Wrong Answers From Questions Flashcards
What is Article 2 (ECHR)?
Article 2 imposes a general positive duty on the State to have a system to protect life. An investigation should be considered where it may be necessary to examine the causation of a serious incident or multiple serious incidents (e.g. a cluster of suicides) that could indicate systemic failures to protect life. Investigation should be carried out by someone independent from those implicated in events.
What is the test for when a claimants act may be an intervening act that breaks the chain of causation?
The test that is applied for when the act of the claimant themselves may be an intervening act and break the chain of causation is whether their act was entirely reasonable in the circumstances that they were in at the time.
A business is in financial difficulties. The owner explains the position to his workers. The workers agree to accept half their usual wages for the time being in the hope that the financial position of the business will improve. After three months of receiving half pay there has been no turn around in the fortunes of the business, but the workers want to go back to their full rate of pay. The workers go to the owner and demand that their wages be put back up to full pay with immediate effect. Is the demand enforceable?
The general rule is that part payment of a debt is not sufficient consideration for a promise to forgo the balance. However, the owner can rely on the doctrine of promissory estoppel. The promise to accept half pay was open-ended. As this is a case of ongoing payments the effect of the doctrine is to suspend the workers’ right to full pay, and reasonable notice must be given in order to revive the right to full pay going forwards.
What is promissory estoppel?
Within contract law, promissory estoppel refers to the doctrine that a party may recover on the basis of a promise made when the party’s reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise.
How long can someone be detained at police station?
24 hours from when they arrived. Review clock is every 6 hours by inspector from time detention authorised
What is S 25 notice Landlord and Tenant Act 1954?
Security of tenure gives tenant right to be offered new tenancy at end of term. Applies unless landlords and tenants opt out. If landlord wants to end tenancy or offer lease on new terms must serve s 25 6-12 months before landlord wants tenancy to end. Earliest can be served is 12 months before exam completion date.
Can someone bring a claim on an EU directive that has direct effect after IP completion day?
Only if rights from directive have been recognised by UK or EU court or tribunal before IP completion day as this will become retained EU law. Can be relied vertically against state even if not implemented.
Can previous convictions be raised at trial?
Previous convictions may be raised at trial through one or more of the 7 gateways which are set out in s101(1) of the Criminal Justice Act 2003. Gateway (d) is likely to apply, namely the previous convictions are relevant to an important matter in issue between the defendant and the prosecution. That issue is whether the defendant has a propensity to commit offences of the kind with which they are charged, and the fact that the defendant has previously been convicted of offences of the same description (common assault) may be relevant
Claim value in high court?
£100,000
In negligence what is a secondary victim?
Not in immediate area of danger
What is the Alcock criteria?
psychiatric harm would be foreseeable in the ordinary mother; she is the mother of a child in the incident; she witnessed the incident with her own unaided senses i.e not on TV
When is severance affected for LPA?
Never for legal estate. Equity: notice in writing to anyone with beneficial interest or mutual agreement
How should purchaser of property’s solicitor ensure mortgage is discharged?
purchaser needs there to be an express obligation on the seller to both discharge the mortgage and hand over evidence of the discharge as soon as it is received from the seller’s lender. As the seller is in financial difficulty and relying on the proceeds of sale of the property to discharge the mortgage, this can only happen on completion of the sale. In such circumstances, it is common practice for completion to take place on the basis of an undertaking given by the seller’s solicitor.
What is exclusive cognisance (parliamentary privilege)?
Parliament has exclusive cognisance to determine its own rules and procedures - here Parliament has passed rules expressly banning the Lord’s activities, so the Lord will be disciplined in accordance with Parliament’s rules.
Where are restricted covenants and other interests in registered title found?
Charges register
When does business property relief apply in inheritance tax?
Unquoted, trading company where shares owned for 2 years
What happens to lease when tenant buys freehold?
Lease ends and merges with the revision when tenant purchases freehold
When is an alteration to a will valid?
When the alteration is properly executed or the amendment obliterates the original wording. Revocation of original wording by destruction. If testator adds substitute wording the court will find revocation was conditional on new wording taking effect. If sub wording invalid the court will look at evidence to reconstruct original wording
What is the doctrine of complete performance ?
Performance of contractual obligations must be precise and exact and if not payer does not have to pay any part of the price. Exception is where contractor has substantially performed its obligations and the defects are only minor
What is article 8 ECHR
Right to private life
When is article 8 ECHR breached?
If interference is disproportionate will be a breach of Art 8 - a qualified right
When can you derogate from Article 3 ECHR?
