MOCK SQE FLK 1 Flashcards
FLK 1
1
Q
What cost order would be made by the judge if both C’s and D’s Part 36 offer fails?
A
A normal costs order will be made if none of the offer’s trigger is satisfied. Unsuccessful party pays successful party’s costs.
2
Q
Which court is appropriate to issue a claim with a value lower than £100.000 which requires extensive expert evidence?
A
County court
3
Q
When can a part 36 offer be shown to the trial judge?
A
After the case is decided.
4
Q
If a document is no longer in a party’s control, should it be disclosed?
A
Yes, but the party disclosing that doc can refuse inspection.
5
Q
If a value of claim is lower than £25k but anticipated to take 2 days for trial, which track should the claim be allocated to?
A
Intermediate track due the length of trial.
5
Q
What is a without prejudice privilege? Give an example.
A
Privilege for the purpose to attempt genuinely to settle the dispute. Often marked ‘without prejudice’.
ex: Part 36 offer.
6
Q
When does the limitation period starts to run if a person is disabled for a personal injury claim?
A
A person under 18 years old is under a disability. The limitation period starts to run when the disability ends. The limitation for PI claims is 3 years starting to run on the date the cause of action is accrued.
7
Q
What are the limitation periods to issue a claim?
A
- contract: 6 years from date of cause of action occurs (the date of the breach of contract)
- tort: 6 years from date of acknowledgement (when in a position to know) or cause of action
- Personal Injury: 3 years from latest of date of death/date of knowledge – time starts running from the day after the cause of action accrued
- Fatal Accidents: 3 years from latest of date of death/date of knowledge of dependant
- Neg (other than PI): latest of:
–> 6 years from date of cause of
action
–> 3 years from date of knowledge - Contribution: 2 years from time right to contribution arises.
8
Q
What are the requirements to satisfy for liability under fraudulent trading
INSOLVENCY VOIDABLE TRANSACTIONS
A
Any person or director
who is knowingly party to carrying on of any business of the company; AND
with the intent to defraud creditors for any fraudulent purpose.
9
Q
If both claim form and Statements of case are filed and served. Whose consent is required to add an additional defendant?
A
Only permission/consent needed is from the COURT
10
Q
When should a request for further info° must be made?
A
If defence or any statement of case (PoC, defence etc) prevents the party from understanding clearly the statements.
Eg. defence is not understandable due to extensive abbreviations and technical language.
11
Q
Which judge should be applied for permission to appeal when County Court Circuit Judge refuses permission to appeal?
A
High Court Judge
12
Q
What are the steps to consider under American Cyanamid Guidelines to order an interim injunction?
A
- Is there a serious question to be tried?
o The applicant must show that the case is not frivolous or vexatious and that there is a genuine issue for the court to decide. If this condition isn’t met, the injunction will be refused. - Would damages be an adequate remedy?
o For the applicant: If damages would compensate the applicant sufficiently for the harm, an injunction may not be necessary.
o For the respondent: If the injunction is later found to have been wrongly granted, the court will consider whether the respondent can be compensated adequately by damages. - Where does the balance of convenience lie?
o If damages are not sufficient for either party, the court evaluates which party would suffer the greater injustice if the injunction is granted or denied.
13
Q
What should you do if your client refuses to disclose a doc/evidence that is under the duty to disclose?
A
You should first advise your client to disclose the document.
If client continues to refuse, you should cease to act.
14
Q
Did an actionable misrepresentation occur if the claimant does not see or hear the attempted misrepresentation?
A
Depends:
Misrepresentation can be made by conduct, if ONLY they are induced by it.
If the C did not see or hear the attempted misrepresentation, they are not induced by it and therefore, there would be no actionable misrepresentation.
15
Q
Can an offer be accepted at any time to form a contract?
A
NO - an offer remains open until it is revoked or lapsed. If the offeror does not specify an expiry date for the offer, the offer will lapse after a reasonable time.
(eg. a sale of ring offer would lapse few months)
16
Q
How do we establish an ‘agency’ relationship to circumvent the doctrine of privity of contract?
A
1- The principal named and it is clear that the agent is contracting on behalf of the principal.
2- The agent should be authorised to act as an agent (requisite authority to bind the principal)
3- consideration moved from the principal (ultimately the principal pays for the contract)
17
Q
When is a contract formed?
A
When the offer is accepted by the offeree mirroring the terms of the offer.
18
Q
When is the contract made when offeree accepts via email (or any instantaneous means)?
A
When the acceptance email is received.
NOT when it’s made.
19
Q
When a revocation of an offer cannot be made for a contract?
A
When the contract has been accepted.
20
Q
If a practical benefit is provided by the completion of a project on time but to do so the party made a demand for an additional sum threatening the innocent party that in case of non-payment of the extra money they would not complete their obligation under contract. Is the contractor asking for additional money entitled to that extra sum?
A
NO if made under duress.
IF the demand for extra money to correct miscalculation will not be viewed as a demand in good faith for the purposes of duress.
The party paying must protest this and must be under pressure of some sort (eg. must finish the project for clients at that specific time).
21
Q
What is the remedy for a fraudulent misrepresentation?
A
Rescission of the contract.
Fraudulent misrepresentation occurs when the party knowingly covers up or hides or conceals a fact/info.
22
Q
What happens if there is an unilateral mistake between the contracting parties?
A
Contract is void. (if a reasonable person would think that there was no agreement)
23
Q
difference between unilateral mistake and common mistake
A
if one of the parties knew and other didn’t albeit there is no fraudulent intention, it would amount to unilateral mistake.
