1967
(b) The representator was honest and believed his statement to be true. He has been careless in his duty of care towards the representee. Thus, there was no reasonable care and skill.
24
Q
Contract - Negligent Misrepresentation at common law (135)
(a) What do you need to establish it?
(b) Remedies?
A
(a) Special relationship (BOP on representee)
(b) Rescission and damages (can obtain damages for direct loss provided it was foreseeable)
25
Contract - Negligent Misrepresentation under the Misrepresentation Act 1967 (135)
(a) What do you need to establish it?
(b) Remedies?
(a) BOP on representator to prove that he had reasonable grounds to make the statement and that it was true till the contract ended (no special relationship required or duty of care)
(b) Rescission and damages (can obtain damages for direct loss due to the statement)
26
Contract - Fraudulent Misrepresentation (135)
(a) How to establish it?
(b) Remedies?
(a) Representee must establish that representator knew:
(i) statement was false
(ii) did not believe that the statement which was made knowingly was true OR was reckless in making that statement
(b) Rescission and damages (can obtain damages for all direct loss irrespective of foreseeability)
27
Contract (135)
Give 3 scenarios where rescission is n/a for misrepresentation.
(a) if you affirm the contract through words/ actions once you are aware of the misrepresentation
(b) once the property that has been acquired through misrepresentation is destroyed
(c) once the property that has been acquired through misrepresentation is passed to a third party who is innocent and without notice
28
Contract (134)
Types of misrepresentation and their remedies.
(a) Fraudulent - Rescission and damages
(b) Negligent
(i) common law (needs special relationship and DOC) - rescission and damages
(ii) statute (needs reasonable grounds to make the statement) - rescission and damages
(c) Innocent - rescission (damages at the courts' discretion under the Act instead of rescission)
29
Contract (193)
(a) 2 breach of contract remedies?
(b) 3 types of loss of expectation?
(c) what is wasted expenditure?
(a) damages:
(i) loss of expectation
(ii) wasted expenditure
(b)
(i) loss of profit - amount of profit lost
(ii) difference in value - less valuable
(iii) cost of cure - to fix breach of contract
(c) expenses incurred when performing obligations under a contract
30
Contract
(a) What is a guarantee?
(b) What is an indemnity?
(c) Which is a primary or secondary obligation?
(a) Promise to fulfil obligations of a third party if the third party fails to do XYZ. It is a secondary obligation that supports the primary obligation of the third party.
(b) Promise to be responsible for another's loss. It is a primary obligation imposed on the party giving the promise.
31
What is the similarity between a termination clause and an exclusion clause?
Both can be held to be unfair to consumers under CRA.
Eg: Unilateral termination of contract. This will be found to be unfair and not legally binding on consumers.
32
What is the remedy for breach of warranty?
Damages
33
Past consideration is not valid consideration.
What is the exception?
The common law exception is:
(i) if it was requested by the promisor; and
(ii) both parties contemplated that payment would be made; and
(iii) features of a valid contract existed.
Lampleigh v Braithwait
34
When is a binding contract formed?
(a) the general rule
(b) email
(c) email outside business hours
(d) postal rule
(a) when offeree's acceptance is communicated to the offeror
(b) when email is delivered to the recipient's server even if it is not read
(c) next working day
(d) acceptance takes effect as soon as the letter of acceptance is posted (opposite to the general rule)
35
Contract (179)
What 3 events result in frustration?
(a) where performance is impossible
- subject matter is destroyed
- where person is ill/ dies
- means of performance become unavailable
(b) where performance is illegal
(c) main purpose of both parties to the contract is lost
(a) - (c) is automatic discharge.
You cannot discharge a contract simply because it becomes more difficult to perform.
36
If a restraint of trade clause is unreasonable, is the whole contract void/ voidable? Can the court change the clause?
Only the clause becomes void, not the whole contract.
The court cannot change it as the court cannot sever parts of a contract.
37
Unfair terms
(a) For B2C, which Act?
(b) For B2B, which Act?
(a) CRA 2015 (s.9 - s.16 cannot be excluded)
(b) UCTA for negligence and death and SGA 1979 for implied terms s.13 - s.15 which can only be excluded if reasonable.
38
(a) What is executory consideration?
(b) What is executed consideration?
(a) payment and performance at a future date.
(b) an act that represents consideration has already been performed (payment or performance). Once consideration is executed, it cannot be withdrawn or revoked.
39
What are 2 kinds of applications to ECtHR for alleged breach of convention or protocol?
(a) interstate (Article 33)
Eg France v UK
(b) applications from individuals/ companies/ non govt orgs (Article 34)
40
Should a retainer be in writing?
No
41
Should information about costs on a retainer be in writing?
No
42
Should the complaints handling procedure of a firm be in writing?
Yes
43
(a) on a regular fixed fee proposal, can you charge a success fee?
(b) what is the success fee cap?
(a) yes
(b) no cap
44
Can freelance solicitors provide reserved legal services?
Yes, if qualified for more than 3 years
45
Is breach of peace a criminal offence?
No, thus cannot fine/imprison. Can only hold on remand i.e “binding over” power by Mag. Court w/ fine if remand is breached. But can imprison if they refuse to be bound over.
Note: it is a civil offence but there is power of arrest when there are reasonable grounds to believe that a breach of peace is taking place/ imminent.
46
What is collective ministerial responsibility?
It is a constitutional convention
Ministers are expected to support govt policy in parliament and in public. If they do not, they must resign. Else, PM can fire them.
47
Judicial review claim timeline
3 months from when the claim first arose (ie the date of the decision to be challenged was made)*
Timeline can be extended by the court
6 weeks for planning decisions
*not when claimant was informed of the decision
48
ELS (5)
How do you address the following judges?
(a) Circuit Judge in the Crown Court
(b) HC Judge in the Crown Court
(c) Magistrate Court Judge
(a) Your Honour
(b) My Lord
(c) Sir/ Madam (if lay, then Your Worship)
49
To be eligible for legal aid, what do you have to show?
Means Test ($) and Merits Test (50/50 prospect of success)
50
ELS (168)
When is a person eligible for legal aid in civil proceedings?
(a) domestic abuse
(b) care proceedings
(c) homelessness (eg possession proceedings)
(d) discrimination
(e) immigration
51
Conditions for a search order?
(i) extremely strong prima facie case
(ii) R's actions have resulted in v serious damage to C's interests
(iii) clear evidence that R has incriminating docs + real possibility of destruction
52
Who all swear an oath of allegiance to the Monarch?
HoL
HoC
Members of the Welsh Assembly
Members of the Scottish Assembly
*Not N. Ireland
53
What does the Family Court deal with?
Child arrangement orders
Parental disputes
Child support
Adoption
54
Who are the judges in a Family Court?
Mag. Court Judge/ District Judge/ Judges of HC level
55
Which family matters are dealt with at the HC level?
