PROBLEM AREAS Flashcards
(132 cards)
1
Q
Whose votes count at a general meeting? (business)
A
Only those of shareholders that are present or by proxy
2
Q
What are the consequences of a S303 notice? (business)
A
After a S303 notice is sent to the board, if the directors do not call a general meeting within 21 days, the shareholders that sent the notice or those representing more than half the voting rights of all of them, can call one
3
Q
What is a Substantial Property Transaction? (business)
A
- a transaction
- involving a non-cash asset
- with a value of either:
– over £100k or
– over £5k but exceeding 10% of the company’s assets - and the other party is either a director or connected to the director
4
Q
what is required for an SPT to go ahead? (business)
A
- ordinary resolution
- s177 declaration
5
Q
Who must receive a written resolution?
A
all eligible shareholders
- i.e. shareholders entitled to vote on the date of circulation
6
Q
Under the Companies Act 2006, what type of resolution is needed for amending AoA?
A
- special resolution needs to be passed
- over 75% of the voting rights of all members
7
Q
How to pass an ordinary resolution at a general meeting?
A
- need a simple majority- OVER 50%
- on a deadlock, the chair does not have the casting vote
8
Q
How many shareholders need to agree to allow short notice of a general meeting?
A
- majority of shareholders
- holding at least 90%
9
Q
When is Apparent authority binding?
A
- when the contract entered into is one the firm would reasonably expected to enter into
- and the counterparty doesn’t know they are acting without authority
10
Q
Why would you serve a statutory demand and what are the consequences of not getting a reply?
A
- An unsecured creditor of an individual who is owed more than £5000 should serve a stat demand (or over £750 from a company)
- if they do not get a repayment within 3 weeks, they should file for bankruptcy (of the debtor) which will likely be granted as the grounds for personal insolvency are satisfied
11
Q
Breach of director duty- accepting benefits from 3rd parties- what do they do if if breached?
A
- must inform the company
- could be ratified by ordinary resolution
- the director who breached can’t vote and doesn’t count towards quorum
12
Q
What is an unfair prejudice claim/what does it do? (business)
A
- allows a minority shareholder to protect their individual shareholder rights against potential abuse by the majority
13
Q
Fixed vs Floating charges
- which takes priority?
- within this- how do you determine priority?
A
- fixed always take priority
- order of priority is by date of creation
14
Q
what type of resolution is required for buyback of shares?
A
ordinary resolution
15
Q
quorum for a general meeting for a company with more than one shareholder
A
- 2
- can be increased by a company’s AOAs
16
Q
Can you get damages for a breach of the HRA
A
- court can grant any remedy it considers just and appropriate
- damages are not made unless it gives “just satisfaction” which means it is rare
17
Q
what does the EU FUTURE RELATIONSHIPS ACT do?
A
- automatically amends all UK primary and secondary legislation prior to 31st December 2020 to be in line with the trade and cooperation agreement agreed between the EU and UK
18
Q
when can a police officer impose conditions on a public assembly?
A
Reasonably believe having regard to the local area that it will cause
- serious damage
- disorder
- disruption to the life of the community
- noise would seriously disrupt or have a significant impact
- intimidate others
19
Q
Can the affairs of parliament be reviewed?
A
- no
- only parl can determine its own proceedings
20
Q
Retained EU law (revocation and reform) act
A
- general principles of EU law were abolished in UK law
- UK courts are no longer bound by the judgements of the European Court of Justice
21
Q
Royal prerogative vs Parliamentary legislation- which takes precedent?
A
- Parl legislation
- if an act has amended or removed a prerogative, the act takes precedence
22
Q
Irrationality definition
A
- a head of illegality as a ground of judicial review
- basing a decision on irrelevant considerations rather than relevant ones
23
Q
Suspended quashing order- what is it?
A
judicial review remedy which means the public authority’s decision or action is made unlawful at a specified later date
24
Q
Reserved legal activities
A
- probate
- oaths
- rights of audience
- notarising
- litigation
- land documentation
- court documentation
25
FSMA- Firms cant carry out a regulated activity unless authorised or exempt
- is advising a specified activity?
only if it is on specific investment products (such as shares in a company)
advising generally on the differences between 2 types of investment is not the specified activity of advising
26
POCA- overseas defence
the overseas defence applies to all PoCA offences (except s333A).