If both parties are mistaken. It would be a common mistake.
24
A caterer engages a cake shop to supply 100 cakes at a total cost of £100. Due to a fault with their oven, the cake shop only makes 60 cakes. The caterer collects the 60 cakes.
Is the cake shop entitled to any payment?
YES. The cake shop partially performed the contract and voluntary acceptance has
occurred by the caterer.
Because there is voluntary acceptance of partial performance.
25
Can silence amount to misrepresentation?
NO
26
The defendant started by accident a fire due to falling asleep. The flat upstairs has burned. He was found liable. He escaped from the fire.
GR = there is no duty to the omission
Exception applies because D did not take reasonable steps to mitigate.
27
The local authority assigned a psychologist. The physiologist misdiagnosed the child's ADHD with dyslexia. Is local authority liable in tort?
Yes. Duty of care owed by the public authority BCS assumed responsibility for a child's educational services and therefore owed a duty to provide education appropriate to the child's needs.
27
What is the applicable standard of care expected from a learner driver?
Act, not the actor. The standard applied is 'competent driver'.
28
What is the standard expected from the junior doctor operating a medical operation?
Junior doctor must mee the standard expected for the professional task that they are performing, regardless of experience.
A junior solicitor drafting wills would be evaluated with the standard of competent private solicitor drafting wills.
29
A householder carries out trivial repair work on her property, including the door handle on her front door. The handle has not been fixed properly. When the householder's friend comes over, he pulls the handle and falls and injures himself. What is the standard of care expected of the householder?
The standard applying to the householder would be: a competent amateur carpenter.
Householder is not a professional.
30
Junior doctor misdiagnosed a patient which led to the patient suffering a permanent disability. Whilst diagnosing he sought advice from his supervisor doctor and the A&E doctor.
Is he liable for medical negligence?
Junior doctor would not necessarily be in breach if they sought appropriate advice from a senior colleague.
31
Professional standard of care
Standard of ordinary reasonable man exercising and professing to have that special skill.
It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
32
Standard of applicable duty for children
Children are judged against the standard of a reasonable child of their age carrying out the same act.
33
standard of care for people suffering from illness and disability.
Standard is adjusted where D suffers from an illness they were reasonably unaware of.
34
The blind friend comes over and falls off from the window which was open and broke his leg. Is the homeowner liable?
Yes. He shouldn't have left the window open.
This is BCS the D must tailor their conduct in light of the characteristics of people they know might be affected by their actions.
This is due to 'likelihood of harm'.
35
If the risk of injury was small even minimal, but the consequences if the risk was realised were severe. D did not take the precautions, and C suffered severe consequences. Is the D liable?
YES. Due to the 'magnitude of harm' factor. D breached his duty.
36
What does medical professional need/must ensure patients are aware of?
They must ensure that patients are aware of:
- material risks in recommended treatments; and
- reasonable alternatives or variant treatments
For the patient to give 'informed consent".
If not obtained, failure to advise in relation to risks to medical treatment means breach of duty.
37
Relevant factors to establish breach of duty to consider:
- magnitude of harm
- likelihood of harm
- practicality of precautions
- benefit of conduct
- common practice
- state of the art
38
Leapfrog process
* This process only applies to appeals from a High Court Judgment, bypassing the Court of appeal. HC judgment will be appealed directly to Supreme Court.
* For appeals that would ordinarily be heard by the Court of Appeal, the destination of a leapfrog appeal is the Supreme Court (UKSC).
39
How are High Court Judges referred to verbally?
High Court Judges referred to verbally as Mr/Ms/Mrs Justice (surname). In writing referred as (Surname) J in writing. But if they are procedural judges they will be called Masters.
40
Statutory interpretation - linguistic presumptions
- closed list 'expressio unius est exclusio alterius'
- 'the same kind' or 'genus' called 'ejusdem generis'
- word is known by the company it keeps 'noscitur a sociis'
41
Public inquiries
major investigations of significant public interest, convened by gvt dpts, given special statutory powers. Under Inquiries Act 05 - inquiry has powers to compel witness/statutory framework for appointment of a chair and inquiry personal/taking of evidence/production of report etc.
Statutory inquiry could be ordered of there are exceptional features to the incident (death) or there has been a spate of incidents suggesting systemic problems in police handling of such matters (police killing a person).
42
CIVIL JUDGES (seniority order: low to high)
* Deputy district judges (at the bottom, they are part time judge) “Judge”
* District judge “Judge”
* Recorders (equal to district judge – out of London doing High court work) “Your honour”
* Circuit judge (outside of London, traditionally itinerant around UK travelling to resolve disputes) “Your honour”
* High court masters (deal mostly with smaller hearings) “Judge”
* High court judges “My Lord/ My Lady”
* Court of Appeal judges --- master of the rolls (most senior in court of appeal), president of KBD, president of fam° division and Chancellor of the Court of Appeal “My Lord/Lady”
* Supreme Court judges “My Lord/ My Lady”
* President of Supreme court “My Lord/ My Lady”
* Lord Chief Justice “My Lord/ My Lady”
43
What are reserved legal activities that require authorisation by SRA?
- Rights of audience
- conduct of litigation
- reserved instrument activities
- administration of oaths
44
What are reserved legal businesses that require authorisation by SRA?