Abduction
Wardship
56
Senedd (Wales) making secondary legislation
(a) No procedure
(b) Negative resolution
(c) Affirmative resolution
(d) Super affirmativee resolution
(a) Legislation is published. It only requires approval from Ministers.
(b) Legislation is published but within 40 days Senedd can annul/ cancel legislation if a member tables the motion requesting for it.
(c) Legislation is published in draft. Requires approval of Senedd to come into force.
(d) Legislation is published in draft. Requires approval of Senedd to come into force + consultation period before legislation can be put before Senedd for approval.
57
Who has parliamentary privilege?
Any person speaking in parliament (MP or otherwise eg an official)
58
What situations does parliamentary privilege cover?
Parliamentary proceedings, debates, committee hearings, and published reports.
59
Till what extent is the parliamentary privilege immunity?
It is absolute. They can say things knowing it is false and with the intent of causing damage.
60
Con Law - March
(a) Do you have to give notice?
(b) When is it required to give notice?
(c) When is it exempt from notice?
(a) Yes because it is a public procession
(b)
(i) if demonstrating support/ opposition to the views of any group
(ii) to publicise a cause/ campaign
(iii) to commemorate an event
(c)
(i) spontaneous event
(ii) funeral
61
Who has sufficient standing to apply for judicial review?
Any persons/organisations/ trade unions etc. Anyone who is affected by the decision or policy.
62
What happens if a motion of no confidence is passed in HoC?
A general election is NOT triggered immediately and PM is NOT mandated by law to advise the King to dissolve parliament.
Dissolution of parliament is a Royal Prerogative of the King and it can be exercised on the advice of PM.
63
What is Sailsbury convention?
It ensures that HoL shall not oppose the legislation (eg Govt Bills) from HoC which was part of the govts election manifesto.
64
To amd AOA - what docs do you need to submit to CH?
Amd AOA + resolution to adopt amd AOA + statement of compliance (this will certify that the amd has been made in accordance with the company’s AOA). This must be filed at CH within 15 days.
Failure to file = crim. offence for company + officers liable to a fine.
65
Amd to company AOA - what resolution and when does it become effective?
Must be passed by special resolution (not less than 75%). The amended AOA is effective upon execution of the resolution.
66
When you send a PT 36 offer to the opposing side to accept by X days, but want to withdraw or make it less advantageous before the end of X days - what can you do?
(i) If the opposing side did not yet accept - serve notice to change the terms of the offer
(ii) If the opposing side accepts - the offer is effective. You have to apply to the court for permission to change terms/ withdraw the offer within 7 days from acceptance from offeree or before the 1st day of trial. Court will only grant permission if there has been a change in circumstances + it’s in the IOJ.
67
What can you recover under OLA 1957?
death, personal injury and property damage
If you establish DOC, then causation and remoteness of damage must be considered (like standard negligence cases). So, if you in our yourself then you can recover expenses related to the injury and loss of work too as it flows from the injury itself (it’s foreseeable)
68
What can you recover under OLA 1984?
personal injury only
69
Arrest for breach of the peace, conditions?
- clear circumstances + imminent (sufficiently real and present) threat to the peace to justify arrest. The breach has to come from lawful conduct.
- threat must come from the person being arrested.
- the conduct must clearly interfere with the rights of others.
- natural consequence of the conduct must be violence from 3rd party (violence must not be wholly unreasonable).
- the conduct of the person to be arrested must be unreasonable.
70
If 2 clients are bidding on the same project, can you act for both of them?
Yes
This is because it will come under the exception of “competing for the same objective”. You need written informed consent from both clients + must put safeguards in place re client’s confidential info + you must be satisfied that it is reasonable for you to act.
71
When you want to issue a claim against a partnership, how can you do it?
(i) Sue the partner in their individual name (you do not need to join every partner, as the liability of partners is generally joint and several); or
(ii) Sue the partnership (D) as “a firm”. Following that, if you do not know the names of all the partners – make an application for disclosure of the partners’ names + addresses.
72
What res do you need for the appointment & removal of directors?
i. ordinary res; or
ii. res. of directors; or
iii. court order.
73
Where is dividend paid from?
company’s post-tax profits to shareholders
74
What res do you need for interim dividend payment and when is it paid?
no need for members resolution and can be paid at any time
75
What res do you need for final dividend payment and when is it paid?
It is discretionary & paid after the final accounts are approved & needs ordinary resolution (e.g., vote at AGM or written resolution).
76
What res do you need for name change?
special resolution
77
When should ADR be attempted?
ADR can be attempted at all stages! I.e., both, pre and during the proceedings. A party can request for a stay of proceedings for at least a month so that ADR may be attempted. The court will be likely to order the stay if the other party CANNOT show a. good reason why ADR would be unlikely to work.
78
Who can be an expert witness?
Anyone with relevant experience
79
Who can get a copy of the Reg of Members? Is it paid?
It must be given on payment of fee (no fee for members)/ apply to the court to refuse the request. This should be given within 5 working days
80
What is an interlocutory injection?
interim injunction (temp. injunction)
81
When is quia timet injunction used?
Where injury is certain/ imminent, or mischief is likely
82
What can you pay a witness for?
travel expenses + loss of time
83
Is there stamp duty on shares? Who pays it?
No stamp duty on shares of GBP 1,000 and under.
Paid by the purchaser.
84
Is a convention enforceable by the court?
No, but may still create legal obligations that the court can enforce.
85
In B2B contract, you can exclude satisfactory quality term?
Yes, if it is reasonable (e.g., second-hand clothes). This exclusion is n/a for consumer contracts.
86
What should you do if you are dissatisfied by legal services?
Complain to Legal Ombudsman
87
Who is a public authority?
Someone who performs public functions (not parliament).
E.g., of public sector public authority: courts, tribunal, govt. hospitals, govt. dept.
E.g., of private sector (public) authority: charities, private prisons.
88
If there is a clerical error on the judgment/ order and you want to apply to the court to rectify it, do you notify the other party of the application?
No need. There is not time limit either on such applications either.
89
If the firm wants to carry insurance distribution activities, what should they do?
Notify SRA in the prescribed form. Once SRA approves, submit info to FCA and then register with the Financial Services Register. Then, appoint an insurance distribution officer.
90
If an advert is an ITT, when you respond with another amount to the advert, is it an offer or counter offer?
The amount you propose is a first OFFER (not a counteroffer).
91
Does a statement of truth need a witness?
No
92
If your fixed charge does not cover the value of the debt, what do you do?
You can get the rest of your monies as an ordinary unsecured creditor.
93
What are the records a firm must keep?
(i) Name of client
(ii) Terms of transaction/ instruction
(iii) Date of instruction
(iv) Commissions received (for reg. activities)
(v) How the firm accounted for the commissions
(NO NEED TO KEEP A RECORD OF THE LAWYER DETAILS or NOTIFY SRA)
Records to be kept for 6 years.
