MOCK 2 - FLK Flashcards
1
Q
Parliamentary Privilege
Article 9, Bill of Rights 1689
A
- provides that proceedings in Parliament are not to be “impeached or questioned in any court or place out of Parliament“
- MPs/ Lords – free speech, immune from legal liability (notably defamation)
2
Q
What are ‘reserved matters’ remaining with Westminster
A
FISCAL POLICY AND IMMIGRATION
3
Q
Parl will seek consent of devolved assembly through:
A
a Legislative Consent Motion – but this is not legally required
4
Q
Public Processions reauires notice to be given to the police
A
6 days atleast before procession
except: traditional processions, funerals, city event customary
5
Q
Procession =/= Assembly
A
POA 1986 defines
- procession as a march or moving protest; and
- a static gathering as an assembly. Less power to control by the police.
6
Q
Is notice required to be given for assemblies?
A
NO
7
Q
police can prohibit processions entirely for max period of
A
3 months – must have reasonable grounds and these are sufficient
With the consent of Home Secretary or if in London order can be made by Commissioner of Police for the Metropolis
8
Q
How many ppl required min to qualify as trespassory assemblies
A
20 or more ppl
9
Q
Can police prohibit assemblies?
A
NO
UNLESS trespassory assembly
10
Q
What are the grounds for imposing conditions on a public meeting or assembly under the Public Order Act 1986?
A
Conditions can be imposed if there is a reasonable belief that the meeting or assembly may result in:
- Serious public disorder,
- Serious damage to property,
- Serious disruption to the life of the community, or
- Intimidation of others to do or not do something they have a right to do.
- noise (if interferes with community’s living)
11
Q
Can a company sell assets subject to a fixed charge?
A
The company can ONLY sell assets subject to a fixed charge if the chargeholder consents to the sale.
This is because the charge gives the chargeholder priority over the proceeds of sale or the asset itself.
12
Q
What steps should a company take if it wants to sell assets subject to a fixed charge?
A
1- Seek consent from the chargeholder (in this case, the bank).
2- Ensure compliance with any terms set out in the security agreement.
3- Arrange for the proceeds of the sale to be applied in accordance with the terms of the fixed charge.
13
Q
What is the measure of damages for breach of contract where defective goods are delivered and rejected?
A
The measure of damages is:
- the difference between the contract price and the cost of obtaining substitute goods, AND
- any recoverable consequential losses.
14
Q
Distinction between employer’s primary and vicarious liability?
A
- Primary Liability:
- The claim is against the employer’s own negligence.
- Vicarious Liability:
- The claim is against the employer for the tort of their employee.
15
Q
4 Duties of care owed to employees by the employer
A
- Safe and competent employees.
- Safe and proper plant and equipment.
- Safe place of work (including access and exit).
- Safe system of work (including supervision and instruction).
16
Q
What is the duty for the following scenario:
The employer breached their duty by continuing to employ a worker known for dangerous pranks.
A
Safe and Competent Fellow Employees.
(liable if they know or ought to know about an employee’s incompetence or dangerous habits)
17
Q
When can an employer escape liability for breach of duty of Safe and Proper Plant and Equipment?
A
The employer can discharge their duty by providing protective equipment and employer insists on/encourage wearing the safety equipment.
- PROVIDE
- INSIST/ENCOURAGE
18
Q
The employer was negligent for failing to ensure workers used barrier cream to prevent dermatitis.
WHY?
A
duty to provide safe system of work
= Employers must devise a safe system and ensure it is implemented and complied with.
19
Q
Employer breached duty by failing to provide protective goggles to a one-eyed employee, as blindness posed a significant risk. WHY?
A
Employers must consider employees’ personal characteristics.
20
Q
Elements of vicarious liability
A
- A Tort Has Been Committed by Employee or Quasi-Employee
- Employment or Employment-Like Relationship
- Tort Committed in the Course of Employment or Quasi-Employment (close connection test)
21
Q
Can a solicitor proceed with a transaction after submitting a suspicion to the MLRO?
A
No, the solicitor must not proceed with the transaction unless:
1- Authorisation is received from the MLRO, and
2- (If applicable) the MLRO has received a response from the relevant authority granting consent or allowing the statutory time period to lapse.
- consent is not refused within 7 working days after submitted,
- consent is refused, must wait for a further 31 calendar days (the “moratorium period”)
22
Q
Can a buyer rescind a contract for fraudulent misrepresentation if substantial changes have been made to the property?
A
No, the buyer cannot rescind the contract if restitution is impossible due to substantial changes made to the property.
(this is NOT affirmation btw)
23
Q
Where do building works on a purchased property not considered affirmation in cases of misrepresentation?
A
Building works do not amount to affirmation if the buyer was unaware of the misrepresentation at the time or did not intend to affirm the contract despite the misrepresentation.
24
Q
What order for costs can be expected when a successful party recovers damages in a straightforward claim for a fixed sum under a written agreement?
A
An order for fixed recoverable costs in favour of the successful party is likely, as this case falls under the small claims or fast track regime depending on the claim amount.
25
Identification of employment relationship - Multiple Factors (Economic Reality) Test
1. Remuneration and Mutuality of Obligations
2. Control
3. Other Contractual Factors
26
CONTROL in employment relationship
Who controls:
- The tasks to be done.
- How, when, and where the tasks are performed.
- The more control the employer exercises, the more likely it is an employment relationship.
27
Elements of Rylands v. Fletcher
1. Defendant brings and accumulates a dangerous thing.
2. For their own purposes.
3. Thing escapes.
4. Foreseeable harm if the thing escapes.
5. Non-natural use of land.
28
Defences to Rylands v Fletcher
1. Common benefit.
2. Act or default of claimant.
3. Statutory authority.
4. Act of third party.
5. Act of God.
6. Consent.
29
What steps must a solicitor take before referring a client to a business where there is a personal connection?
The solicitor must inform the client about the personal connection (e.g., that their brother is a partner at the stockbrokers) and ensure the client consents to the referral with full knowledge of the relationship.
Must not obtain commission OR account to the client if this is the case.