- reserved legal activities
- immigration services (unless authorised by OISC)
- claims management services (unless authorised by FCA)
- regulated financial activities (unless authorised by FCA)
45
Where do victimisation occur under EQUALITY ACT
1- V done a protected act
2- D believed V has done to will do a protected act
Protected acts
- bring proceedings under EA 2010
- giving evidence under EA 2010
- do anything under EA 2010
- alleging that someone violated EA 2010
46
When can an employer/law firm escape liability from indirect discrimination under EA 2010?
if PCP (provision, criterion, practice) is proportionate to achieve legitimate aim.
47
When does victimisation occur under EA 2010?
V done a protected act or D believed that V has done so.
48
When does harassment occur under EA 2010?
- relates to protected characteristics; or
- conduct of a sexual nature;
- less favourable conduct BCS of rejection or submission to harassment of sexual nature or related to sex or gender reassignment.
Depends on V's perception:
- violating dignity
- creates intimidating, hostile, degrading, humiliating environment
49
specified investments under FSMA
- shares
- bonds
- pension schemes
- regulated mortgage contracts
- gvt securities
- contracts of insurance
50
specified activities under FSMA
- dealing in investments
- arranging deal * *
- managing investments
- advising on the merits of investment
(advising on the merits requires opinion + recommendation)
51
excluded activities under FSMA
- necessary part of services
- authorised person exception
- sale of body corporate
52
Approved prospectus is required when
- for Plc in the UK
- approved by FCA
In case of non-approved prospectus = criminal offence
53
Approved prospectus is NOT required when
- offer directed for fewer than 150 ppl
- offer sent to qualified investors
54
When is a regulated activity under FCA is 'incidental'?
- small part of the overall work by the firm
- not a separate piece of work
- not invoiced separately
55
authorised person (AP) exception under FSMA
Client decided on the advice of AP by FCA and solicitor acts on that advice approved by the client.
56
Damage-based agreements (DBAs) are capped at:
FUNDING
- PI claims: 25%
- employment: 35%
- in all other cases 50%
Excludes damages for future loss.
Calculated on the damages received.
57
Conditional Fee Agreements (CFA)
SUCCESS FEE
Normal fee + success fee
Calculated on the fee.
Up to 100% on top of normal solicitor fees.
58
What is the rule regarding the acceptance of terms when parties exchange standard terms and one party expressly accepts the other's terms?
The party who unequivocally accepts the terms of the other (by signing or otherwise manifesting acceptance) is bound by those terms, provided the acceptance forms a contract.
When a party makes an offer that includes standard terms, and the other party unequivocally accepts the offer referencing those terms (e.g., by signing a document or tear-off slip), the contract is concluded on the terms specified in the offer. The "last shot" rule applies, meaning the final terms accepted govern the contract.
59
What is the rule regarding the priority of floating charges when one is unregistered and the other is registered?
An unregistered floating charge is void against an administrator, liquidator, or other creditors. A registered floating charge takes priority over an unregistered one, even if the unregistered charge was created earlier.
60
What is the rule for substituting a deceased party with its estate's personal representatives in legal proceedings?
Court can order substitution of the new party IF the relevant period was current at the time proceedings were started/issued.
61
What is the rule regarding the formation of a contract when consideration is promised but not yet paid?
There is a valid contract if there is an offer, acceptance, and sufficient consideration, even if the consideration has not yet been paid.
The consideration can be lower value than the actual value of the item. Court will not interfere.
62
Failure to respond to proceedings on time would lead to (...)
'default judgment’ judgment in the claimant’s favour without the court considering the merits of a case.
63
Conditions for default judgment
- At the date date of entering judgment, the time has expired to file an acknowledgment or defence
- claim has been admitted or satisfied by the D (if no defence, silently admitting)
- no application for summary judgment or strike out has been made by the D
64
Grounds to set aside a default judgment are:
- that D has 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)
--> applicantion must not be delayed.
65
What are the elements of a PoC
- 'a concise statement of the facts on which the claimant relies'
- either be attached to claim form or separately up to 14 days after the service
- Duty, breach, causation and loss (recoverable loss and interest)
- PI claims: C’s DOB, details of injuries, schedule of past, future expenses and losses
- land claims: identify land and whether residential /commercial
- Attach written agreement OR give details on oral agreement
- claim for interest
- statement of truth
- attach any specific doc relating to the claim
66
What is the last statement of case in a claim?
What does it entail?
REPLY - that permission of the court is needed to file any statement of case after the reply
67
What are options if a statement of case is unclear?
- apply to strike it out
- apply for summary judgment
- ask for clarification – court can order for the party for clarification. Its response is also a statement of case with statement of truth.
- use procedure in CPR18 – request further information (need to know basis)
68
Consequences of set off
* D (set off) + C (main claim) both successful --> extinguish the set off part and other in the main will be paid
* C is unsuccessful (main claim) + D successful (set off) --> against the C only in the sum of set off
* C successful + D set off unsuccessful --> set of not triggered, D liable for the full some
69
When should defence to counterclaim be served?
within 14 days after service of the counterclaim
70
When must D reply after PoC and claim form deemed served?
within 14 days after service of PoC
71
Which form to acknowledge service of CF + PoC
Form N9
- extends the deadline to serve defence to 28 days after the deemed date of service (‘DDS’) of the PoC
72
How many days can parties agree to extension after acknowledgement of service?
AoS requires defence be served within 28 days of DDS.
Further 28 days extension can be agreed between parties.
73
When is permission of court required for counterclaims against a person other than the claimant?