94
What is non-justiciability (ouster clause)?
Certain types of executive decisions should be protected and not subject to judicial review. These decisions should be decided by Parliament/ executive, not the court.
95
When do you use EDD?
- transaction is complex
- transaction is unusually large
- unusual pattern of transactions
96
What does the DOC for doctors include?
informing patients of all material risks and reasonable alternative treatment
97
What effect does resolutions made by House of Commons have?
They are not law (thus no legal effect) and not binding
98
What is the effect of damages in tort?
to restore the C to a position that they were in before the tort was committed
99
In Rylands, when will you be eligible to get damages?
if the damage was be foreseeable, it will be recoverable
100
What is the effect of a submission of a Declaration of Incompatibility?
Upon submission of DOI, it is not mandatory to amend legislation and make it compatible with ECHR (they courts MAY do it). Thus the DOI is not binding on the parties.
101
What should the PII cover be?
- cover should be adequate and appropriate
- must be 2mil per 1 claim
- must be 3 mil per 1 claim for limited liability law firms and ABS.
102
Who can get dividend income allowance?
Available to everyone who has income from dividends, irrespective of their tax band. No tax is payable on the first 2K.
103
Will the address of SH appear on the public register?
It will appear, and it is mandatory.
It’s the responsibility of the director and company sec (if appointed) to maintain the register.
104
What details appear on the public register for a company?
Details in the register: name, address of each member, date of appt., date of end of appt.
Alternatively: private company can opt to keep the info. on their own statutory register.
105
By what timeline should a client comply with a court judgement re costs?
Within 14 days from the date the judgement/ order for the payment of the money (incl. costs) was given, unless CPR specifies a different date or court has stayed the proceedings.
106
Application for permission to appeal:
(a) County Court and High Court
(b) COA
County/ High Court – 21 days from original judgement decision.
COA – 28 days
*the day on which the period begins is not counted.
107
3 tests for employee vs IC?
control;
integration;
multiple/ economic reality.
108
Can exclusion clauses be incorporated by signature? What are the exceptions?
Yes, if you sign a contract w an exclusion clause, you are bound by it no matter what.
The only 3 exceptions:
(i) fraud/ misrepresentation
(ii) non est factum (i.e., expectation vs reality) and
(iii) doc doesn’t have contractual effect (e.g., time sheet, invoice, receipt).
109
What bills must be approved by the HoL?
- making length of parliament +5 years
- private bills (proposed to parliament by local authorities/ companies)
- bills which start in HoL
- any bill that is introduced to HoL less than 1 month before end of session (even a money bill).
Note: usually money bills only need HoC + assent. HoL can consider them but cant amend or block them.
110
Can a parliament bind itself?
No. In case it does by an Act, the courts will imply the principle of implied repeal. I.e., the bill will be passed as an Act of Parliament. Then, once a new future Act comes, any Article that is inconsistent with the previous Act will be repealed and the new conflicting Article will take precedence.
111
AOA types of filing:
(a) Model AOA
(b) Amd AOA
(c) Bespoke AOA
- Model AOA - no need to include AOA with form IN01to register new company
- Amd AOA - attach copy of amd articles
- Bespoke articles - attach copy of bespoke articles (model AOA + new provisions in 1 doc)
112
Ways to change a company's name? Is there a fee?
(i) Special resolution - give copy of special resolution + notice to ROC
(ii) Other means provided in AOA (e.g., OR) - give notice + statement confirming name change as per AOA to ROC
*no prescribed fee for name change
113
Will part payment will be accepted as sufficient consideration?
Yes, only if the payee can show that some consideration was supplied in return for the payer to accept a lesser sum
114
Who appoints the Lord Chancellor?
Monarch, on advise of PM.
115
Judicial review grounds
i. Illegality - substantive (re substance)
a. Misunderstanding the law
b. Improper purpose
c. Relevant and irrelevant considerations
d. Fettering of decision
e. Unauthorized delegation
f. Error of fact
ii. Irrationality - substantive (re substance)
a. Wednesbury unreasonableness (decision so perverse or absurd)
b. Human rights
c. What is unreasonable
iii. Procedural impropriety - discretionary
a. Requirement to consult
b. Natural justice
c. Legitimate expectation
iv. Proportionality
116
Are Acts of Wales primary or secondary legislation?
Primary legislation. They have the same status as Acts of UK Parliament. Thus, like UK Acts, they cannot be challenged on common law grounds
117
What do you need for direct discrimination? Does the act apply to employees and clients?
You have to be treated unfavourably for direct discrimination (not less favourably). Equality Act discrimination window applies to employees and clients. Note: reasonable adjustments are only for a protected character of disability
118
Are one-off items subject to VAT?
No, you can only charge VAT if you a generating a continuing income from the sale of that specific item itself. The purpose has to be to generate income. One-off items are not subject to VAT.
119
Under CPA 1987 who will be liable for the damage caused by the product?
A producer, importer, or own brander (eg manufacturer) will be liable for the damage* caused by the product.
*damage = death, personal injury, damage to property
Supplier will ONLY be liable, if C request to identify the producer, importer, or own brander but supplier is unable to identify them.
120
When should a client pay their bill? What is the consequence of not paying the bill?
Client must pay all bills 1 month after the date of the delivery of the bill (for non-contentious matters), or else the solicitor is entitled to exercise a lien at common law over the property of the client for unpaid costs until they are paid. But solicitor cannot sell or dispose of the client’s property.
If the client does not have property, the solicitor can request the court to grant an equitable lien against the client (or insurance company).
121
Similarities between ADR and mediation
Both held in secret. Both can be held by non-lawyers (ie ordinary people). The mediator/ arbitrator is chosen by the parties. Arbitration award is binding, and mediation result can also be binding if both parties sign an agreement.
Difference: mediation allows parties to come to their own agreement. Whereas, in arbitration, the arbitrator makes the final decision.
122
If there is an express prohibition on the employee doing XX and they do it anyway in the course of their employment, then will the employer will be vicariously liable?
Yes
123
Can a EL be deemed accepted through conduct?
Yes
124
Medical doctor’s standard of care
The appropriate standard is with respect to the post they are filling at the time.
E.g. emergency dept - reasonably competent emergency doctor. No other factors are relevant (e.g., age, race, experience etc).
125
Are leading Q’s are permitted in cross-examination?
Yes
126
In Wales, can proceedings be issued in Welsh? Who pays?
Yes, proceedings may be issued in Welsh and the court will pay for an interpreter if necessary
127
What is a derivative action?
It is brought by SH on behalf of company (company is C) against a director (usually for breach of director duty).
128
Can undertakings be made verbally? What is the timescale?