30
What is the correct test to apply when determining if a decision is unlawful due to bias?
The decision will be held unlawful if a fair-minded and informed observer would conclude that there is a real possibility of bias on the facts.
31
Is a solicitor obliged to disclose material information obtained coincidentallym outside of professional setting, if it is relevant to a client’s matter?
Yes, the solicitor is obliged to inform the client of the information because it is material to the client’s matter.
32
33
Requirements for contributory negligence
1- failure to take reasonable steps for own safety
2- failure made casual contribution to the damage
34
Consent defence in tort - elements
1- capacity to consent
2- full knowledge of the nature and extent of the risk
3- agreement to the risk of injury
4- voluntary agreement
CANNOT claim contributory negligence if the victim's carelessness did not cause/contribute to the injury
35
Limitations and Statutory Restrictions to consent defence
o Motorists/drivers of vehicle: Passengers cannot consent to injury caused by negligent drivers
o Business Context: Under UCTA 1977, liability for death or personal injury due to negligence cannot be excluded in the course of business contracts/course.
o consumer contract: liability for death or personal injury due to negligence cannot be excluded in the consumer contracts.
36
When does the illegality defence for tort fails?
If the criminal activity is unrelated to the tortious act, the defence may fail.
37
general damages =/= special damages
General - non-quantifiable losses or future financial losses.
Special - specific, provable financial losses up to the time of trial.
38
Deductions from damages in tort
o State benefits
o Contractual sick pay
o Redundancy payments
39
When is duty of care owed to secondary victims?
Duty will be owed to a secondary victim only if psychiatric harm was reasonable foreseeable for someone in C's position of normal fortitude.
40
When is the duty of care owed to a primary victim?
if the defendant could reasonably foresee that the claimant might suffer physical injury due to their negligence.
41
Exceptions to the General Rule for Pure Economic Loss
1. Negligent Statements
2. Wills
3. References
42
When can a single incident caused by an underlying state of affairs amount to private nuisance?
The defendant had been warned of similar issues previously, so the persistent habit of storing foil improperly created an indirect continuance. It is not the first incidence occurred.
43
Investors' Relief for Individual's CGT
* CGT rate reduction from 20% to 10% for gains arising from disposals of qualifying shares.
* Lifetime limit: £10 million of qualifying gains.
44
Calculation of Taxable Total Profits (TTP)
1- Income Profits Calculation
o Income Receipts: All revenue from trading or business activities. LESS
o Deductible Expenditure: Tax-allowable expenses. LESS
o Capital Allowances and
o Trading Losses applied as deductions.
2- Chargeable Gains Calculation
o Sale Proceeds less allowable expenditures, indexation allowances, and capital/trading losses.
45
Deductible expenditure criteria
(for corporate income)
o Wholly and exclusively incurred for business purposes.
o Not prohibited by statute
o Of an income nature
46
Are interest payments deductible expenditure
(for corporate income)
YES IF RELATED TO BUSINESS LOANS
BUT where a company has net interest expense over £2 million in the UK, the amount of interest it may deduct is restricted 30%
47
What does capital allowances apply to?
Income receipts for corporate
48
Annual investment allowances for income profits for company
* 100% deduction on qualifying P&M (new, used or refurbished) expenditure up to £1 million.
* Excess over £1 million qualifies for the standard 18% allowance.
49
Defence against wrongful trading
every step defence
D too every step to minimise the potential loss to creditors
50
Mischief rule for interpretation of a statute by the judge
consider the defect in common law which caused Parliament to pass the statute
51
To whom must the nominated officer report the evidence of money laundering?
NATIONAL CRIME AGENCY
52
Grounds to obtain permission to serve the proceedings on the D outside of the jurisdiction;
1- claim made for a remedy against a person domiciled within the jurisdiction
2- contract of dispute was made within the jurisdiction OR governed by English law
3- if claim in tort; damage was sustained or will be sustained in this jurisdiction or act committed in the jurisdiction
4- breach of contract made within the jurisdiction
53
Time limit to bring proceedings against director of insolvent company for TUV
Within 2 years of the onset of insolvency.
Insolvency is presumed.
54
Time limit to bring proceedings against director of insolvent company for preference
Within 6 months (non-connected persons) or
2 years (connected persons) of the onset of insolvency.
55
Time limit to bring proceedings against director of insolvent company for avoidance of floating charges and overdraft
Within 12 months (non-connected persons) or
2 years (connected persons) of the onset of insolvency.
56
Who can claim bereavement damages for death under FA 1976?
Eligibility:
o Close blood relations dependent on the deceased.
o Spouses or civil partners.
o Cohabiting partners of over two years.
o Parents of an unmarried minor.
57
Can an individual carry forward annual exemption for CGT purposes?
NO
Only available in that current year!
58
Can you deduct trading losses from chargeable gains for corporate tax?
Is it capped for future trading?
1- YES
2- YES
offset up to £5 million (cap)
59
Can you carry back capital losses for corporate chargeable gains?
NO
Can only carry forward
60
Companies with
TTP > £1,500,000:
Tax due in
four instalments over the accounting period and subsequent period.
61
A company is a close company if it is under the control of:
* five or fewer participators; or
* any number of participators who are also directors.
62
Exclusions from close companies:
(ie. will not be a close company if...)
- shares are quoted on a recognised stock exchange
- controlled by non-close company
63
Consequences of accepting Defendant's Part 36 offer after relevant period
The Defendant will pay the Claimant’s costs on the standard basis to the expiry of the relevant period,
and
thereafter the Claimant will pay the Defendant’s costs on the standard basis.
64
Taxis and Private Hire Vehicles (Disabled Persons) Act 2022
2022 CHAPTER 29
An Act to make provision relating to the carrying of disabled persons by taxis and private hire
vehicles. [28th April 2022]
The woman wants to know what is the significance of the date 28th April 2022 and telephones the charity’s solicitor for legal advice.
What should the solicitor advise?
It is the date the statute received Royal Assent.
65
Is a paralegal subject to regulations by an approved legal regulator?
Yes, by the SRA.
66
Can a gift recipient recover repair costs from a retailer in negligence for a faulty product?