ALWAYS
73
When is permission of court required for classic counterclaims ?
No permission if filed at the same time as the defence.
Required if it's filed at any other time.
73
When is permission of court NOT required for contribution or indemnity from existing person?
No permission required 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.
Required if filed at any other time.
73
When would the court add/substitute a new party into the proceedings? (test)
1- desirable to resolve all matters OR there is an issue involving the new party and existing party connected to the matters disputed and its desirable to add the new party to resolve it
2- connected to matters in dispute/proceedings
74
A party upon whom an additional claim is served becomes a party to the proceedings. It must be accompanied by:
1- response pack
2- copy of every statement of case and docs as the court directs
75
When should an interim application be made?
as soon as it becomes apparent that it is necessary or desirable. They should be made in accordance with the overriding objective, and parties are under a specific obligation to bunch their interim applications.
76
How can a without notice application be made?
Application Notice (form N244) along with Supporting evidence, Draft order and by paying the relevant fee. Following this the issue will be given by the court.
77
In Multi-track when do these need to be filed:
- Budget
- Disclosure report
- Draft directions
- Budget discussion report
- Budget = not less than 21 days before CMC
- Disclosure report = not less than 14 days before CMC
- Draft directions = not less than 7 days before CMC
- Budget discussion report = not less than 7days before CMC
78
Inspection of diclosured documents procedure:
ѳ If evidence is a SoC
- Party to send written notice of Inspection to other side.
- Within 7 days, other side must allow the inspection (if there is a right to inspect)
ѳ If evidence is an Expert Report
- Party to make an application for inspection
79
Types of privilege
* either solicitor client ‘legal advice privilege’; or
* solicitor/legal representative with the client or a TP due to the ongoing/upcoming/anticipated litigation ‘ litigation privilege’
* or without prejudice privilege – purpose is to attempt to genuinely settle the dispute often marked as ‘without prejudice’ ‘except as to save costs’
80
Grounds on which a party can refuse inspection:
o the doc is no longer in the disclosing party’s control; or
o allowing inspection would be disproportionate; or
o the disclosing party has a right to withhold inspection (ie. doc is privileged)
81
Consequences of Claimant's unaccepted Part 36 offer
if judgment against the D is at least as advantageous [equal or more] to the C’s offer, the court will impose a sanction (trigger):
ѳ interest on the award 10% above base rate from the expiry of the relevant period
ѳ the costs from end of the RP are assessed on the indemnity basis
ѳ Interest on costs 105 above rate
ѳ additional amount as award – 10% up to 500k, 5% above 500k
82
Discontinuance procedure
1- C files a notice of discontinuance at court
2- sserves a copy on every party
3- discon° takes effect from date of service
4- upon discon°, costs order is deemed to have been made in D's favour on standard basis
83
When can an 'attachment of earning order' be made?
ONLY in County Court
where debtor doesn’t have substantial assets but do earn a salary for employment. Standard form will be filed. Debtor will reply. Proportion of earnings will be attached by the court.
84
Enforcement of judgment: taking control of goods (TCG)
- writ of control (HC, if judgment over £5000); or
- warrant of control (CC)
Note that advance notice to debtor must be given at least 7 clear days before taking control of goods
85
Test for granting permission for first appeals
Permission will only be granted where the court considers:
- that the appeal would have a real prospect of success; OR
- that there is some other compelling reason why the appeal should be heard.
86
Test for granting permission for 2nd appeals
1. the appeal would have
(i) a real prospect of success and
(ii) raise an important point of principle or practice;
OR
2. there is some other compelling reason for the CA to hear it
87
Grounds of appeal
Judgment was wrong or unjust/
Unjust - because of a serious procedural or other irregularity in the proceedings in the lower court.
88
Who do you appeal to from CC District Judge?
CC Circuit Judge
EXCEPTION: non-insolvency proceedings under CA2006 will be appealed to HC
89
Who do you appeal to from CC Circuit Judge?
High Court Judge
90
Who do you appeal to from High Court Master?
High Court Judge
91
Who do you appeal to from High Court Judge?
Court of Appeal
92
When does the appeal bundle need to be file?
within 35 days of the filing of the appellant’s notice
93
Parties file and serve skeleton arguments only where:
1- complecity of facts or law requiring justification; or
2- skeleton arguments would assist the court in respects not readily apparent from the papers in the appeal
94
Serving a claim form outside the jurisdiction time period
period for service is 6 months
95
For D to dispute the court's jurisdiction, D must:
- file acknowledgment of service and tick the box to contest the court’s jurisdiction
- D then must apply within 14 days after filing the acknowledgment of service, disputing the court’s jurisdiction
- support with evidence
96
Effect of court's power to strike out
deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party.
It can include deletion of the entire SoC so that the case is effectively over.
97
CDD for companies
- name
- Co nb°
- registered office
- law/jurisdiction
- constitutional docs
- name of directors & senior management
- identify & verify beneficial owners (ie. more than 25% of shares or voting rights)
98
How many days should pass to be able to continue to act for a client that ypu made disclosure for suspicious activities to firm's MLRO?
(MLRO reported to NCA)
7 working days.
If NCA refused consent during notice period, and moratorium period expired (31 days) you can continue to act.
99
Exempt regulated activity satisfying both s327 FSMA and SRA Scope Rule 2
1- must be of a profession
2- must not receive payment/commission unless passed on to client
3- activities in question must be incidental
4- the person has to comply with the relevant designated professional body’s rules (DPB rules), satisfy the both
o SRA Scope rules
o s327 FSM
100
CDD for natural persons
face to face verification, producing a valid passport or photocard ID should enable most clients to meet the AML identification requirements.