Undertaking can be made verbally and must be completed within an agreed timescale or within a reasonable amount of time
129
Who has the onus to rebut the presumption of intention to create legal intentions for spouses?
Claimant
130
Who is a primary victim? What do you need to show?
A primary victim is someone who accident happened to/ in physical zone of danger + must establish that physical injury was foreseeable. But, need not show psych harm was foreseeable).
131
Who is a secondary victim? What do you need to show?
Secondary victim (did not suffer physical harm. Must show that psych injury was foreseeable + Alcock test).
Remb, a secondary victim is someone who was never at risk of physical injury but suffered psych injury by virtue of witnessing injury to another or believing that another was at risk of injury. They just cannot get damages w/o satisfying the Alcock criteria (think rescuers).
132
What res do you need for property transactions?
if it is above 5K and over 10% of company value OR 100,000K+ then it would need SH approval by OR
133
What res do you need for a loan to director of 5K?
Board res of director only. If it was a loan over 10K then SH OR res would be needed.
134
Who can sue under private nuisance?
only people who have a proprietary interest in the land can sue. Eg: LI, EI, exclusive possession, freehold, tenancy. It should interfere with your use/ enjoyment of the land/ rights of the land
135
When do you sue under public nuisance?
If it affects your health/ safety/ comfort/ property of the public at large
136
Can you use a criminal conviction in a related civil case?
Yes, but D may establish that they should not have been convicted on the balance of probabilities.
137
Who has R to free legal advice (by custody officer)?
Anyone who is arrested or being interviewed by the police as a volunteer. Also available for a suspect/ volunteer at the police station.
138
What happens if a doc is not disclosed within the timeline?
The court may exclude the doc. This is at the court’s discretion.
Re non-compliance of case management directions:
Step 1: try to agree to an extension with other side (within 28 days) – can only be done if it does not affect hearing dates.
Step 2, beyond 28 days: apply to the court. The sanction will automatically take effect, unless the defaulting party obtains relief. Court may also make a wasted costs order.
139
When can an application be made to the ECtHR?
Within 4 months of the final decision by the highest competent national authority in the UK
140
Standard of care in special situations i.e., when is the duty breached?
(a) children
(b) sporting
(c) unskilled D
(d) ill person
(e) emergency situation
(f) wrt to state of knowledge
(a) Children – judged by those of similar age (i.e., would not have foreseen the risk)
(b) sporting – duty is breached only where there is reckless disregard by D
(c) unskilled D – judged to a reasonably competent standard
(d) illness – D is not liable if they have no knowledge or warning of their condition
(e) emergency – duty to exercise care and skill as was reasonable in all the circumstances (eg fire dept)
(f) state of knowledge – judged at the time of the incident
141
Under the Consumer Protection Act 1987, will D be liable if the product was given as a gift?
No, as it was not supplied in the course of a business
142
What is individual ministerial responsibility?
Individual ministerial responsibility refers to the convention that a minister is responsible to Parliament for the actions of their department.
143
Appeals
(a) From Mag. Court to HC
(b) From Mag. Court to CC
(c) From Mag. Court to admin court for judicial review
(a) by way of case stated – appeal based on law. Open to P and D.
(b) against conviction/ sentence. Open only to D.
(c) breach of natural justice. Open to P and D.
144
Who can be appointed as Justice of the Supreme Court?
They need to have any 1 of the below:
i. Held high judicial office (HC, COA, N.I HC or COA, Scottish Court of Session)
ii. Being a qualifying practitioner* for min 15 years
Qualifying practitioner = i.e someone with higher rights of audience (could be solicitor).
*No need to have previous judicial experience.
144
How can a senior judge (eg Justice) be removed for misconduct?
By a resolution from both Houses of Parliament. Justices are not subject to term limits and hold office until retirement.
145
What can the Monarch do?
i. Appoint life peers to HOL (on advice of PM)
ii. Right to consult cabinet ministers
iii. Appoint PM
iv. Head of Armed Forces (declarance of war and peace, exercised on the advice of minister)
v. Summon parliament and prorogue (discontinue w/o dissolving it)
Cannot: have a right to a seat in the HOL
146
Why are damages awarded in a contract?
To put the injured party in the same position as though the contract had been performed.
147
When are nominal damages awarded?
When there is no actual financial loss or substantial harm. It is to acknowledge the infringement of C’s rights and to provide a legal remedy despite the absence of significant financial loss.
148
What does a legally enforceable contract require?
- fixed or predetermined price
- payment dates
- all essential terms
None of the above should be left to be agreed upon in the future.
149
Can a public procession be banned?
Chief constable has the power to ban for up to 3 months by applying to local authority for banning order. Banning order needs subsequent confirmation from the Home Sec.
150
Who can make a company voluntary strike off?
Must be made by all directors or a majority of them
151
Pre Action-Protocol for PI - when should you acknowledge LOC and confirm position on liability?
D should acknowledge LOC within 21 days, then confirm position on liability within 3m
152
Public nuisance
Re health, safety, comfort or property of the public at large. Eg: obstructing a highway, creating danger on a highway, carrying an offensive trade, selling food unfit for human consumption.
Elements:
- person affected by the nuisance constituted the pubic or a particular class of the public; and
- C suffered special and particular damage, over and above the inconvenience suffered by the public at large.
Damage must be direct & substantial. Covers both PI and property damage.
153
Who pays CGT?
Individuals, partners, PRs and trustees.
Note: companies DO NOT pay CGT.
154
What is CGT payable on?
It is payable on profit that is made on the disposal of a chargeable asset
155
Who pays corporation tax?
The company selling the asset. Corporation tax will be taxed on the taxable income profits and capital, or chargeable gains (i.e., capital gain).
Remember, the buyer always pays SDLT.
156
When do you apply for Security of Costs? What happens is security isn’t given?
Applied for when D is concerned that C will not be able to pay D’s costs, if ordered to do so. If security is not given, default judgement can be entered into for D, with the costs of the claim to be subject to detailed assessment OR the order may provide that the claim is automatically struck out if security of costs is not provided within the time stated in the order.
157
When do you serve a statutory demand (bankruptcy related)?
when the debt is over 5K
158
What is ordinary commercial pressure?
It is only duress (thus leading to recession) if C can establish that:
- the threat/ pressure by D was illegitimate;
- threat/ pressure by D caused C to enter into the contract; and
- C has no reasonable alternative but to give into the threat/ pressure.
Note: commercial parties can use their bargaining power.
159
Under CPA statute who is liable?
M is always liable. Exception: if retailer cannot identify M, then retailer is liable. Consent is not a defence to CPA (only for common law neg.). CPA cannot exclude or limit death/ PI.
160
What is non-justiciability?
Courts do not have the power to review this. The unreviewable areas for judicial review are: treaties, defence, mercy, honours, dissolution of parliament and appointment of ministers. (AKA Ouster clause)
161
How is Prerogative of Mercy exercised?