It applies if the defendant knows or has reasonable grounds for believing the criminal conduct that sourced the money occurred outside the UK, and that conduct is not criminal in the country in which it took place (even though criminal in the UK).
The defendant does not need to know or have reasonable grounds for believing in the second limb (that the conduct is lawful in its country of origin), only for the first (that the conduct occurred outside the UK).
27
Takeover exclusion- when does it apply? and what is it an exclusion to?
- when a client is buying or selling at least a 50% stake in a company's shares
- it is an exclusion to the activities of dealing as an agent, arranging, and advising
28
When do the money laundering regulations apply to firms?
- Only if a firm carries out in-scope work:
- real estate work (conveyancing);
- corporate finance work;
- trust creation, operation and management work;
- and company formation, operation and management work.
29
When is SRA authorisation required in a law firm?
- only if a firm is carrying out reserved legal activities or immigration work
- Professional indemnity insurance is only required for SRA- authorised firms
30
MLRO and MLCO- when do you need them and who can they be?
- A firm that comes under the MLRs 2017 must appoint a Money Laundering Reporting Officer (MLRO) to deal with reports from its employees to the NCA
- and will likely need to appoint a Money Laundering Compliance Officer (MLCO) to ensure the firm complies with its obligations under the MLRs 2017.
- They must be of appropriate seniority (be partners),
- and the SRA must be informed of their appointment within 14 days and must approve it.
- They can be the same person.
- The firm will also need to tell the SRA what in-scope activities it is looking to undertake
31
Professional indemnity insurance- minimum cover?
all authorised firms must have professional indemnity insurance (PII) that is:
-(a) “Qualifying insurance”; and (b) adequate and appropriate to the firm's practice.
- “Qualifying insurance” means a minimum cover of £3m for a law firm and £2m for a sole practitioner (for any one claim).
32
eligibility for civil legal aid
- must be in scope
- business (commercial matters) and divorce are not in scope
33
Rylands v Fletcher- how do you establish liability under this
- D brings something onto the land that is capable of causing damage;
- the thing escapes;
- the escape happens when the land is being used in an extraordinary and unusual way;
- and this causes foreseeable damage.
- The acts of a stranger that give rise to the Rylands liability can still make the occupier liable if they were foreseeable and the occupier should have guarded against it.
34
when does consent apply
- completely defeats a claim
- c must consent to the specific harm/risk of harm
- for it to apply, C must have full knowledge of the nature and extent of the risk and willingly consent to it
35
Occupiers liability description
Occupier is only liable for the kind of damage that is reasonably foreseeable-the duty under the Occupiers’ Liability Act 1957 is to be a reasonable occupier: to ensure that the premises are reasonably safe for visitors.
The defendant is not expected to guard against unreasonable uses of the premises.
36
When is vicarious liability applicable?
- vicarious liability can be established when there is a relationship “akin to employment”. That means no formal employer-employee relationship but in reality, the court views there as being one.
- This however does not cover independent contractors (but may capture volunteers).
37
How/when can you revoke a unilateral contract?
this should be done before the offeree has embarked on the course of performance to complete the required act
38
Non-acceptance of a delivery- what happens
and
what if delivery cannot be made?
the seller is entitled to damages
But if delivery cannot be made then the contract fails and any payments made upfront can be refunded as there has been a failure of consideration
39
what is reliance loss?
measure of damages to use when the profits that the innocent party would have made from the contract if full performed are uncertain
40
cost of cure vs loss of amenity
cost of cure is the measure of damages to use for defective construction or installation works, with the level of damages being the amount needed to put this right
loss of amenity is used when the breach is so slight that it would be disproportionate to award cost of cure- just used to reflect the breach
41
What is a collateral contract?