Under Consumer Protection Act, ultimate consumer cannot recover the cost of repair or replacement of the defective product itself.
67
Relevant factor considering whether a solicitor is permitted to have dicussings with a witness:
Such conversations may influence the substance of the witnesses’ evidence.
68
How should a liquidator distribute the Net Property when there is a validly created floating charge to a bank and various unsecured creditors are involved?
Assuming there is no fixed charge holder and Liquidator's charge is already deducted.
The liquidator should ring-fence a prescribed part of the Net Property (which is a portion of the company's assets) for distribution to the unsecured creditors and distribute the balance to the bank with the floating charge.
69
Who should an English voter in Wales write to about proposed changes to Land Transaction Tax, and why?
The voter should write to her Member of the Senedd Cymru (MS) because Land Transaction Tax is a devolved matter under the authority of the Senedd Cymru.
70
Powers NOT Devolved:
- Foreign affairs and defence.
- Immigration and citizenship.
- Fiscal policty (except land/urban taxation)
- Energy policy for nuclear power and large-scale energy projects.
- Policing and most areas of justice.
- National security.
71
who is entitled to publicly funded legal advice at the police station?
ANYONE IN CUSTODY AT POLICE STATION
72
Does SHs have power to direct the director to declara dividends from existing distributable profits?
NO
73
Satisfactory quality under CRA 2015 covers:
Quality covers:
- state and condition
- appearance
- finish
- freedom from minor defects
- safety and durability
- fitness for all the purposes of supply of the good
74
A man visited a high-end jeweller's store to purchase a new watch. After browsing the collection with a salesman and trying on several high-end all-weather performance sports watches, he bought one for £5,000. After wearing it daily for a year in various conditions, the metal strap corroded, and the display malfunctioned. When he returned the watch to the jeweller, he was informed that the watch was of satisfactory quality and that the salesman hadn't specified its expected lifespan.
What implied term is breached?
Satisfactory quality, treated as a term & condition of the good under CRA 2015.
Bcs fitness for purpose & durability & safe
75
If the debt exceeds £5,000, the claimant should serve the debtor for bankruptcy with (______________) following an unsuccesful attempt at execution of the judgment debt (unsatisfied in whole or part).
a statutory demand
76
A creditor’s bankruptcy petition may only be presented if the debt is a debt (___)
which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay.
77
When a contract is frustrated, it discharges future obligations.
What can be recovered:
- Advance payments can be recovered
- money that should have been paid before frustrating event do not need to be paid
- expenses incurred before the frustration may be set off against the advance payment
ie. out of the total sum paid/payable before the event
(NOTE THAT: but no more than advance payment can be recovered in expenses - capped)
78
Where a party has gained a valuable benefit under the contract before the frustrating event, court may require benefiting party to pay (___)
a just sum for the benefit, at the discretion of the court.
79
What are deductions NOT considered to add up to remedy in a tort action?
o Insurance payouts.
o Ill-health pensions.
o Gifts or charitable contributions.
deduction can be made only for:
- state benefits
- contractual sick pay
- redundancy payments
80
Damages that could be claimed by the estate in case of death of the claiment:
Personal representative can claim both pecuniary and non-pecuniary losses suffered by the deceased UP TO THE DATE OF DEATH.
PR can also claim PSLA up to the date of death.
PR cannot claim losses arising after death or for death itself.
81
Damages available for loss of financial dependency claim:
(claims by dependents of the deceased)
- Bereavement damages for eligible dependents
- Funeral expenses
These are ADDITIONAL to the compensation.
82
If a partial payment by a third party in full and final settlement discharges the debt, can the promisor pursue the promisee for the remainder?
NO
83
What are the conditions to bring claim against the seller under SGA 1979 for breach of 'fit for purpose' term?
- Buyer buys for a particular purpose
(and would not buy if it was not suitable for that purpose)
- Seller knows or ought to know about the purpose for which the goods are bought
84
Procedural impropriety for JR purposes entails:
a public decision-maker’s failure to follow correct statutory procedure and/or to act fairly in a more general sense, as measured against common law standards.
Covers
1) failure to observe procedural statutory rules
2) duty to act fairly (common law fairness)
85
Level of fairness owed under procedural impropriety
Higher level of fairness in FORFEITURE cases.
Intermediate level of fairness in in Legitimate expectation cases.
Lower level of fairness in mere application cases.
86
When would oral hearings be required under the duty of fairness of the public decision-maker?
If the process affects lives and fundamental rights.
But not for everyday low-importance cases.
87
Direct bias of public decision-maker
Restricted to ‘financial interest’ of decision-maker. Applies to tribunals too.
The extent of the interest is irrelevant (so long as it is not too remote).
Need not be actual bias, a direct pecuniary interest suffice.
CSQ: invalidates the decision made. 'Automatic disqualification of the judge'.
88
Duty to act fairly doesn’t apply where:
- overriding concerns for national security
- emergency cases where public safety demands urgent actions
- rationing of resources cases
- a person has waived their rights to fairness
89
Types of legitimate expectation
1- Procedural: where a public body has either promised that a particular procedure will be followed, or past practice indicates that it should be followed.
If successful, it requires procedural expectation to be fulfilled.
2- Substantive: where a public body makes an assurance or a promise that has led a person to believe they will receive a particular, tangible benefit.
If upheld by the court, it will entitle a person to the 'actual benefit itself'.
90
For LE cases, the promise must be
‘clear, unambiguous and devoid of relevant qualification’
AND
the promise must be reasonably understood by those to whom the promise was made
91
Salisbury-Addison convention
The House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons which carries out a manifesto commitment.
92
Sewel convention
Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration 'legislative motion consent'.
But it is not required bcs convention is not legally enforceable.
93
Hunting act 41/42
Bypass procedure
If House of Lords go beyond their function and blocks a legislation for 1 year or above - authorities in the commons can bypass HL and pass the legislation.
94
Indirect bias test
A fair-minded and informed observer would conclude on the facts that there is a real possibility of bias in the decision-making process.
Occurs where decision-maker has a personal connection or circumstances that create a real possibility of bias.