L Chancellor recommends to Monarch
162
What is the DOC of a Director?
Reasonable care, skill and diligence level of a director – of a reasonably diligent director (objective) + raised based on actual, skill, knowledge and experience (subjective) ie their profession.
163
What are the requirements of a non-compete clause?
must be reasonable (in terms of public interest) in order to enforce. It will take into consideration trade practices and customs. Needs to be protect the legitimate interest of the party relying on it, in terms of duration and geographical area
164
What do you need to establish a special relationship in tort (eg banks)? (Hedley Byrne)
i. Assumption of responsibility giving rise to a special relationship (eg fiduciary relationship of trust and confidence, even w/o a contract)
ii. Reliance by C and the reliance is reasonable.
165
Res and docs needed for name change?
i) special res (notice + res. copy to ROC) OR
(ii) thru means provided in AOA (to ROC – notice + statement of confirmation that changes made acc to AOA)
166
If a solicitor is accepting gifts, what should the gift be?
proportionate, reasonable and justifiable
167
Rylands, elements?
i. Isolated escape
ii. D brought onto their land, and collect, and keep there something to likely cause mischief
iii. It escapes and causes damage to someone else’s land
iv. The thing brought on to the land must be non-natural
Note: it is strict liability (fault without proof)
168
If the opposing party fails to comply with a rule, practice direction or court order, what do you do?
send them a letter placing them on notice that unless they do XYZ within X days, you will make an application for an Unless Order.
When making an order, the court may:
- make it subject to conditions incl. payment of a sun of money into the court +
- specify the consequence of failure to comply w the order/ condition.
This power may be combined with rule 3.4.2.(c) – the court may strike out a statement of case, if it appears to the court that there has been a failure to comply with a rule, PD or court order.
169
ECtHR decisions in UK - who is it binding on?
Not binding on national courts.
Binding on national govt, but unenforceable (but govt is likely to pay). The remedy is usually to pay damages that are “just and satisfactory” to the applicant.
170
What is the scope of B2B limitation of liability is based on UCTA?
liability for PI and death can never be limited or excluded. However, the rest (eg loss or damage) can be limited, subject to reasonableness.
Under English case law - fraud and fraudulent misrep. cannot be excluded under any circumstances.
Note: For B2C, look at CRA – the test is fairness.
171
Do you need a notice for public procession?
6 clear days notice to the police. Ie if its going to be held on a Sat, notice must be given not later than the previous Sat (or as soon as delivery is reasonably practicable). Notice must be delivered by hand.
172
Heads of damages under Fatal Accidents Act (Tort)?
- statutory bereavement
- loss of income and services dependency
- funeral expenses
173
When is appointing new directors effective?
A resolution to appoint new directors is effective once it is passed. Form AP01 needs to be filed within 14 days of the Director’s appointment with CH.
174
If you are a primary victim, do you have to show show recognized psych injury?
No
175
What is:
Actual authority
Implied authority
Apparent authority
Actual authority – they have an agreement assigning them authority.
Implied authority – authority developed through course of conduct.
Apparent authority – no express or implied authority, so they act as an agent on behalf of the company and its enforceable if 3P did not know that the partner did not actually have authority.
176
HRA remedies?
It should be “just and appropriate”. Remedies take the form of declarations, injunctions and prerogative orders.
177
For incorrect installation of goods (breach of s15 under CRA 2015), what are your remedies?
You do not have the short-term right to reject (ss 20 and ss 22). The options available are:
- right to repair/ replacement, failing which, right to a final price reduction/ final right to reject
178
Is legal aid available abroad?
only for civil cases, NOT for criminal cases
179
Do Welsh bills have to receive Royal Assent?
Yes, irrespective of who they affect, they must receive Royal Assent.
180
Can the police can be liable for positive acts of negligence?
Yes, if the positive acts of negligence result in harm
181
As a C, if you want to amend the name of D/ add a new D, after the limitation period of the claim has expired, what do you do?
you need to apply to the court to make the changes, and the court will only agree to do so if it is necessary
182
If you have a partnership, and the thing you are selling becomes illegal due to a change in law, what will happen?
then your partnership automatically dissolves
183
Re vicarious liability of the employer
(a) health and safety violations
(b) neg breach
(a) For health and safety violations - things need to be in proper working condition.
(b) For neg breach - the DOC owed by the employer must be breached.
If C does something idiotically, employer cannot be liable under neg, or under health and safety as along as the equipment is fine.
184
Does LLP pay corporation tax or CGT?
No, neither
185
Are contracts entered into by minors for non-essential items are enforceable against the minor?
Contracts entered into by minors for non-essential items are unenforceable against the minor, unless ratified by the minor upon attaining majority.
Exception: it is enforceable against the minor where a contract is beneficial to the minor for necessary goods and services. They should have utility value and should NOT be mere indulgences or luxuries or gifts.
186
If you don’t comply with an Unless Order, what happens?
your statement of case will be automatically struck out, but you can apply to the court for relief from sanctions
187
When a company has only 1 member/ becomes a single member company, what do you update?
Update PSC Register (within 14 days of change) and add a note to the members’ register stating that the company has only 1 member (i.e., notify CH of that change within further 14 days).
Transfer of shares (or new shareholder) must be reported in the next annual confirmation statement to CH. No need to send a notification of the change of ownership, a stock transfer form or copy of the share certificates to CH.
188
When the opposing side doesn’t comply with an Unless Order, what do you do?
you should file a request for judgement. Do not apply for the statement of case to be struck out – this will be automatic (activated as a sanction). Filing a request for judgment will help to obtain a cost judgment once the opposing party’s case has been struck out.
189
If a contract is entered into on the basis of illegality - what is its effect?
it will be unenforceable (at common law), not void/ voidable. The non-defaulting party will be to recover any $ paid to the party who made the misrepresentation.
190
When do you file evidence in a summary judgement?
The respondent to an application for summary judgment must file and serve any evidence (to the applicant of the summary application) which they intend to rely upon at least 7 days prior to the hearing. The rule is the same for litigants in person.
191
Can exemplary damages (ie punitive damage) be awarded for a breach of contract?
No.
Breach of contract = damages assessed on the actual injury/loss of the claimant, or his economic position. Loss is not assessed on the gain of the D (we do not punish for breach of contract).
Damages at common law as a remedy, are intended to restore the party who suffered the loss to the same financial position he would have been in, had the contract been properly performed.
192
Once you submit the docs as ordered in the Standard Disclosure, then you find out there are more docs that need to be served, what do you do?
notify all the parties, and file and serve a supplemental list of docs. This is because the duty of disclosure continues until the proceedings are concluded.
There is no immediate need to apply for relief from sanctions/ future directions.
193
If you are making an introduction to an ATP, can you receive any payment?
you CANNOT receive any sort of payment for the introduction – only then the exemption will apply
194
Under CPA do you have to prove negligence? What do you need to prove?