101
When is Simplified CDD employed?
with low risk of ML- known/established or government founded companies and institutions or company listed on the stock exchange.
102
Threshold to bring property damage claim for defective products
- £275 minimum.
and
- Property must be for private use.
103
Defences available for manufacturer in defective product claims
o The defect did not exist when the product was supplied.
o The state of scientific/technical knowledge at the time did not allow discovery of the defect.
o Other defences include contributory negligence and acts of third parties.
NOTE
o Liability under the CPA cannot be excluded or limited.
104
Standard of care in occupiers liability claims
1. General Visitors:
The occupier must take reasonable care to ensure the visitor is safe for the purposes they are on the premises.
2. Children and vulnerable people:
A higher duty is owed to children and ppl with particular vulnerabilities as they may not appreciate certain risks.
3. Skilled Visitors:
A lower duty applies where visitors are professionals expected to manage specific risks in their occupation
105
Occupiers are not liable for harm caused by independent contractors if:
1. They acted reasonably in hiring the contractor.
2. They checked the competence of the contractor.
3. The nature of the work did not require further supervision.
106
Occupiers are not liable for harm caused to independent contractors when:
An occupier does not have to take care to protect someone against risks normally INCIDENTAL TO THEIR JOB which they can be expected to have guarded against.
107
Requirements to establish occupier's liability for trespassers
1- The occupier must know, or have reasonable grounds to believe, that a danger exists on the premises.
(Requires actual knowledge of facts)
2- The occupier must know, or have reasonable grounds to believe, that someone is or may come into the vicinity of the danger at the time of the accident.
3- The risk must be one the occupier can reasonably be expected to provide protection against.
Can only be awarded damages for personal injury (NOT property damages)
108
What is the rule regarding tax liability for chargeable gains in a partnership?
(Partnership agreement exists)
Partners are liable to pay Capital Gains Tax on chargeable gains in proportion to their capital sharing ratios as specified in the partnership agreement.
109
Courts will not intervene in policy decisions made by public bodies in tort claims
UNLESS
Operational Matters: Courts can intervene where negligence occurs in operational implementation (e.g., medical misdiagnosis).
110
Does police owe duty of care to their informants?
The police assume responsibility to protect informers against the criminals they give evidence about. (therefore - assumed responsibility for informant’s welfare).
111
Which rate band will be applied to individuals for CGT:
Where an individual’s taxable income PLUS taxable chargeable gains after all allowable available deductions is less than basic rate tax threshold, CGT rate taxed at 10%. - BASIC RATE
Where an individual’s taxable income exceeds the basic rate band, the CGT rate is 20%.
Where an individual’s taxable income is less than the basic rate BUT after the gains are added, the combined total exceeds that threshold, that part of the gains within unused part of the basic rate tax band will be charged at 10% AND any part exceeding the threshold Will be charged at 20%.
112
Calculation of net income for individuals
Net Income = total income LESS available tax reliefs.
You must deduct
1- interests paid out on qualifying loans; and
2- pension scheme contributions.
113
Do individuals with net income exceeding additional rate band have benefit of personal allowance?
NO
114
BUSINESS ASSET RELIEF (death estate and lifetime)
What are the rates of relief?
1- unquoted shares (100%)
2- quoted shares (50%) - only applies if controling shareholding
3- Business or interest in a business (100%)
4- Assets owned by taxpayer but used for business purposes (50%)
115
BUSINESS ASSET RELIEF
Conditions for Application
(death estate and lifetime)
1- transferor must have owned the business assets continuously for at least 2
years immediately prior to the relevant transfer.
2- business/assets must not relate to businesses consists wholly or mainly of
- dealing in securities/stocks/shares/Land/buildings
- making or holding investment (eg. rental property)
If a person inherits business assets following someone’s death, they are deemed to
acquire the assets on the date of death (even though the assets will have been
transferred to them after this date).
If spouse inherits, deemed to have owned from the time originally acquired by the deceased.
116
What is the GOLDEN RULE for interpretation of statutes/acts by the judge?
The judge first looks at the
natural ordinary meaning of the words used. However, such an interpretation of those words results in an absurd meaning being given to the section.
The judge therefore, in coming to his decision, interprets the words in a different way which does not result in an absurd meaning.
117
Where there is overlap between a prerogative power and a statute; which one prevails?
STATUTE
118
What is the solicitor's duty when an initial cost estimate becomes inaccurate?
The solicitor must promptly inform the client about the updated costs and seek their instructions if the original estimate is no longer accurate.
119
What is a member state’s duty under the European Convention on Human Rights (ECHR) regarding deportation where there is a risk of evidence obtained through torture being used/torture will be imposed on the deported person?
A member state must not deport an individual if there is a real risk that evidence obtained through torture will be used against them (art 3), as this would violate the ECHR’s prohibition on torture and the right to a fair trial (art 6).
120
What is the burden of proof in a civil claim when there is conflicting oral evidence?
The burden of proof lies with the party making the allegation to prove their allegation on the balance of probabilities.
121
Can a consumer recover damages under the Consumer Protection Act 1987 for injuries caused by a defective product?
Yes, the consumer can recover damages if the product is defective, albeit unforeseeable.
122
When can Court of Appeal depart from its own binding decision?