95
When can freedom of expression be interfered with?
Art 10 ECHR - Qualified right.
Where the public authority imposes a restriction which is prescribed by law, fulfils a legitimate aim to achieve its purpose and in a proportionate way.
96
What will happen if a vote of no confidence by House of Commons is passed?
Government will resign and the PM advises the monarch to dissolve Parliament. Which will lead to a general election.
97
When should the monarch be asked for consent to pass a legislation?
If the proposed legislation affects the interest of the monarchy.
In every other case, the Royal Assent must be given by the monarch after the approval by the Parliament.
98
When does the court consider that the celebrity issuing proceedings against a newspaper/media channel does not have a reasonable expectation of privacy?
If the celebrity have acted openly in that way in a public place.
Criteria to consider:
- place/location
- consent
- general interest
99
Standard of proof in criminal cases
It is for the prosecution to prove that the defendant is guilty.
If the jury is satisfied beyond
reasonable doubt that the defendant committed the offence, it should return a guilty verdict.
100
A civil case has reached the Court of Appeal and it has become apparent that there is a lack of clarity over relevant precedent established by an earlier Court of Appeal judgment.
In which circumstances will the current Court of Appeal be able to depart from a previous Court of Appeal judgment on the same area of law?
Where it considers that the earlier Court of Appeal decision had been made per incuriam
by failing to pay due regard to a relevant statutory or common law authority.
101
effect of an obiter statement of UKSC
The Justice’s obiter statement is likely to have a significant persuasive effect relating to
the current case, especially if it related to a closely connected legal issue, but it will NOT be
binding.
102
What happens if the court has made a clear order which Home office is or intending to ignore the order?
Case relates immigration/deportation matter
The Home Secretary (executive) will be in contempt of court if the order is ignored.
This is due to 'rule of law'.
But note that the court cannot override the Home Office's decision and substitute it, it can only quash a secondary instrument or find the Home Office in contempt of court.
103
Can a law firm pay a referral fee for a personal injury claim under the referral agreement?
No, a law firm cannot pay a referral fee for personal injury claims. However, the firm can act for the client without paying the referral fee if agreed with the other firm.
It is prohibited to pay or receive referral fees in personal injury or death cases.
If the providing law firm insists on payment of fee, report it to SRA.
104
Must a law centre be authorised by the SRA to conduct litigation?
YES
Law centre must be authorised by SRA bcs the conduct of litigation is a reserved legal activity under LSA 2007.
105
What Code of Conduct breaches occur when a junior solicitor makes a drafting error due to a lack of knowledge on an update of law, and their supervisor fails to catch it?
Junior Solicitor: Breached CCS 3.3 by failing to maintain competence and stay updated on legal developments.
Supervisor: Breached CCS 3.5 by failing to effectively supervise the work done for the client.
106
A solicitor has agreed a fixed fee of £500 to draft a will for a long-standing client of the firm. Some of the provisions in the will were complex and took more time for the solicitor to draft than she originally anticipated.
When preparing a bill for the client, the solicitor notices that she has recorded fees of £700 based on her hourly rate for the time she spent on the matter.
What is the action she should take?
She must invoice the client £500 and write off the additional £200.
With a fixed fee the law firm must invoice the client for the fixed amount agreed with the client regardless of the time spent by fee earners.
In the absence of any agreement with the client to vary the fee, any time spent by fee earners in excess of the fixed fee must be written off.
107
Is (setting up) a personal pension scheme a specified investment?
YES
107
Sale/purchase of 'body corporate' exemption
Relates to sale/purchase of 50% or more of the shares
(voting shares gnr)
107
When is an advice considered as 'generic' and not a specified activity?
Generic advice when it requires only clarity as to meaning for comprehension without opinion
and
does not require opinion & recommendation (BCS it would be advising if it has opinion and recommendation).
107
Does a referral from a trusted long-term client constitute a defence for money laundering offence?
NO
107
ML offences under POCA for direct involvement
- You will be transferring criminal property from the firm’s client account and therefore potentially becoming concerned in an arrangement that facilitates the use of criminal property by your client/purchaser.
- Whilst the monies remain in your firm’s client account, you will be in possession of criminal property.
- If you do not disclose your suspicions to the nominated officer, you are also guilty of failure to disclose.
- If you tip off when a report is made, you will be guilty of tipping off offence because you disclosed that a report is made.
108
Rights of audience for solicitor
Solicitors can carry out advocacy in the Magistrates’ Court, County Court, Tribunals and Appeal Tribunals.
Solicitors are not authorised to carry out advocacy in the Higher Courts unless they have undertaken training and passed relevant assessments.
108
Composition of Crown Court hearing appeals
Circuit judge sits with 2 lay magistrate to hear re-trials and decide on the sentence.
109
Exception to the solicitor's duty of making their client aware of all information material to the client's knowledge (which they have knowledge)
A solicitor should not make a client aware of information material to their matter if the reason the solicitor has knowledge of the information is because it was in a PRIVILEGED document which was MISTAKENLY disclosed.
The solicitor should not read the doc and should return the email to the supplier’s solicitor, as the doc/email was sent by mistake
110
Duty of confidentiality lasts (___)
FOREVER
The duty will be owed to previous - current - and future clients.
Whether the client is no longer represented by you is irrelevant.
111
Why is there no conflict of interest when working on a matter for a former opposing party in an unrelated case?
There is no conflict of interest because:
1- The two matters are unrelated (eg. a personal injury case and a factory purchase).
2- The information from the previous case is unlikely to affect the new case (eg. factory purchase).
3- HOWEVER - You must still maintain your duty of confidentiality to the former client.
112
For factual causation we employ 'but for' test.
How is it satisfied?
Either
- but for the tort, the harm/damage wouldn't be caused
or
- on balance of probabilities = must be over 50%
113
Where to use 'material increase' in risk test
(causation)
Confined to industrial disease cases, namely mesothelioma and lung cancer caused by exposure to asbestos.
Used where medical evidence cannot establish that the breach materially contributed to the harm BUT can prove it increased the risk of harm.
Focuses on whether the breach increased the likelihood of harm.