No need to prove negligence
Must show:
(a) product was defective
(b) this defect caused injury/ damage
195
What Is the Contra Proferentem Rule?
It is re exclusion clauses where the wording is ambiguous.
It should be read in a way that disfavors the party who originally drafted the clause or seeks to rely on it.
196
What is Parol Evidence Rule?
When a contract is reduced to writing, it is assumed that all the terms are contained in the written contract. Thus any extrinsic evidence (even oral evidence) is not admissible.
Exceptions to admit extrinsic evidence:
- trade use or custom
- incomplete terms
- ambiguity
- collateral contract
197
What happens if a judicial review proceeding is successful?
The most common remedy the court MAY order is a quashing order (discretionary remedy). This has the effect of nullifying a decision made by a public body, rendering the decision invalid.
The court has the option of suspending the until the date specified in the order, in order to first give the public body time to rectify the failure that the court has identified (ie to carry out remedial action).
198
To establish full scope of negligence, what do you need?
- DOC was owed
- Breach of that DOC
- Breach directly resulted in that specific loss/ damage
199
Are children's clothes subject to VAT?
Yes, at 0% rate
200
Disputes - Methods of enforcement (183)
(a) warrant of control
(b) writ of control
(c) 3rd party debt order
(d) charging order
(e) attachment of earning order
(a) seize and selling physical goods (county court)
(b) seize and selling physical goods (high court)
(c) 3rd party (eg bank) to pay off debt owed by D
(d) when the debtor has property assets (eg C can put a charge on D's land and force the sale, the money will go towards debt)
(e) D must be employed (regular income) & employer will pay monies from D's wages to court (only through county court)
201
Contract
What are the elements of unjust enrichment?
(a) ENRICHMENT* of the D
(b) at the expense of C
(c) which, if retained, would be unjust
*enrichment is not limited to just monetary gains. It could be services provided or obligations discharged. That is why under (a) we do NOT say "BENEFIT of the D".
202
Under Rylands
(a) do you have to prove negligence on the part of the land owner whose substance escaped?
(b) does the thing that escaped have to occur naturally?
(c) does the landowner have to recognize that there is a high risk that the thing may escape?
(d) does the damage have to be foreseeable?
(a) no, it is strict liability (ie he will be liable even if it is not his fault)
(b) no, but it must be brought on to the land and accumulated
(c) yes, however unlikely the escape may be
(d) yes
203
How are Recorders appointed?
A Recorder (part time Circuit Judge, usually a practicing solicitor or barrister) is appointed by the King on the recommendation of the Lord Chancellor
204
How much is stamp duty? When is it charged?
0.5%
It is charged when consideration is over GBP 1,000
205
What is:
(a) joint liability?
(b) several liability?
(c) joint and several liability?
(d) "waiver of defence" clause?
(a) all parties are liable for the debt as a whole, but can only be sued together (not individually)
(b) beneficiary can sue each party individually for their share of the debt
(c) beneficiary can sue any or all parties for THE ENTIRE debt, at their discretion (then the parties would be entitled to obtain contribution from the other parties)
(d) if a contract contains this clause - the co-party to the debt will be released from liability BUT the other parties to the debt are still NOT released from liability.*
*if there is no "wavier of defence" clause, and a co-party to the debt is released from joint and several liability... then all parties are also released.
206
What are the formalities when purchasing shares?
1. seller prepares and executes stock transfer form
2. executed form is handed to the buyer's solicitor
3. buyer's solicitor prepares a cheque for the stamp duty amount
4. buyer's solicitor sends the cheque + executed stock transfer form to HMRC (payment of stamp duty should be within 30 days of execution of stock transfer form ie effective date of transfer)
5. HMRC verifies documents and payment (details of the transfer and accuracy of stamp duty tax)
6. HMRC returns stamped stock transfer form to buyer's solicitor
7. Buyer's solicitor will send the stock transfer form to the seller for registration of shares
8. Seller can either (i) register the transfer or (ii) give the buyer notice of refusal to register the transfer + reason of refusal within 2 months from the date it received the notice to transfer
9. within 2 months of receiving the notice of transfer, the seller must have the new share certificates ready
Transfer of shares must be reported in the next annual confirmation statement (no need to send copy of share cert to CH or HMRC). Only update the PSC and notify CH if the shareholding is over 25%.
207
LLP
(a) how many members names should be disclosed on the business letters?
(b) where should thelist of members names be kept?
(c) do they have to file annual return?
(d) whose information is maintained on the central register?
(a) up to 20 members (including designated members)
(b) principal place of business (and it should be open to inspection)
(c) no, just confirmation statement
(d) all members (with personal information)
208
When does a third party have an enforceable right under a contract under Contracts (Rights of Third Parties) Act 1999?
(a) if the contract states explicitly that they will benefit; or
(b) f the contract, upon interpretation, appears to benefit the third party
*note: here, the third party should be a beneficiary of the contract (the third party IS NOT "assigned" benefit of the contract)
209
Tort
(a) what is exemplary damages?
(b) when is it awarded?
(a) it is punitive damages, awarded when the court wants to punish D for deplorable and outrageous behaviour.
(b) libel, slander, breach of confidence, misuse of private information, malicious falsehood or harassment.
210
Tort
What is contemptuous damages?
A very small sum of damages awarded when, although the claimant is technically entitled to succeed, the court thinks that the action should not have been brought.
211
Company - Register of Members
(a) can a member request for a copy or only request to inspect it?
(b) when should it be kept?
(c) will the member have to pay a fee for it?
(d) can the general public request for a copy/ view it?
(e) how long should the request be complied within?
(a) both
(b) at the registered office
(c) no
(d) yes both, for a fee
(e) 5 working days
212
Is UK SC bound by its own previous decisions?
Yes, but has the power to depart from them
213
When can a solicitor stop acting for a client?
(a) for a good reason + w reasonable notice; or
(b) w/ consent of the client
Note: refusal or failure to make payment (within a reasonable time) of a reasonable sum of costs incurred/ to be incurred is a good reason to withdraw from the retainer agreement with reasonable notice
214
CGT annual exempt amount 2023- 2024 for:
(a) individuals, personal representatives and trustees for disabled people?
(b) other trustees?
(a) £6,000
(b) £3,000
215
Money Laundering
(a) is it a criminal offence?
(b) should you disclose it (to the police) if you SUSPECT that a client/ FORMER client is planning to engage in such illegal activity?
(c) what is the consequence of failing to disclose such information?
(a) yes
(b) yes because such disclosure will be permitted by law
(c) Non-disclosure offence under S.33 of POCA 2002 (Failure to Disclose (Regulated Sector)).
216
What is the impact of HRA in interpreting legislation having regard to ECHR?