Art 3 is protection from torture and inhumane treatment. This can never be derogated from.
What is rule in Halsall v Brizell (positive covenant)
An exception to the default position regarding positive covenants was created by Halsall v Brizell [1957] 1 All ER 371. Here the court decided that if a successor in title accepted the benefit of a right it must also take the burden
A tenant purchase the freehold of his rental property. How is an easement formed when a freehold owner gave the tenant informal permission to erect a sign upon the freeholders adjoining land advertising the tenants business (no mention of sign in transfer)
S62 LPA 1925 - existing privilege upon transfer of the freehold to the tenant. Easement created by implication. There was the following elements: existing privilege, diversity of occupation and conveyance
What is the Actus reus of unlawful act manslaughter?
Do unlawful act, that is dangerous, that causes death. Unlawful act need not be assault
Why is withholding an advocate for 6 days (lawfully under a fictitious act) before being released without charge a breach of the rule of law ?
Detention for length without legal hearing
Does the video identification procedure require consent of the suspect?
PACE Code suspect should be invited to take part in an identification procedure and that the suspect can refuse to consent. The video identification procedure therefore requires consent. Suspect can consent themselves if over 14
Coercive control - what guidance by previous courts may help decide?
Lord Coke in Darnel’s Case 1627: ‘A freeman imprisoned without cause is civilly dead’.
Darnel’s Case involved the principle of habeas corpus. The daughter’s situation here may not be a matter of imprisonment or liberty in the sense discussed by Lord Coke, but judges are entitled to draw parallels across the centuries. Here, the daughter clearly feels fear in the face of the withdrawal of certain freedoms.
How can a buyer of property avoid being bound by an equitable beneficial interest?
If the buyer is not equity’s darling (no notice of the interest) to be sure to take the property free of the interest the buyer must overreach it. As the buyer’s solicitor was made aware of the sister’s claim, steps should be taken to ensure the interest is successfully overreached. The contract will provide for the appointment of a second trustee and the payment of purchase monies to both the seller and the second trustee.
Is there a presumption in favour of mediation?
No - A refusal to an invitation to participate in alternative dispute resolution may be regarded as unreasonable but this is not automatic.
An MP posts a defamatory tweet about a famous doctor during a parliamentary debate on standards in the medical profession. The statement is clearly untrue. Can doctor sue the MP?
correct – if the MP’s tweet can be established to be part of the debate on medical standards, then the MP may be able to exert Parliamentary Privilege to defend a civil action by the doctor. Doctor needs to establish MPs tweet did not form part of proceeding in parliament
Explain tracing rules (mixed trust assets)
starting presumption is derived from Clayton’s case – the first money into the account is the first money out. might seek to claim that the rule from Clayton’s case has resulted in an unjust outcome. Under Barlow Clowes v Vaughan, the court might decide that the outcome arising under Clayton’s case should be disapplied in favour of the court’s own scheme
What type of economic loss is and is not recoverable in a negligence claim? Is
Pure economic loss isn’t but consequential economic loss is
Who can bring claim for a breach of a ECHR breach of convention?
A claimant can only bring proceedings for breach of a Convention right if they are a ‘victim’ as per s 7 of the HRA; ie directly and personally affected
What should the solicitor do if they know their client has given the court false info?
John Francis Bridgwood (1989) LS Gaz 5 July, 86 (11)) is that where, to the knowledge of the solicitor, the client seeks to give to the court false information, the client should try to persuade the client to change his mind and that, unless the client changes his mind, the solicitor will have to withdraw from acting.
Which search best describes the pre-contract searches and enquiries that should be raised to find out more about maintenance responsibilities in relation to the private road when using the Law Society Protocol. Re registered land
Pre-contract enquiries of the seller using Property Information Form TA06.
Describe when a bank can exercise its power of sale?
The power of sale must exist, have arisen and become exercisable. Often the power exists if expressly stated in the mortgage deed. It will have arisen if the legal date for redemption has passed. This date is usually one month into the mortgage term or when any instalment of the mortgage money has become due under an instalment mortgage. It is exercisable either under the express terms of the mortgage or under any of the circumstances set out in s103 of the Law of Property Act 1925 (“LPA25”). These circumstances are as follows:-
1. the lender has given the borrower notice to repay the loan amount and the borrower has not paid the sum for three months after such notice; or
2. interest is in arrears for two months after becoming due: or
3. the borrower has breached a term of the mortgage (other than the covenant to pay the mortgage money or the interest thereon).
Who can appeal a trial judges sentence in the crown court
Attorney general can appeal to the Court of Appeal Crim Div
Is parliamentary approval needed for air strikes oversea?