* came to previously conflicting decisions
* overruled by HL/UKSC in interim [UKSC can overrule/overturn any CA decisions - set a new 'correct' precedent instead]; or
* CA’s previous decision was made ‘per incuriam’ ie. lead to injustice in a particular case AND unduly restricts proper development of law.
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What is the mischief rule in interpetation of statutes by the court?
The mischief rule directs the court to interpret a statute by identifying and addressing the specific issue or "mischief" the legislation was intended to remedy.
Now replaced with Purposive rule.
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Linguistic presumption:
‘expressio unius est exclusio alterius’
CLOSED LIST
--> Parliament intended only to include those items that are stated. Wording applies to only what that provision covers.
125
Linguistic presumption: 'ejusdem generis'
– same kind of objects/items. Items of the same kind.
when a statute includes a generic but non-exhaustive list of items, and the interpretive task is to work out whether a particular item would fall within the list. You must restrict it to the COMMON CHARACTERISTIC of the words listed in the statute.
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‘noscitur a sociis’
= word is known by the company it keeps
Allows the judge to look at the wider area of the statute in which the SECTION falls and then to draw conclusions from that. Closely associated with the relevant section will be compared within the context of statute interpreted.
ONLY applies when general words – usually introduced by the words ‘or other…’ – come at the end of a list.
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SENIOR COURTS
* Supreme Court (UKSC)
* Court of Appeal
* High Court (civil)
* Crown Court (criminal)
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CIVIL JUDGES (seniority order: low to high)
* Deputy district judges (at the bottom, they are part time judge)
* District judge
* Recorders (out of London doing High court work)
* Circuit judge (outside of London)
* High court masters
* High court judges
* Court of Appeal judges
* Supreme Court judges
* President of Supreme court
* Lord Chief Justice
129
Rights of audience
- Solicitors
Solicitors can carry out advocacy in the Magistrates’ Court; County Court; and the ‘First-Tier’ Tribunals.
They will ONLY have the right to audience in lower courts. UNLESS they pass exam and got special training.
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Legal value of constitutional conventions
NO LEGAL ENFORCEABILITY, if breached or disregarded sentence would be political.
131
Constitutional conventions relating to Parliament
1 The Ho use of Lords should defer to the House of Commons.
2 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 (SALISBURY ADDISON)
3 Financial bills (e.g. relating to government expenditure and taxation) should only be introduced by a Cabinet minister in the House of Commons.
4 The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration (SEWEL)
5 Monarch cannot refuse royal assent.
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Hunting act 41-42
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
133
Who can question the validity of an Act of Parliament?
NO ONE
134
Power of the monarch
- appoints PM
- dissolves Parliament (no more)
- Give Royal Asset to Acts (must give)
- royal prerogative
134
When does a bill become law?
When it receives the royal assent
135
Individual Ministerial Responsability
– ministers responsible for failed policies – and operation
=> The ultimate responsibility for implementation of policy lies with the Minister, gvt is accountable to Parliament through PSCs.
They must accept responsibility and if necessary resign for any errors and failures of their departments.
136
collective ministerial responsibility
all government ministers are bound by the collective decisions of Cabinet.
Must support or resign.
137
What are EU
Primary souces?
Secondary Sources?
Primary
- TEU
- TFEU
Secondary
- Regulations
- Directives
- Decisions
- Tertiary acts (bcs they take form of secondary act)
138
Supremacy of EU law implications
1- EU law stemming from the treaty could not be overridden by domestic legal provisions
2- EU law takes precedence over the national constitutions of the member states
139
Preserved EU law examples under Withdrawal Act
rights of union citizens and their fam members resident in the UK at the end of transition period AND Northern Ireland Protocol
140
Leapfrog process merit conditions
- exceptional circumstances warranting a direct appeal; and
- either matter of general public importance, or the interest of justice require
141
Heading judge of CA
Master of the Rolls
142
CA hear appeals from CC only if
only if given by a circuit judge in CC
143
OBITER DICTUM
where a judge comments on an area of law, on which it is not necessary to reach a decision in the case. Obiter comments are NOT binding but highly persuasive.
Can be 'so persuasive as to be practically binding' - Especially from Privy Council
144
The court must defer to Parliament where
there are novel and contentious matter if they cannot work the case from existing principles of law.
144
A solicitor is representing a client in a complex business transaction. The client has suddenly become severely ill, and the solicitor has been unable to obtain or ascertain their instructions regarding an important and immediate decision in the transaction.
What should the solicitor do?
Proceed with the transaction and take actions that are in the client’s best interests.
bcs
Part 3.1 SRA Code of Conduct
“You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf.
If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you have satisfied yourself that they do.
However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client's best interests.”
145
By whom, and by which procedure, are the majority of Statutory Instruments brought into law?
By Ministers via the negative resolution procedure.
Procedure for passing statutory instruments is split into 2:
1- affirmative resolution procedure --> [require the express approval by resolutions of both Houses of Parliament (or sometimes of the Commons only)]
2- negative resolution procedure --> [become law unless there is an objection from either House (so this process is significantly less labour intensive)]
SI = secondary legislation (created and implemented by the gvt)
146
Can the parliament amend a secondary legislation? (statutory instrument)
NO!
Parliament can either approve or reject it BUT cannot amend it.
147
Did a solicitor act correctly under the SRA Code of Conduct by not taking further action after the COLP (following his report) decided not to report a suspected serious breach to the SRA?
NO
- Solicitors must report serious breaches of the SRA's regulatory arrangements.