- formed between a party and a third party if the party enters into a contract on the basis of a recommendation of the third party, and the third party receives some kind of benefit as a result
42
acceptance by instantaneous communication outside of office hours
acceptance is deemed at 9am the next day
43
losses vs special losses
losses are foreseeable if they occur in the natural course of things- this covers normal trading profits
special losses are only recoverable if the counterparty had actual knowledge of the special circs which result in the loss
44
pre-existing duties (contract)
- a contract to perform a pre-existing duty for a third party is enforceable
- the consideration given is the ability to sue that party directly
45
Williams v Roffey
To get extra payment for performing an existing contractual duty, a party needs to go beyond what was originally agreed in the contract (such as incurring extra expenditure after a change in circumstances not accounted for in the contract and the fault of neither party) or provide a practical benefit in line with the Willams v Roffey scenario.
46
Undue influence (contract)
- to establish presumed undue influence you need-
- a special relationship and
- a transaction that "calls for an explanation" (i.e. is risky and not to the financial benefit of one of the parties)
special relationship is parent/child, solicitor/client, doctor/patient
47
Uncertain terms
- if the fundamental terms of a contract are too uncertain, the contract will be void for uncertainty
BUT
- if they are present and some terms are vague, the court may be willing to interpret such terms into the contract to give it the intended commercial effect
48
can a crime be committed if it is impossible?
yes- an attempt is made provided that the defendant has undertaken more than merely preparatory steps and has intention to commit the full offence
49
AR and MR of an accessory
to aid, abet, counsel or procure the offence the principal commits
MR is intention to do those things for an offence within Ds contemplation and knowledge or contemplation of a range of crimes, one of which the principal commits
50
What doesn't count as property for a theft offence
- land
- electricity (separate offence)
- wild mushrooms or plants picked (unless to sell on)
- a wild animal
- confidential information
51
what is the continuing act rule
MR and AR must occur at the same time for an offence to occur
however the MR can be formed later as long as the AR is ongoing
52
GBH- s20 vs s18
s18 is intent to cause GBH
s20 is intent or reckless to cause some harm
53
loss of self control (fear of serious violence as a qualifying factor)- does it apply if D is drunk
yes- it is just whether or not they have a fear of serious violence against them- whether this is mistaken or not
54
how to establish unlawful act manslaughter
- establish underlying offence first (AR and MR)
- establish whether the act was dangerous and caused the death
- and whether D voluntarily committed that act
55
Intervening act- can medical negligence count?
- no provided the original injuries are a substantial and operative cause of death
- medical actions must be palpably wrong to be an intervening act- meaning it is so important that it caused the death
56
What counts as ABH?
- anything that interferes with the ordinary comfort of the victim
- bar is really low- cutting hair can count as can causing a recognised psych illness
57
Battery- can you commit it indirectly?
yes- hitting someone who then falls into someone else counts as battery on both
58
Hearsay- how to decide whether a document is admissible or not
2 grounds
- business document
- statement prepared for use in criminal proceedings but the giver of the statement is unavailable or unable to remember the incident
59
who determines whether the evidential / legal burden has been met
- evidential- judge
- legal- jury
60
When can a co-defendant admit the bad character evidence of another defendant
- If defence have made an allegation against the co-defendant (to undermine their defence) and the co-defendant wants to admit the conviction to prove that the defendant has a propensity to be untruthful
61
what is a Turnbull direction?
- if the cps relies wholly or substantially on weak ID evidence, the judge must give a Turnbull direction to the jury, cautioning them on convicting based on the poor evidence
- the court can also withdraw the case if there is no supporting evidence for this weak ID
62
can a youth go to the crown court?
yes if they are charged with a "grave crime" and the sentence is likely to be a detention order of over 2 years
grave crimes are those with a max sentence of 14 years for an adult
63
when does the detention clock start?
as soon as you arrive at the police station
64
when do detention reviews need to take place and by whom?
- no more than 6 hours after the custody officer first authorised the detention, and then every 9 hours after the first review
- by the detention officer who is at least the rank of inspector
65
What are the possible costs sanctions for not complying with pre-action steps
- making winner pay some of losers costs
- awarding less or no interest on damages
66
what is an 'unless order'?
where a party has failed to comply with a direction by the court- the other party may apply for an order to enforce compliance or for a sanction to be imposed or both
67
consequences of a failure to file costs budget
- if you win only the court fees are recoverable unless the court orders otherwise
68
What are the conditions for a claim to be put in intermediate track?