It's applicable only to industrial disease, single agency cases.
Single agency means that there is only one causal agent.
114
Where to use 'material contribution' in risk test
(causation)
Applies to sequential cumulative and simultaneous cases.
If the defendant’s breach made a material (ie. more than negligible) contribution to the harm, factual causation is satisfied.
Can be applied to multiple agency cases and to medical/clinical cases where both the underlying state and negligent care operated together.
Where medical science cannot establish the probability that but for the breach death would not have happened.
Focuses on the breach's actual material contribution (ie. more than negligible contribution) to the harm.
115
What is the limit to 'assignment' ?
(privity of contract)
Can only assign benefits, it is not possible to assign obligations.
Original party will be sued for unperformed/breached obligations under the contract.
116
When does common mistake void the contract?
Both parties misunderstood/misapprehended AND mistake is sufficiently findamental to affect the validity of the contract.
It does not operate where
- mistake not sufficiently fundamental
- one party is at fault
- contract makes provision for the issue
117
Revocation of unilateral offer to the whole world is only effective if the promisor (___)
takes reasonable steps to bring the revocation to the attention of all those who may have read the offer.
118
common mistake =/= mutual mistake
Common - both suffered from misapprehension and sufficiently fundamental issue to void the contract
Mutual - negotiated at cross purposes (mistaken abt different things)
119
When and how does think skull operate in negligence cases?
If the type of damage suffered was reasonably foreseeable as a result of the negligent act.
If that is established, the D is liable for the full extent of those damages, even if those damages have been aggravated by the claimant's own weakness.
120
Standard of care expected of a child
Reasonably competent child of the defendant's age.
121
What does duty to inform a patient of a material risk entail?
Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
A material risk is one which a reasonable person in the patient's position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to. This is so the patient can give their informed consent.
ONLY material risks should be informed.
122
When is a duty of care owed for pure economic loss caused by a negligent statement?
- reasonable reliance
- voluntary assumption of responsability
- special relationship of trust & confidence
(satisfaction of one of the tests above suffice)
123
What is the reasonable reliance test to recover pure economic loss caused by 'negligent statement'?
1) RELIANCE - C° relied on the D's advice (factual)
2) REASONABLE - It was reasonable for C° to rely on the advice
Reasonable reliance factors:
- special skill or knowledge
- general context of the advice
- nature of advice (complexity and importance)
- potential risk to the claimant
- availability and practicality of obtaining 2nd opinion
3) KNOWLEDGE - D° knew or ought to have known that C° was relying on their advice
124
What is the 'voluntary assumption of responsibility' test to recover pure economic loss caused by 'negligent statement'?
1) Communication - Advice is communicated to C°
2) Purpose - D° knew the purpose of advice
3) Reliance - D° must know or reasonably believe that C° will rely on the advice without independent inquiry
4) Detriment - Claimant must act upon the advice to their detriment
You can also apply CAPARO test:
- foreseeability of harm
- proximity
- fair, just & reasonable
Relationships equivalent to contract, only consideration is missing to form an actual contract.
125
Where does a 'special relationship of trust and confidence' occur to recover pure economic loss caused by 'negligent statement'?
This relationship typically arises in professional or fiduciary contexts.
- trustee & benef
- solicitor & client
- investment advisor & client
- Director & company
- Doctor & patient
126
A cyclist is involved in a serious road traffic accident due to the negligence of a bus driver.
The cyclist suffers brain damage as a result of the accident and can no longer work as an accountant.
What remedies can the cyclist claim in tort of negligence?
1- special damages
Lost earnings and medical expenses up to the trial.
2- general damages
Pain, suffering, and loss of amenity for brain damage.
Lost earnings post-trial.
Medical expenses post-trial.
'''''(and any future costs relating eg for adapting his house)
127
A company owns a warehouse where it stores several hundred mattresses, before shipping them to various shops around the country to be sold.
A fire starts accidently at the warehouse and, given the flammability of the mattresses, the fire quickly spreads onto the neighbouring property causing substantial damage.
Will a claim by the neighbour against the company under the rule in Rylands v Fletcher? Why?
NO
Because there is no escape.
Mattresses did not escape.
- Damage must be foreseeable in case of the thing accumulated escapes.
AND
- storage of mattresses (accumulation of the thing) is not a non-natural use of land.
128
How can an occupier discharge of its duty of care to the visitor by warning?
There must be an adequate warning of any danger which ensures to indicate
- what the danger is
- where it is
- how to avoid it
129
After consuming large quantities of alcohol, two friends drove home together from the pub (one was the driver, and one was the passenger). The passenger encouraged the driver to drive at 90mph in a 30mph zone, and to swerve across the road to scare other drivers driving in the opposite direction.
The driver collided with another car and was killed. The passenger suffered from brain damage.
What defence (if any) is most likely to succeed if the passenger brings a negligence claim against the estate of the driver for their brain damage?
ILLEGALITY
- contributory negligence possible but illegality will likely succeed
- consent is not available in road user cases
- illegality is satisfied bcs:
1) offence = dangerous driving (aims to protect public safety); and
2) denying the claim would be a proportionate response (BCS the offence is very serious and was intentional)
3) there is a causal link between illegality and negligent driving (close connection)
130
summary assessment can be used for a hearing which lasts (___)
1 day
o Requires submission of a statement of costs on Form N260 at least 24 hours before the hearing.
o Fast-track cases or interim applications less than 1 day durration
131
When will a bill come into effect and become law?
From the grant of the Royal Assent by the monarch that day from midnight the same day.
UNLESS a commencement order is made by a government minister (made by a minister).
132
Can a contract be frustrated if later becomes apparent that the exitsing obligation is more timely and expensive to perform?
NO
A contract is not frustrated merely because it becomes more difficult or expensive to perform.
Cannot be frustrated if: more onerous due to unforeseen events, including mere hardship, loss or inconvenience, which made a contract more onerous than was anticipated.
133
After proceedings been issued, the court may order a new party to be added to a claim where:
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
AND consider overrifing objective!
134
A person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if;
[under CRTPA 1999]
the contract EXPRESSLY provides that he may or the term purports to confer a BENEFIT on her. And it was not intended by the parties for the contract to be unenforceable by TP.