Yes cabinet manual states government has acknowledged a convention has developed that HoC should have opportunity to debate a matter before military action is taken except if an emergency exists. Taking military action is a prerogative power.
A developer invites a contractor to bid for tender but does not consider the tender. Is there any recourse for the contractor?
Yes under Blackpool v Fylde there is an implied offer of unilateral contract and implied obligation to consider conforming tenders. Can sue for breach of unilateral contract. May be awarded loss of opportunity even if difficult to assess.
Court of appeal used decision in previous case. What is this called?
Applying the decision
Higher crim court agrees with decision of lower court. What is this called?
Affirming the case
Can a lender of a second mortgage of a company exercise power of sale?
Power of sale is implied into every mortgage deed under Law of Property Act 1925, as long as power of sale has arisen and become exercisable. Power arises when redemption date has passed and becomes exercisable in accordance with mortgage deed or when one of the circumstances in the act is met.
A woman dies at work. Who can claim bereavement damages ?
Husband (not kids) - Fatal Accidents Act 1976
For purposes of criminal damages when is intoxication a defence?
If intoxicated when taking a non dangerous or prescribed drug which led to unusual circumstances. It is a defence when the defendant lacks mens rea (e.g has no recollection of events)
Are salaries a deductible expense of business for tax purposes ?
Yes
When is a burglary aggravated?
Most serious type of burglary - burglary: entering building as trespasser with intent to commit criminal damage, theft of GBH a weapon. Aggravated: has firearm, weapon, explosive or article adapted to be used for causing injury
Woman murdered someone - what is course procedure?
Indictment only so will be sent to crown court for trial. Tried in front on jury. Will be sent to preliminary hearing at mag but they do not consider the evidence.
What is a valid ground for appeal at Supreme Court from court of appeal (crim)
Point of law of general public importance that ought be considered (not new evidence where defendant has real chance of success)
What forms part of companies constitution?
Under section 17 of the Companies Act 2006, a company’s constitution comprises the company’s articles, memorandum of association and the resolutions and agreements specified in section 29, principal amongst which are shareholder special resolutions and agreements and court orders and legislation which affect the company’s constitution.
In considering both damages and injunctions as remedies under the tort of private nuisance, which three equitable remedies may only be granted by the court having regard to all of the circumstances of the case?
Mandatory injunction, prohibitory injunction, and ‘quia timet’
What is quia timet?
Quia timet, is a common law injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced
The owner of a registered freehold house entered into a civil partnership with his partner who subsequently moved into the house. After occupying the property for many years the relationship is now in difficulty and the partner has left the house. Can he claim an interest?
The partner may claim a right of occupation under s30 FLA 1996 as long as the property was, is or intended to be the matrimonial home and as long as the partners are still legally married or in a civil partnership. However, in order to protect the interest, it must be registered as a notice on the Charges Register of the property by the date of registration of a buyer’s interest
How should traditional partnerships be named on a claim form?
Name of firm
How many days from notice can of general meeting of shareholders be held?
14 clear days not including day notice is handed by person
Do applicants of legal aid need to satisfy means test?
No
What tests are needed to be satisfied to get a representation order for legal aid?
- Interest of justice test and 2. Means test
What is the correct test for factual causation where there are two separate tortious acts, which simultaneously cause damage to the client.
Did the breach of duty make a material contribution to the injuries suffered by the client.
Can negligence liability for PI be excluded under UCTA?
No
When can an agreement made under economic duress be affirmed?
If an agreement (i.e to pay more money) is made but then the upper hand is lifted and you go on to pay that money then the agreement is affirmed.
What are the three requirements for vicarious liability?
- Breach duty of care 2. Breach caused loss that wasn’t too remote 3. Employee therefore negligent in course of employment
What should be set out in case summary for CMC?
set out a brief chronology, state the agreed and disputed issues, and set out any evidence required to decide the disputed issues.
A claim is made against estate under the Inheritance (Provision for Family and Dependants) Act 1975. When are PRs not personally liable?
If they waited over six months from the grant to distribute the estate, but the claimant can recover monies from the beneficiaries, if the court permits an application and it succeeds.
A client bought a house and promised his son and daughter-in-law that if they occupied the house and made all the mortgage repayments on the house he would transfer the house to them. The couple duly started to make the mortgage repayments but then there was a dispute. The client told the couple he had changed his mind and sought to repossess the house. What is legal position?