- claim's value must be £25,001- £100k
- AND the trial will last 3 days or less
- have at most 2 experts per party
- max 3 parties involved
- court has the discretion to assign to multi track if more appropriate- and likewise can assign to IT if more than £100k if it is "in the interest of justice"
69
When must the particulars of claim be served
- either with the claim form or
- 14 clear days after the service of the claim form
but must be served within 4 months of the date of issue of the claim form
70
how long do you have to file a defence?
- 14 clear days to respond to the service of particulars of claim by either
- filing defence or
- filing acknowledgement of service which then grants a total of 28 clear days to file the defence
71
what does an interim costs order of "costs in the case" mean
it means that if the client goes on to win at trial, they will recover the costs of the application- if they lose, they will pay for it
72
Who do you bring a claim against in a partnership?
- against the name of the partnership with the word "firm" after it
73
what is a detailed costs assessment
A detailed costs assessment is used in multi-track claims which are complex and/or have large costs liabilities (remember in fast and intermediate track claims the costs are fixed so can be assessed summarily, meaning at the same day as trial). The hearing is presided over by a costs judge and commencement must take place within 3 months of the judgment
74
When does litigation privilege apply?
- litigation must be in reasonable contemplation
- a document or communication is made between a party or their solicitor and a third party for the sole or dominant purpose of obtaining info or advice on conducting that litigation
75
what effect does granting a mortgage over a share in a beneficial joint tenancy have?
- severs that interest so they own as tenant in common
- may end the JT if only 2 beneficiaries but if more than 2 they continue to hold as JTs
76
can mortgage terms be struck out?
- yes if the court sees them as unconscionable
- this is unlikely to apply in a commercial situation where two commercial parties have negotiated the terms of a mortgage and are of equal bargaining power
77
Criteria for enforcing a leasehold Cov against a new tenant in a pre-1996 lease
- og tenant must have legally assigned the lease
- Cov must touch and concern land
- must be privity of estate (which there will be for any existing landlord and assignee)
78
can a landlord refuse consent to sublease
yes but not unreasonably
- can do it on the grounds of the assignee's financial ability to pay rent
79
licence vs an easement
can be distinguished by the benefit that the licence grants- if it is a purely personal one (access to fish or swim) it is likely a licence as an easement must benefit the dominant tenement
80
how do you make an equitable right over unregistered land binding?
- must be registered at the land charges registry against the owner of the unregistered land
81
implied periodic tenancy- what is it and how does it arise
an implied periodic tenancy can arise where the tenant moves in and starts paying rent on a periodic (eg monthly) basis. It requires no formalities or registration and will be automatically binding on a third-party purchaser in both registered and unregistered land.
82
the grant of a mortgage over unregistered land is a trigger for first registration. The land will need to be registered and so will the mortgage.
yes
83
Remedies for breach of fiduciary duty
- account of profits
- proprietary remedy as a constructive trust beneficiary- this can be used if the fiduciary is bankrupt or has used their profit to buy property
84
Saunders v Vautier rights- what conditions need to be satisfied to close a trust
- over 18
- full mental capacity
- be in absolute possession of the trust assets (vested interest)
- if more than one beneficiary then they all need to consent and satisfy the conditions
85
constructive vs resulting trust
constructive- imposed by the court as a consequence of the conduct of the party who becomes a trustee
resulting- not imposed as a response to the conduct of the trustee, but to give effect to the implied intentions of the owner
86
test for certainty of objects
- conceptual certainty- need to be able to describe the class
- evidential certainty- need to be able to prove whether someone is or isn't in that class
87
Are private purpose trust's legit?
no they usually fail apart from in particular exceptions such as for the purpose of
- looking after a pet,
- looking after a monument,
- or saying mass
88
deathbed gifts
To create a valid express inter vivos trust, legal title must be transferred to the trustee (constitution) during the settlor’s life.
The same rule applies when making a gift.
However, equity will step in to create a valid trust even when legal title has not technically been transferred.
One of the times equity will do this is for a donatio mortis causa: a deathbed gift. But the gift, or control over the gift, must be made in contemplation of impending death, must be given to the donee and there must be intention to make the gift conditional on death.