- TP must be expressly identified in the contract by name or identifiable by description
- TP need not be in existence when contract been entered into but still identifiable (member of a lcass/particular description)
135
ELIGIBLE INDIVIDUALS TO CLAIM ON BEHALF OF EXECUTOR/ADMINISTRATOR OF THE DECEASED'S ESTATE
UNDER FATAL ACCIDENTS ACT
1- a spouse or former spouse of the deceased, or person who was living as the spouse of the deceased, in the same household immediately before the date of the death and had been so living for at least two years;
2- any parent or other ascendant of the deceased or person treated by the deceased as his parent;
3- any child or other descendant of the deceased or any person who has been treated as a child of the family in relation to any marriage of the deceased; and
4- any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
136
WHO ARE ENTITLED TO CLAIM BEREAVEMENT DAMAGES
FATAL ACTS
Dependants
- any dependants of the deceased to claim for any losses suffered as a result of the death.
- close blood relations and those related by marriage or who have cohabited for over two years
137
Indirect discrimination under EA 2010
A person indirectly discriminates against another when they apply a provision, criterion, or practice, which is discriminatory in relation to a protected characteristic of the other person.
138
The time for complying with a judgment or order for the payment of an amount of money (including costs) is
within 14 days of the date of the judgment or order, unless it specifies a different date for compliance, or where the CPR specifies a different date for compliance, or if the court has stayed the proceedings or judgment (CPR 40.11).
Simply applying to stay the judgment is not sufficient. Must pay still.
139
The buyer will have no cause of action against the seller under SGA 1979 if:
contract of sale excluded application of an implied term, provided that it satisfies reasonableness test.
140
Language preference in the County Court in Wales?
Proceedings may be issued in Welsh and the court will pay for an interpreter if necessary.
The courts must treat the Welsh and English languages on a basis of equality in the conduct of public business and the administration of justice in Wales.
141
Judges, magistrates, and tribunal members are required to take two oaths (or affirmations) when they are sworn in.
what are they?
collectively known as judicial oath;
The first is the oath of allegiance to the reigning monarch, and the second is the judicial oath. (Assuming their position as judge by being sworn in)
INSTEAD of taking the oath, judges may opt to make a solemn affirmation.
142
Can any party call an expert or put in evidence an expert’s report without the court’s permission?
Why?
NO!
BCS expert evidence shall be restricted to that which is reasonably required to resolve the proceedings
143
What is the rule that applies where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence?
normally be given for evidence from only one expert on a particular issue
144
A farmer grew a special type of plant containing milk used in the skincare industry. The plant milk could be toxic to animals if harvested in large quantities.
Due to a malfunction, the farmer's harvesting equipment accidentally released the plant milk onto the neighbouring land owned by a local veterinarian.
The milk seeped into the veterinarian's land, causing the death of her horses and damaging her prized roses due to changes in the soil's pH balance.
Is the farmer liable under the rule in Rylands v Fletcher?
- The farmer's liability is limited to the death of the horses, as it was foreseeable due to the known toxicity of the plant milk to animals.
- The plant milk, which is a certain type of milk from the special plants grown by the farmer, was brought onto the farmer's land and is likely to cause harm if it escapes.
- This makes it a non-natural use of the land.
- The death of the horses would be recoverable as it was foreseeable, given that the milk is known to be toxic to animals in large quantities.
However, the damage to the roses and the soil would not be recoverable as the risk of the milk altering the pH balance of the soil was not known and therefore unforeseeable if it escapes.
145
Timeframe within which detailed assessment application for bill of costs delivered by the solicitor could be challenged?
The client must make an application within one month of receiving the solicitor’s bill and before expiry of 12 months of delivery. Court makes an order at its discretion.
146
A local authority has released an official document stating that the public high school in its jurisdiction has a policy of reserving a certain number of seats each year for students living within a specific radius of the school. Upon this assurance from the local authority, a family moved to a house within the specified radius to increase their child's chances of securing a place in the school. After the family had moved, the school abruptly changed its admission policy without prior notice, no longer reserving places for local students. The school's justification for the change was vague and unsupported by evidence. Many other families who made similar moves were also affected. Despite numerous complaints, the school refused to reconsider the policy change.
On what grounds this case can be challenged for judicial review?
A legitimate expectation arises when a public authority, such as the local authority in this case, has made a promise, assurance, or representation to an individual or a group of individuals. In this scenario, the local authority issued an official document stating that the public high school had a specific policy for reserving places for local students. This is an assurance that families, including the one in question, reasonably relied upon - to their detriment.
147
At the CMC, the court requests specific documents that the client possesses at home. The court directs that these documents be sent to the opposing party.
The solicitor assures the court that the documents will be provided, though no specific timescale for their provision is agreed upon.
Considering that the trial is scheduled in 3 months, when should the solicitor provide the documents to the court?
Within a reasonable time.
An undertaking must be fulfilled within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time.
148
The Prime Minister (PM) is contemplating appointing a former executive and old school friend to the position of (fictitious) Secretary of State for Business and Industry, and potentially as a Cabinet member as well. However, this friend is not currently a Member of Parliament (MP).
What would be the best advice for the PM?
Ministers, by convention, should be members of either the House of Commons or the House of Lords to ensure accountability to Parliament.
Appointees often receive life peerages and can vote in the Upper House even post-ministerial tenure.
149
A solicitor acts for a private limited company, which has been a client of their firm for more than 10 years.
The client is about to sign a new contract with a value of £50M. The transaction is very complex and is unusually large to the type of transaction the client is usually involved in.
What level of customer due diligence should the firm carry out?
The firm should carry out enhanced customer due diligence, as the transaction is complex or unusually large to the normal activity of the client. The obligation to conduct due diligence applies to both existing and new clients equally.
150
Enhanced CDD to be applied where:
- where the transaction is complex;
- where the transaction is unusually large; or
- where there is an unusual pattern of transactions, or the transaction or transactions have no apparent economic or legal purpose
Whether a transaction is “complex” or “unusually large” should be judged in relation to the normal activity of the practice and the normal activity of the client.