- The obligation can be fulfilled by reporting to the COLP, but solicitors retain a personal duty to ensure that such breaches are reported.
While it was appropriate to initially report the matter to the COLP, the solicitor retains a personal responsibility to ensure that serious breaches are reported to the SRA.
If the COLP decides not to report the breach, the solicitor must take further action, such as reporting it directly to the SRA.
148
Is the duty to report serious breaches of SRA regulatorions fully discharged by referring the matter to the COLP?
NO
They should pursue the matter further if COLP decides to not to report it, they still hold a PERSONAL RESPONSIBILITY to ensure that serious potential breaches of SRA regulatory arrangements are reported to SRA.
149
Effect of Declaration of Incompability on the parties bringing ECHR/HRA claim?
Parliament may amend the legislation to make it compatible with the ECHR AND the DOI is not binding on the parties.
THEREFORE
- DOI will not affect the validity of an Act of Parliament [ie. not provide any remedy to the victim]; and
- a public authority will not be acting unlawfully in applying the legislation. Can use s6(2) defence; and
- DOI gives the gvt the power to use a special procedure to amend the conflicting Act of Parliament quickly to be compatible with ECHR
150
Can an employer be both vicariously and primarily liable of the same fact?
Yes
Same act has 2 impacts:
* primarily - employee is affected
* vicariously - due to same act employee affected himself or others
151
A driver of a milk delivery vehicle disobeyed company orders by allowing a 13-year-old boy to help him collect and deliver milk bottles, and the boy was injured in the process.
The Court of Appeal found the employer liable.
What is the rationale?
Close connection test satisfied!
The employer, having ‘put matters into motion’, should be liable if the motion which he has originated leads to damage to another.
Employer was found liable because the boy’s injury occurred whilst the driver was engaged in the business of delivering milk.
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Legal Aid - Representation order
Applicant must satisfy both means & merit tests.
What are they and how to apply?
The ‘merits’ test --> looks at the merits of the case to decide whether it is serious enough to qualify for legal aid. The fact pattern would state that the defendant passes the merits test. (eg. imprisonment sentence, indictable-only offence, Crown C trial etc)
Means test --> funding
-- intial means test: applicant’s gross household income, weighted to take account of family circumstances, such as the number of dependants and essential living costs, such as mortgage or rent [adjusted income]
-- full means test: gross household income, with allowable outgoings and a weighted living allowance combined [disposable income]
153
For means test (representation order - legal aid), are resources of the household (spouse/partner) included?
YES
Applicants must pass both the income and the capital eligibility test.
Resources of the applicant’s partner are to be included in the calculation of the financial resources of the applicant, UNLESS the partner has a contrary interest in the dispute in respect of which the application is made. (eg. domestic violence case)
154
A solicitor acts on behalf of a teenager who suffered significant injuries in a road traffic accident on holiday in Greece.
The solicitor obtained a medical report and assessed quantum to exceed £20,000.
They have prepared a Letter of Claim to two different defendants; one domiciled in England and one domiciled in Greece.
What is/are the timescales for Defendants' response?
The defendants (both domiciled in England and Greece) should:
- acknowledge the Letter of Claim within 42 days; and
- confirm positions on liability within 6 months.
BECAUSE
Bcs -- PI claim occured outside of England and Wales and/or D' is outside the jurisdiction.
Track - fast track
Same timescales bcs - it is immaterial that D1 is w withing jurisdiction and D2 is outside bcs Accident OCCURED OUTSIDE !!!!!
155
The rule at common law is that the party seeking to rely on the exemption clause must show:
1- clause incorporated as part of the contract
2- on a strict interpretation (clear and unambigous covers the scope and extent of the excluded liability// ie. covers the breach complained of)
3- incorporated either before or at the time of the contract
4- does not contradict/ are not prohibited by statute
156
What courts does High Court decisions bind?
High Court binds itself when sitting as Divisional court (hearing appeals from county court). BUT Doesn’t bind itself when hearing claims at first instance.
Also binds lower courts.
156
Thresholds for allocation to track
- Small Claims Track: up to £10,000.
- Fast Track: up to £25,000. & Trial duration max 1 day.
- Intermediate Track: up to £100,000. & max trial duration 3 days.
- Multi-Track: exceeding £100,000 or those not suited to the other tracks. CMC applies automatically
All HC cases are multi track.
If claim is under/about £25k but trial duration is 2 days --- then it's fast track!
157
Are Privy Council decisions binding?
NO
Privy Council doesn’t bind any English or Welsh court. But it has quite persuasive judgments due to seniority of judges. Privy council only last resort it doesn’t go to SC after.
158
When must the personal injury claims be acknowledged and letter of response be sent?
- Letter of claim sent to D [give full details]
- D acknowledges the letter of claim within 21 days
- D investigates and send full Letter of response within 3 months of the letter acknowledging claim.
159
When can non-compliance with pre-action conduct be justified?
in very limited circumstances such as:
1- limitation period about to expire but it’s necessary to issue proceedings before the time to comply with the pre-action requirements
2- there is another reason for urgent proceedings or for the element of surprise
160
What happens if proceedings are not commenced within the relevant limitation period?
Claimant will be barred from recovering damages and, on this basis, the defendant will have a full defence.
161
Which court to issue claims for personal injury?
- less than £50,000 must be in County Court.
- £50,000 or more can be in either court.
162
What should be disregarded when calculating the value of the claim?
ie. its financial worth
1. interest;
2. costs;
3. any counterclaim; or set off
4. any contributory negligence; and
5. any deduction of social security benefits.