HRA requires primary and secondary legislation to be interpreted "as far as possible" in a way that is compatible with the ECHR.
S3 of HRA allows for judicial review of the incompatible Act, however, the courts cannot set aside the Act.
217
Limitation period for an action in tort?
Eg negligence
(a) 6 years from the date on which the cause of the action (ie damage) accrued (it is NOT when the beach occurred/ when C found out) - S.2 LA 1980;
or
(b) 3 years from when C becomes aware - S.14A LA 1980
Max limit of 15 years from the act of negligence - S.14B LA 1980
218
CPA liability post-Brexit
Company A - Chinese manufacturer of product
Company B - French importer of product
Company C - British distributor of product throughout UK
Under CPA, who is strictly liable for the defective product?
A and C
This is because A is the manufacturer and C is the importer of the goods into the UK.
219
Can an expert revise his report? If yes, when?
Yes
Experts duty to the court overrides who he receives instructions from but he may still revise the report at his discretion if he agrees with the observations/ comments of the client
220
Contract
What should a promise to discharge debt be supported by?
Consideration
Consideration must be in terms of value (eg a promise not to complain about XYZ is not sufficient consideration)
221
Bankruptcy statutory order for companies
i. Secured creditors – where the debt is not satisfied in full from the secured asset, the remainder is claimed as an ordinary creditor
ii. Administration costs of the bankruptcy
iii. Preferential debts - eg debts owed to HMRC, employees’ arrears of wages or salary for four months prior to the relevant date subject to a maximum (currently £800) and accrued holiday remuneration;
iv. Ordinary unsecured creditors - eg CC debit;
v. Statutory interest paid from the date of the order to the date of payment;
vi. Postponed creditors such as the spouse or civil partner of the bankrupt who has proved a debt; and
vii. The bankrupt then receives any surplus.
222
Limitation period for a breach of contract claim
Within 6 years from the breach occuring - S.5 LA 1980
223
When will the court issue a summary judgment against a C or D on the whole of a claim or on a particular issue?
(a) no real prospect of succeeding in the claim/ defence/ issue
and
(b) no other compelling reason why the case/ issue should be disposed of at a trial
224
Disputed - witness summons
(a) who should receive it?
(b) when should they receive it?
(c) what happens if the witness fails to appear at trial after being properly served with the witness summons?
(a) any witness expected to provide oral evidence at trial
(b) before trial date (at least 7 days before trial)
(c) Fine in County Court and will be found in contempt of court in High Court
225
When the court appoints an expert but the client is unhappy with the report and wants to seek a second opinion from another expert - how will the court deal will this?
The client will be able to rely on an alternative expert but only WITH the permission of the court + the court MAY require disclosure of the first report.
226
Abatement
(a) what is it?
(b) do you have to give D notice of the abatement?
(a) it is a self-help remedy for nuisance where C takes independent action to remove the nuisance
(b) depends
(i) if C is entering D's land to carry out works to abate the nuisance - yes, C must give D prior notice. Else, C risks becoming a trespasser.
(ii) if C is NOT entering D's land - there is no requirement for prior notice.
227
Disputes
(a) What is the CPR to make a Request for Information?
(b) What do you do when the CPR is breached?
(a) the party seeking clarification must serve the other party a WRITTEN request for clarification + the request should mention the date by which the response to the request should be served (do not file an application with the court as a first step!)
The date must allow the responding party to respond within a reasonable time.
(b) the responding party must invite the requesting party to withdraw the application from the court (if filed with the court) + pay the costs the responding party incurred in respect of the application to date (as this would be the usual order the court will provide, should the application be dismissed at its hearing).
228
If a law firm wants to make financial promotions, what condition must be met in order for the firm to be EXEMPT from the financial promotion restriction under the Financial Promotion Order 2001?
The law firm should be engaged in regulatory activities authorized under Part XX of FSMA.
This exemption will allow the firm to make financial promotions (without authorization) if it is related to the (regulated) activities of its clients.
229
Who should a claim form be served on for a company?
A CF is personally served on a company by leaving it with a person holding a senior position within the company.
“Senior officer” = director, treasurer, secretary, chief executive, manager, or other officer of the company.
If the CF is not validly served, then the company should acknowledge the proceedings and express its intention to challenge the jurisdiction to avoid the risk of an inadvertent default judgment.
229
What are the 4 grounds of judicial review?
(a) Illegality - decision maker must correctly understand the law
(b) Irrationality - a decision that is so outrageous in its defiance of logic or accepted moral standards
(c) Procedural impropriety - failure to follow procedural rules/ basic rules of natural justice*
(d) Proportionality - public body may only restrict rights to the minimum necessary to achieve a legitimate objective
Natural justice = making decisions with fairness and without impartiality.
229
(a) Can you act for a client if CDD is not complete?
(b) What is the exception to the rule?
(a) No. You must cease acting for a client if CDD cannot be completed.
(b) This general rule does not apply if the solicitor is defending the client in legal proceedings. Here, you may continue to act for the client as long as verification is completed as soon as possible.
229
Once you receive the CF and POC, what do you do next? Keep in mind, you wish to defend the claim and challenge jurisdiction.
File an AoS within 14 days of deemed service indicating an intention to challenge the jurisdiction (with supporting evidence). Then within the next 14 days, make a formal application to challenge jurisdiction.
It is not necessary to indicate that you intend to defend the claim as you are intending to challenge jurisdiction in the first instance. If the court accepts jurisdiction, it will give directions for the filing of a direction in the usual way.
230
(a) When does a partnership end?
(b) Is there an exception to the rule?
(a) it ends on the death/ bankruptcy of a partner
(b) yes, if there is an agreement amongst the partners (verbal or written) then it will continue in accordance with the agreement upon death of one of the partners
231
Do you need to give notice of a public assembly?
No
You only need to give notice for a public procession!
232
What is a public assembly?
2 or more people + in a public space + which is wholly or partly open air
233
Can police ban a public assembly?
No (unlike a public procession!)
But they can impose conditions if necessary
234
When do you apply to the court to wind up a company or enter into liquidation?
When it is "just and equitable"
235
Company
When is a claim for unfair prejudice issued?
It is designed to directly benefit the members if successful and can result in solving issues between members and directors
236
What happens if a primary victim was subjected only to the RISK of physical injury (so not physically harmed) but developed psych injury - what do you need to show?
They can recover damages for pure psych damage provided the physical injury was FORESEEABLE (but no requirement to prove foreseeability of psych injury)
Note: they will not be able to recover damages for pure psych damage only because they were exposed to a risk of physical injury!