151
An order for specific disclosure
Must be applied.
An order that a party must disclose documents or classes of documents specified in the order, carry out a search to the extent stated in the order and/or disclose any documents located as a result of that search.
152
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, practice direction or court order.
The consequence of failing to comply with an unless order is automatic strike out.
However, the party in default can apply for relief from sanctions.
153
Who may be sitting at the trial in the magistrates’ court?
District Judges (Magistrates’ Courts)
or
Lay Magistrates and law clerk
154
Certain types of companies are specifically excluded from applying for statutory moratoriums.
What are they?
these include financial service firms (such as banks and insurance companies) and companies which are party to capital markets arrangements of over £10 million.
155
The Retained EU Law (Revocation and Reform) Act 2023 grants UK ministers considerable discretion to amend, revoke, or replace assimilated law through delegated powers.
Meaning?
Allows ministers can make changes to the legislation without the need for a new Act of Parliament, provided these changes are within the scope of the powers outlined in the Act.
notably in: current UK policy objectives, such as implementing stricter environmental standards/urbanisation
156
Under the (fictional) Football Fans Act 2015, it is an offence to interfere with play within the vicinity of a prohibited place. The defendant was arrested after running onto the field of play. The court dismissed his defence that he was not in the vicinity of a prohibited place, arguing that he was actually on the field of play, and thus in a prohibited place, rather than merely within its vicinity.
Which of the following statements best describes the rule of interpretation applied by the court?
GOLDEN RULE
157
A solicitor is representing a client in a conveyancing transaction involving the purchase of a leasehold property. As part of the process, the solicitor arranges the transfer of a share in a management company associated with the property.
The solicitor's fee for the conveyancing work covers all the services provided, including arranging the share transfer.
Can the solicitor rely on the Article 67 RAO exclusion (‘reasonably necessary’) under the FSMA in this situation?
Yes, as long as the solicitor's overall fee for the conveyancing work does not include a separate remuneration for the share transfer.
158
summary assessment of costs
used for fast-track proceedings and where a hearing has lasted no more than 1 day - at the date of hearing of an interim application in one day OR in fast-track cases (parties must file a statement of costs at least 24h of the hearing)
159
interim costs order assessment
Types of costs in interim are
- costs in any event (in relation to the interim application only),
- no order as to costs,
- costs in the case (costs of the application must be paid by the party who will pay the party who pays the costs at the end of the case)
160
unless the court orders otherwise, the costs order should be complied with within
14 days of the day of the judgment or order or date of certification for order of costs.
161
Binding ADRs
- arbitration
- expert determination
162
A court can penalise a party by ordering them to pay the costs or by reducing costs but only if
the refusal to engage in ADR was unreasonable.
163
Consent order effect
stays the proceedings and renders the terms of the settlement binding.
The Schedule will be recording these terms.
164
Consent and Tomlin orders take effect when
court approves the settlement.
165
Personal injury claims
- acknowledgement
- full letter of response/confirm
- within 21 days
- within 3 months
166
The necessary step to serve the claim form must be completed before
12.00 midnight on the calendar day four months after the date of issue of the claim form.
167
The particulars of claim must be served
with the claim form or within 14 days of service of the claim form (and also within the four month period from issue of claim form).
If C cannot serve in this period then must apply to the court for extension of time but must have good reasons for extending and application must take place before the deadline is reached.
Extension after the deadline will only be granted if the court failed to serve the CF, or C has taken all reasonable steps to comply and either-way the application has been made promptly.
168
Relevant steps and DDS for claim form
DDS deemed served on the 2nd business day after completion of the relevant step.
Relevant steps:
- first class post – relevant step is to post the claim / the day of posting the claim form
- personally on the D
- delivering or leaving the document at a permitted address – relevant step is to deliver to/leave with D
- first class post – relevant step is to post the claim / the day of posting the claim form
- document exchange (DX) – relevant step is leaving with the DX service
DDS for/
* if Post or DX used: deemed served the second day after posting, if a business day (otherwise next business day)
* if instant method: if sent/served before 4:30 pm on business day then on the same day OTHERWISE next business day.
After the service of the CF, C’s solicitor must file a certificate of service at court within 21 days of service.
169
D may give notice in writing and withdraw admission:
1- before commencement of proceedings during the initial consideration period or at any time if C agrees. No need for court’s permission.
2- after commencement of proceedings: either all parties consent or with the court’s permission.
170
Time limits – Counting Time for Responding
RULES
RULE 1: Clear days – We do not count the day on which the period begins.
(eg DDS of PoC, is dat 0)
RULE 2: Clear days – end of period defined by reference to an event, don't count the date of the event. (eg. trial)
RULE 3: Clear days – days which do not count
- if specified period is 5 days or less: weekends, bank holidays, Christmas day, good friday do NOT count
- if over 5 days, weekends count
RULE 4: Deadlines on which the office is closed
- where deadline relates doing any act at the court office, act uis then treated as on time if done on the next day in which court office is open
(eg. after serving PoC, the C must file within 7 days of the service on the D file a copy at court.)
171
If a defendant against whom a default judgment has WRONGLY entered can be set aside. IF:
The court must set aside the DJ if:
- the claimant was never entitled to it in the first place (eg. payment already paid) OR
- limit started to run but haven’t been expired OR
- because the D has responded appropriately and this was disregarded /unknown by the applicant.
172
if Default judgment is CORRECTLY entered, D can still apply to have that judgment in default to be set aside, but D has to show:
- that D has a real prospect of successfully defending the claim; or
- it appears to the court that there is some other good reason why judgment should be set aside or the defendant should be able to defend (eg. payment already made)
+ any delay in making the application will make it less likely to succeed.
173
Notice on the respondent for summary judgment must be given:
given at least 14 days' notice of:
(1) the date fixed for the hearing
(2) issues proposed and will be decided by the court
When counting days BCS ending date is trial do not count the day of trial;
so if date of the hearing is on 28th,
last day would be 27th and you'd need to go back 14 days
174
It is appropriate to require proof of the paragraph concerned/whole statement of case if
the D is unable to admit or deny the allegation to lack of knowledge or extent of the csq.