89
Executor power of appropriation
subject to the terms of the Will- they can deal with assets in the estate that are not specific legacies as they see fit to make up a pecuniary or general legacy
i.e. if a beneficiary wants a particular item from the residuary estate- the trustees can give it to them with their consent
90
exceptions to the rule that a witness cant be a beneficiary
- if there are 2 other witnesses
- or if the Will is confirmed by a validly executed codicil
91
ways to pay iht as an executor
- if there is money in the bank they can contact HMRC who can then contact the bank to request a transfer
- or they can take out a private loan or take a loan from a beneficiary
92
how do you renounce as executor
- form PA15
- can only do this before you have taken any actions related to administering the estate
93
what to do if there are unknown potential beneficiaries
- put a notice in London gazette and other local newspapers
- give 2 months to make a claim
94
what is an exempt estate for IHT purposes?
an exempt excepted estate is when the gross value of the estate is above £325,000 but not more than £3m and after the spouse and charity exemptions have been applied falls below £325,000.
-If none of the “special factors” apply, you don’t need to fill out an IHT 400. A special factor includes making a gift with reservation of benefit (a GROB) which the testator benefits from in the 7 years before death. There may still be no IHT to pay, but HMRC must still be informed.
95
When does the Sewel convention apply?
Only applies when the UK Parliament legislates on a non-reserved matter affecting the devolved territory.
96
What is a citation for an Act of Parl?
- it contains the full title of the act, and the year it was passed and a number showing in which order it was passed in that year
97
Ratio deciendi vs obiter dicta
the ratio decidendi is the binding part of a decision of a superior court, binding on a case before a lower court with the same or sufficiently similar material facts.
Obiter dicta are things said by the way that do not form part of the decision but are highly persuasive.
98
3 grounds for departing from a previous judgement
the Court of Appeal can only depart from previous judgments on one of three grounds:
- per incuriam (a mistake);
- two conflicting decisions (one of which must be chosen) and
- the Supreme Court has made a different decision which must be followed.
99
statutory presumptions (consti)
statutory presumptions are used by the courts to help interpret an Act of Parliament. That may result in an action of a public authority being unlawful (ultra vires) if when applying the presumptions the court concludes Parliament could not have intended the authority to have acted in such a way.
100
short title of the act
the short title of the Act is the name of the Act used when quoting the Act (eg, the Proceeds of Crime Act 2002).
101
eiusdem generis rule
when you see a list of things and then at the end wording like “other such things”, use the eiusdem generis rule to work out what else is in that list based on the items that have gone before. The “other things” need to be of the same kind.
102
Noscitur a sociis rule
to work out the meaning of a word within a list, and whether something should therefore be included in such a list, use the linguistic presumption “noscitur a sociis”, which means the word is known by the other words around it.
103
in unregistered land, what type of search do you conduct and against whom?
Central Land Charges search
- made against the names of previous owners during their period of ownership of the property
- seller's solicitor provides buyer's solicitor with this as part of epitome of title
104
How do you determine if someone has good root of title?
- dated before 1st December 1990
- contains a description by which the property can be identified
- deals with legal and beneficial interests in the property
- casts no doubt on the sellers title
105
how do you calculate the contractual compensation due when there has been a delay in completing?
- work out the amount due (purchase price- deposit)
- take the penalty interest rate (4% above base rate) for each day of delay
- times them together
- divide by 365
- times by days delayed
- no interest is payable on the day of completion
106
what is a faruqi clause? (property practice)
special condition inserted into a contract if the seller is selling with limited title guarantee- excluding liability for them
107
Formula A vs Formula B for completing
both over the phone
A- sellers solicitor has both contracts
B- each solicitor has their respective contract
108
what is a TA6 form and who completes it?
- completed by seller
- gives the buyer important info about a property
- not compulsory
- not legally binding but if misleading or inaccurate the buyer may claim for misrepresentation
109
2 exceptions to conflict of interest (property practice) and the conditions for these
- competing for the same objective
- substantially common interest
- clients have given informed consent in writing
- confidential info is safeguarded
- solicitor is satisfied it is reasonable to act for both
110
Forfeiture- when can landlord use power of reentry?
- check if a right of re-entry exists in the lease?
- if yes, check what has been breached
- if rent, no notice is required
- if no, L must make a formal demand for rent
- if it is not rent, check if it is remediable?