But VAT will be included.
163
claim form
Form N1
164
Why is date of issue of the claim form important?
It stops time running for limitation purposes and starts the clock for the time in which the claim form must be served.
If the documents are sent to the High Court, the court will stamp the covering letter with the date of receipt.
165
The restriction in the partnership agreement as a non-compete is a restraint of trade clause.
Court will find the non-compete clause unenforceable if it imposes restrictions or limitations on the freedom to conduct business by the signatory.
Generally, clauses in restraint of trade are prima facie void and will be unenforceable.
This means that the contract must go no further than necessary to protect the legitimate interest of the party relying upon the clause, in this case the recruitment partnership, both within a specified geographical area and within a specified period.
The clause must be reasonable in terms of the public interest, and this will be determined as a matter of law by the court, which may take into account such matters as trade practices and customs. The common law is, in general, reluctant to impose restrictions on a person’s ability to earn a living.
166
To recover damages for pure economic loss caused by negligent misstatement special relationship.
The conditions are that:
1- There was an assumption of responsibility by the defendant giving rise to a special relationship with the claimant; and
2- there was reasonable reliance on the statement(s) by the claimant.
In Hedley Byrne it was said a special relationship would arise where the party seeking advice was trusting the other to exercise such a degree of care as the circumstances required,
where it was reasonable for them to do that,
and where the other gave the advice they knew or ought to have known that the enquirer was relying on them.
167
Solicitors may advertise their services to the public, subject to certain conditions.
What are the conditions?
“You do not make unsolicited approaches to members of the public, with the exception of current or former clients, in order to advertise legal services provided by you, or your business or employer”.
Businesses, such as companies, or non-profit organisations are not considered ‘members of the public’. Similarly, individuals who are members, directors, or employees of a company, acting in their capacity as representatives of the company, are not typically considered ‘members of the public’ either.
168
Grounds to apply for an interim payment:
Application for interim payments is made by the claimant.
- The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
- The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs).
- It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.
The applicant must provide evidence alongside its application.
169
issue - application for interim applications
- Form N244
- Supporting evidence
- Draft order
- Fee
CAN be made during the course of proceedings prior to trial, and even after judgment has been obtained but damages are yet to be assessed.
CANNOT be made before the end of the period for the defendant filing an acknowledgment of service.
170
Can interim payments made by D be disclosed to the trial judge?
NO.
Unless the defendant agrees, an interim payment will NOT be disclosed to the trial judge until all questions of liability and quantum have been decided.
171
A agrees to provide consulting services to B for a fee of £1,000 per month for a period of one year.
B has not made any payment and A has not provided any services to B yet.
Have the parties fulfilled the essential element of consideration for the formation of a contract?
The parties fulfilled the essential element of consideration for the formation of a contract because both have provided executory consideration.
172
Is UKSC bound to follow its previous case?
UKSC is bound by its own previous decisions but it has power to depart from them.
This may happen where the court ‘appeared right to do so’.
However, this power to depart is used very sparingly e.g. where a previous decision does not reflect public policy.
173
How can a company refuse inspection of register of members or refuse asking for a copy of it?
- The company must, within five working days of receiving such a request, either comply or, if it believes the request is not made for a ‘proper purpose’, apply to the court to refuse the request.
- If the company applies to the court, it must notify the person making the request.
- If the court is satisfied that the inspection or copy is not sought for a proper purpose, it must direct the company not to comply with the request, and it may also direct that the company is not to comply with any similar requests made for a similar purpose. or may also order the applicant to be liable for the company's costs.
- If the court directs the company to comply with the request, the company must comply immediately upon the court giving its decision.
174
Pure economic losses are:
losses not flowing from damage to person or property.
- arising from damage to property owned by someone else
- defective items
175
Against whom should an interim payment order be made in personal injury proceedings where legal representatives are insurers (ie. insurance company)?
The interim payment order should be made against the defendant, as they are the party from whom damages are being sought in the proceedings; regardless of the involvement of insurers or other entities.
But payouts may be done by the insurer, even though the order will be against defendant.
176
min designated partners for LLP
2
177
CAB-RANK RULE
(for barristers)
This rule essentially dictates that a barrister must accept any work in a field in which they profess to practice and at a court at which they normally appear, so long as the fee is at their usual rates.
They cannot discriminate based on the nature of the case or the client.
178
An off-duty certified lifeguard is at a public pool when he notices a child struggling in the deep end. Deciding to help, the lifeguard intervenes. However, due to his negligence, the child tragically drowns during the rescue attempt.
Is lifeguard liable for negligence?
YES
Assumed responsibily when voluntarily intervened.
Once chosen to intervene, duty of care was established.
179
neighbour principle -assumption of responsibility
FORESEEABILITY
If a person can reasonably foresee that their action (or inaction) might cause harm to someone else, then a duty of care arises.
180
DUTY OF CARE FOR FIREFIGHTER/BRIGADE
No duty to attend the fire or to take any action upon arrival. However, if they attend/intervene they have the duty to not to make the situation worse.
181
A parent, amidst ongoing divorce proceedings, seeks to obtain a child arrangement order concerning their children.
Where should the proceedings be commenced?
Family court - separate and specific application, NOT as a part of divorce proceedings.
182
What conditons should be met for an individual to be classifiedf as a 'salaried member' of an LLP?
The individual's contribution to the LLP is less than 25% of the expected disguised salary payable by the LLP.
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