175
If the statement of case has been served, a part may amend it only;
* with the written consent of ALL the parties to the litigation; or
* with the permission of the court
(if the limitation period expired only with permission of the court)
Either written consent of both parties OR permission of the court, but not both!
Some exceptions apply
176
D° can require further information (Part 18 procedure CPR 18) on
NEED TO KNOW BASIS
* part 18 procedure is confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand opponent’s case
177
N211 claim form
additional claim started by issuing N211
--- if without permission of the court CF must be served within 14 days of issue
--- if not court will give directions
Must be supported by evidence.
178
For contribution or indemnity from existing person, is permission of court required?
No permission
-if filed and served at the same time as/with the defence; OR
- if the additional claim is made against a party added to the main/substantive claim at a later date – within 28 days after that party files its defence
permission required
- at any other time
179
The court may add or substitute a party only if :
1- relevant limitation period is current when proceedings started AND
2- addition/subs° is necessary
NECESSARY
- if mistakenly named in the CF, or
- claim cannot be carried out properly without them, or
- original party died or made bankrupt & their interest/liability passed to the new party
180
When the claimant has already served, issued and commenced proceedings against D1, served the CF on them (PoC too), to remove, add or substitute any party to the litigation, the court's permission will
be REQUIRED
181
Normal interim applications -
When should the notice be served on the respondent? (application notice N244)
When should the statement of costs be exchanged and filed?
Service on respondent: as soon as practicable but not less than 3 clear days before the hearing.
(after service further evidence can be provided by the R, and a reply can be served asap by the A)
Statement of costs: not less than 24h before the hearing.
182
Without notice interim procedure is permitted only if:
(factors)
- there is exceptional urgency
- overriding objective is best furthered doing so
- all parties consent
- court order, rule or practice direction permits
- a date for hearing is fixed and the party wishing to make the application doesn’t have sufficient time to serve an application notice
( in this case applicant shall still inform the other party and the court (in writing if possible) ASAP of the nature and the reason for application)
Any application to set aside must be made within 7 days of the order being served on the respondent.
183
Grounds and timeline for summary judgment
(ps. court consider the merits unlike DJ)
1- Issue
- form N244, supporting evidence, draft order, fee
Grounds:
Respondent has no real prospect of succeeding the claim/issue AND there is no other compelling reason.
2- Service:
- form N244, evidence, draft order, NOTICE OF HEARING DATE
- SERVICE AT LEAST 14 DAYS BEFORE THE HEARING
3- further evidence
Respondent - at least 7 days before hearing
Applicant's reply - at least 3 days before hearing
4- statements of costs
NOT LESS THAN 24H BEFORE HARING
5- Hearing
CAN APPLY THE COURT
- C after acknowledgement/defence filed
- D once proceedings have commenced
184
INTERIM PAYMENT TIMELINE
Can only be applied by Claimant.
1- Issue
- form N244, supporting evidence, draft order, fee
Grounds
* D admitted
* Judgment given in favour quantum to be assessed
* C would obtain judgment for substantial amount of money against D
2- Service:
- form N244, evidence, draft order, NOTICE OF HEARING DATE
- SERVICE AT LEAST 14 DAYS BEFORE THE HEARING
3- further evidence
Respondent - at least 7 days before hearing
Applicant's reply - at least 3 days before hearing
4- statements of costs
NOT LESS THAN 24H BEFORE HARING
5- Hearing
CANNOT APPLY before the end of period to file acknowledgement
185
When can interim payment order be disclosed to trial judge?
AFTER all questions of liability and quantum have been decided.
186
Security for costs can be applied only by
Applicant in position of Defendant.
it must be:
- just to make an order
- min one prescribed conditions satisfied
Normal interim application timeline:
application notice N244 must be served as soon as practicable but not less than 3 clear days.
187
Fixed Costs
o Apply to small claims, fast-track, and intermediate-track cases.
o Amounts are set by rules based on complexity bands and case stages:
- Fast Track: Refer to Table 12 in PD45.
- Intermediate Track: Refer to Table 14.
188
Detailed assessment of costs
Used when costs are not agreed or cannot be summarily assessed.
1. Receiving party serves a Notice of Commencement and a detailed bill of costs on the paying party.
2. Paying party serves points of dispute within 21 days.
3. If no agreement, receiving party requests a detailed assessment hearing.
4. Costs officer determines the amount.
Cost must be paid within 14 days of judgment or order made or from the date of certificate.
189
Grounds for strike out
1. SoC discloses no reasonable ground for bringing or defending a claim
(discloses no claim or defence as a matter of law or without reasons)
2. SoC is an abuse of court’s process or otherwise likely to obstruct the just disposal of proceedings
(multiple issuance of the same claim, vexatious litigant, no intention to take case further)
3. there has been a failure to comply with a rule, practice direction or a court order.
(refusing to allow inspection, late service, failure to attend court, unprepared for the hearing)
Can apply for relied from sanctions after struck out.
190
Relief from sanctions: 3 stage approach
(ps. application must be supported by evidence)
1- if the breach is neither serious nor significant, the relief should be granted.
(serious if imperils future hearing dates or disrupts the conduct of litigation)
2- if serious/significant, consider why the default occurred.
3- having considered the reasons for default, court should evaluate all the circumstances of the case.
191
FORMS of directions questionnaire
* Form N180 – small track
* Form N181 for fast, intermediate and multi-track
Parties must file and serve a DQ no later than the date specified on the Notice of Proposed Allocation.
In multi-track cases, automatic costs management: parties must file a costs budget with the DQ – part of cost management regime.
192
CMC filings
- Budget: at least 21 days before CMC
- Disclosure report: Not less than 14 days
- Draft Directions & Budget discussion report: at least 7 days
o costs budget filing (Precedent H)
o budget discussions and report (Precedent R)
193
- witness
- FSMA
- occupiers liability
- contract
- PL
- PRODUCT DEFECT MANUFACTURERS
- PCON
- EU : dates
- summoning witness
- dependant's acts
- limitation
194