237
Dispute - Track Allocation (109)
(a) small claims
(b) fast track
(c) intermediate
(d) multi track
(a) not more than 10,000
PI = VALUE of claim is 10,000 or less
PI damages is 1,000 or less
Parties can represent themselves
(b) not more than 25,000
1 day trial
Use of DQ
1 expert per party/ expert evidence in 2 expert fields
(c) 25,000 - 100,000
3 day trial
2 experts per party
Max 3 parties to a claim
(d) 100,000
Use of CCMC
238
What do you disregard when you value a claim to determine if it will go to County Court or HC?
interest, contributory negligence, D's counter claim, D's set off or any liability that D has to pay
239
PDPAC (general)
(a) when is it used?
(b) who sends letter before claim?
(c) when should D respond?
(a) when there is no specific protocol
(b) claimant
(c) 14 days - 3 months
240
PDPAC - Personal Injury
(a) When should C contact D and send Letter of Claim?
(b) How long should C wait before issuing proceedings against D?
(c) When should D respond to C and by when?
(d) How do you select experts?
(a) As soon as possible
(b) 21 days where D admitted liability/ there is full disclosure of medical docs/ C has sent D a schedule of loss and damage
(c) D or insurer should respond within 21 days (and must provide insurers name)
(d) Joint selection of experts
241
RTA Protocol (low value)
(a) where do they start?
(b) what is a part 8 hearing?
(c) what happens to complex cases?
(a) RTA protocol
(b) liability admitted but damages not agreed
(c) come out of the portal and go to litigation
242
Which country's laws apply for a claim issued in E&W?
(a) contract
(b) tort
(a) depends on the governing clause/ habitual residence of the supplier
(b) laws of the place where the damage occured
243
Disputes
(a) What is the effect of a charging order?
(b) How do you get an order for sale?
(c) What is a third party debt order?
(a) It is a form of security for the debt. It cannot repay a debt in the first instance.
(b) Need a charging order first and then can obtain an order for sale.
(c) An order will be made for any monies in the debtors bank account. This is cost effective and usually recommended for debts.
244
Disputes (96)
(a) types of interim injunctions
(b) what supporting docs do you need at HC and County Court for an interim hearing?
(c) what do you need for a freezing order and insolvency proceedings?
(a)
(i) freezing injunction
(ii) search order
(b) witness statement
(c) full and frank disclosure + affidavit, if it is without notice
245
(a) Unless order (113)
(b) Striking out (113)
(c) Summary judgement (59)
(d) Consent order (62)
(a) For non-compliance. Allows defaulting party to rectify breach.
(b) Defaulting party's claim is struck out in whole or in part.
(c) Made C/D on the basis that C/D has no reasonable prospect of success at trial.
(d) All records for orders which are reached between the parties to litigation (eg a Tomlin order is a consent order)
246
(a) Tomlin Order (63)
(b) Consent Order (63)
(a) It is a form of consent order. Used to include settlement terms (does not contain the terms itself; just says parties have agreed to a settlement). Tomlin order must be filed for approval with the court. Effect = claim is stayed/ paused.
(b) Umbrella term for orders that record settlements
247
Disputes (46)
How do you add/ amend a cause of action (eg defence)?
(a) if a doc has NOT been served - do you need permission from the court?
(b) if a doc has been served - what permissions do you need?
(a) no
(b) Either:
(i) written consent of all parties to amend; or
(ii) permission from court
248
(a) Timeline to serve a "defence to counter claim"?
(b) What is the consequence of not doing this?
(a) 14 days from the date of service of the counter claim (you can send the reply with it).
(b) D could seek judgement in default on the counter claim.
249
(a) Claim Form for service (ie sent) outside the UK - the timeline for when it should be served?
(b) When should D file an AoS/ admission if the service has been effected (ie if it being sent) from a convention territory in Europe or Member State?
(a) Within 6 months from date of issue of CF
(b) 21 days from service of the POC by C
250
Disputes
(a) What does "without prejudice" mean?
(b) What does "without prejudice as to save costs" mean?
(a) confidential and cant be disclosed in court proceedings
(b) an exception - can be disclosed in proceedings related to the allocation of costs
Note: lack of specificity does not make the document automatically disclosable, especially if it is aimed at resolving the dispute
251
When does the personal injury limitation period start for a person under 18?
Once they turn 18
252
Disclosure type and timeline (141)
(a) Small claims court
(b) Fast track court
(c) Multi-track court
(a) standard disclosure - 14 days before date of final hearing
(b) standard disclosure - based on fast track time table (PD 28)
(c) specific disclosure/ issue-by-issue disclosure acc. to timetable set
253
What is timeline to allow inspection of documents on the disclosure statement?
7 days from receipt of the written notice which is sent by the opposing side
254
(a) what docs are needed to request for a specific disclosure (144)?
(b) who do you request specific disclosure from?
(a) Form N244 + witness statement
(b) tell the other party first
If they do not provide, then apply to the court with documents in (a)
255
Disputes (186)
(a) timeline for application for permission to appeal in county court/ HC
(b) COA
(a) 21 days from original judgement decision
(b) 28 days
The period begins after day itself
256
Tort (58)
Type of damages
(a) General
i. non- pecuniary (pain and suffering, amenity, enjoyment)
ii. future pecuniary (future earnings, future medical, future pension, future transport)
(b) Special
i. past pecuniary (earnings, medical, transport, damage to property)
257
Tort (61)
(a) who can claim under Fatal Accidents Act 1976?
(b) what can you claim?
(c) limitation period
(a) this is re negligence
- spouse
- civil partner
- co- habitor
- parents
- children
- siblings
(b)
- berevement period
- funeral expenses
- loss of income (dependency re finances and services)
- loss of consortium (personal affection)
(c) 3 years from date of death/ date of knowledge
258
Product liability (137)
(a) what is the wide rule?
(b) what is the narrow rule?
(a) D v S - neighbour principal
ie you must take reasonable care to avoid acts and omissions which you can reasonably foresee
You have to prove neg + pay for cost of defective product
(b) CPA 1987
strict liability (fault w/o proof)
259
Product liability (139)
Common law defences
1. Consent
C is aware of the defense and uses the product
D must show that C knew the risk and accepted it
2. Contributory neg
Damage/ injury caused by product liability can be excluded if:
(a) non consumers: it is reasonable under ucta
(b) consumers: it is fair under CRA
3. Exclusion of liability
Can’t exclude for PI and death
260
Under CPA 1987 (137) who is:
A. Manufacturer
B. Producer
C. Ultimate consumer
D. Intermediate examination
A. Who works on the product before it reaches the consumer eg supplier, retailer, assembler etc
B. Anything capable of causing damage including anything that accompanies the product
C. Anyone reasonably foreseeable to be affected by the product
D. Someone meant to check the product before it reaches C - breaks the chain of causation
261
What are the elements you need to prove under CPA 1987 (141)
1. Damage
- death/ PI
- damage to prop over 275
(No damage to business prop)
(No damage to defective product)
2. Personal injury (includes mental injury)
3. Defect
Re safety warnings, expected use, time supplied
4. Product