- the only covenants that aren't are subletting and illegal/immoral use
- if remediable, serve a s146 notice recruiting T to remedy the breach within a reasonable time
- if not remediable serve s146 notice and wait 14 days
111
is there a time limit to claim for breach of planning permission?
no if there has been a deliberate concealment of the breach
10 years if not
112
what form is used for first registration?
FR1
113
what form do you use to assign a registered lease or an unregistered lease with more than 7 years left?
TR1
114
When is a notice to complete served and how long does it give the breaching party to complete? and consequences of not doing this?
- if a party fails to complete
- gives breaching party 10 working days (exclusive of date of service) to complete
- if they don't do it- innocent party can rescind, keep deposit. resell to another buyer, and claim damages
115
what does an LLC1 search look for? ALWAYS MADE AS PART OF A TRANSACTION
- local land charges eg
- smoke control orders
- conservation area orders
- financial charges
- tree preservation orders
- planning permissions granted
- listed building status
116
Who is a bankruptcy search done against?
individual seller before completion
117
reservation of benefit- tax implications
- someone gifts an asset but actually keeps enjoying it
- causes double taxation- is taxed for CGT and IHT
118
when does a charitable gift reduce IHT rate? and by how much?
- if 10% or more of the net value of the estate is given to charity
- reduces from 40% to 36%
119
personal allowance for Income tax for income over 100,000
- for every £2 of net income above £100k you lose £1 of personal allowance
- when you reach £125,140 you have none left
-to work out the personal allowance for someone with net income between 100k and 125,140:
12,570 - (net income- 100k) /2
120
RNRB when does it apply
- giving home to lineal descendant
- means children or grandchildren OR widow/widower of children/grandchildren
121
How do you work out tax liability for NSI (national savings and investments) tax
move up the bands
- 20% up to £37,700
- 40% from 37,701- 125,140
- 45% over 125,140
add the three figures together (if necessary) and then deduct personal allowance if applicable- doesn't apply to sole traders
122
Business property relief and when are you eligible
- means no IHT is payable on the asset
in order to be eligible
- need to have owned the business asset for at least 2 years
-100% applies to shares in private company or interest in one (sole trader or partner)
- 50% applies to shares controlling 50% or more in a listed company or land
123
over what amount of money do you pay SDLT on the purchase of commercial buildings?
£150k
124
do companies pay CGT?
No but they pay Corporation tax on gains which forms part of a company's total taxable profits
125
BADR- how much is the tax relief and what are the conditions?
- reduced CGT rate to 10% regardless of the amount of gain up to £1m (lifetime limit)
-The conditions are:
-if selling a business or part of a business, you must be a sole trader or business partner who has owned the business for at least two years (up to date of sale).
- If selling shares, for at least 2 years (up to date of sale) you must be an employee or director of the company and owned at least 5% of ordinary shares and it must be a trading company.
126
How long do you have to pay SDLT?
14 days
127
exempt assets for CGT?
The main exempt assets are the - main home,
- car for private use,
- damages,
- lottery winnings,
- chattels worth less than £6,000 and
- white goods.
128
Holdover relief what is it
holdover relief is a way of deferring the payment of CGT. The donee of a business asset (shares) pays the CGT when the shares are sold by the donee. The donor does not pay CGT, Both must elect to use it.
129
rollover relief
rollover relief is a way of deferring CGT (for a sole trader) or tax on capital profits (for a company). It is when a trader or company sells a qualifying business asset then rolls the gain into the cost of a replacement qualifying business asset. Capital gains is paid when no replacement QBA is bought.
130
VAT- what is the standard rate, reduced rate and 0 rate? and what kind of thing is in each section?
- Most items are standard rated for VAT (20%).
- The reduced rate (5%) applies to domestic supplies, like heating and water.
- The zero rate applies to food (except takeaway and restaurant food), newspapers, books and children’s clothes. Education, insurance, postage stamps and finance are exempt from VAT.
131
What is the threshold for registering for VAT?
The VAT threshold is £90,000 of taxable sales in a rolling 12-month period.
If that is crossed, the trader must register for VAT within 30 days of the end of the month when they crossed the threshold.
132