Breach of unilateral contract and implied promise not to revoke offer once act started
Before proceedings are commenced, the claimant invites the defendant on several occasions to enter into mediation of the claim. The defendant never responds to any of these proposals.
What consequences may follow for the defendant’s failure to respond to proposed mediation if court proceedings are started by the claimant?
By way of information, the Practice Direction on Pre-Action Conduct and Protocols (the PD) provides that if a dispute proceeds to litigation, the court will expect the parties to have complied with the PD. Non-compliance with the PD includes any party that failed to respond at all to an invitation to resolve the dispute by ADR. The court may impose sanctions for non-compliance including (a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties and (b) an order that the party at fault pay those costs on an indemnity basis.
Who can authorise delay in notifying someone of their arrest and for how long ?
Section 56 of the Police and Criminal Evidence Act 1984 allows the police to authorise a delay of up to 36 hours to a suspect’s right to notify one person of their arrest if the offence for which that suspect has been arrested is an indictable offence. Wounding under ss 18 or 20 of the Offences Against the Person Act are both indictable offences. Further, the delay may only be authorised by an officer of at least the rank of inspector, not conducted with the investigation.
What are elements of simple criminal damage?
Damage without lawful excuse. He was reckless as to the damage and knew the window belonged to his neighbour.
A client decided to set up his own cafe. He took a lease of premises and asked his sister, owner of ‘1st Choice Blinds’, to supply and fit a large awning at the back of the premises to provide extra covered seating for customers. His sister agreed and made and fitted the awning. The client was delighted with what she had done and said he would give her £1,000 for her trouble. What is legal position.
On the face of it what the sister did looks like past consideration (which is not good consideration) but the exception may apply (Re Casey’s Patents). The act was done at the client’s request. Query whether it was mutually understood that she would get something for what she did. It looks like a large job. Had the promise been made in advance would it have been legally enforceable? This will hinge on contractual intention. With family arrangements (eg between brother and sister) there is a rebuttable presumption the parties did not intend to create legal relations; whereas in a commercial context (business-to-business), which it looks like here, there is a very strong presumption the parties intended legal relations (see Chapter 2).
Is a willingness to pay proof of lack of dishonest?
The woman may be dishonest as s 2(2) of the TA 1968 states that a willingness to pay is not in itself proof of a lack of dishonesty.
What are justices of the peace?
Magistrates
Difference between contract void by frustration and common mistake?
Frustration applies to a supervening event, Common mistake (where the mistake is shared by both parties, is fundamental and directly affects the basic definition of what the parties are contracting for). The mistake will render the contract void if it robs it of all substance.
Must a trustee pay income to contingent beneficiary on request?
Yes
What is the golden rule?
The interpretation of one meaning of a word over another is used to avoid an absurdity.
What is a de facto director of a company
A de facto director is someone who has never been formally appointed, as here, but nevertheless acts as a director. Here the client has been acting as a director, for example for being responsible for the sale and purchase of metals, and is likely to be seen as a de facto director.
Will the court uphold legislation even if there has been some irregularity during its passage through Parliament.
Yes - the Enrolled Act rule provides that, once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void (Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710).
What documents can beneficiaries request from trustees?
The Trust Deed, the trust accounts and a current schedule of investments.
A man created a trust and appointed two people to act as trustees for “such of my children who attain the age of 21 years”. The beneficiaries under the trust are aged 18, 19 and 21 years of age. The beneficiaries have fallen out with one of the trustees and would like to force them to retire. The declaration of trust contained no express provision dealing with the appointment or retirement of trustees. Can they force retirement?
The beneficiaries can direct a trustee to retire if the conditions set out in s19 of the Trusts of Land and Appointment of Trustees Act 1996 are met. In this case, they are all of full age and capacity and are together absolutely entitled to the trust fund, as the 21 year old has satisfied the contingency. They would need to appoint a replacement as there must be at least two trustees left once the outgoing trustee retires.
Once personal representatives have taken the grant, they cannot retire. How should they be replaced?
The beneficiaries can apply to the court to replace the executors under s50 Administration of Justice Act 1985.
What is a codifying statue?
The Act codifies the law in the particular area it covers by bringing together that previously contained in three different pieces of legislation and in common law decisions, as well as modifying some aspects of the latter.
What is a consolidating statue?
A consolidating statute is one which merely re-enacts law previously contained in several different statutes and there is a rebuttable presumption that such a statute does not materially alter the previous law.
Is an equitable interest under a trust (such as a mother’s) capable of being registered as a land charge in unreg title?
No - will be binding if have notice
What is restitution?
A remedy based upon the principle of unjust enrichment. For the claimant to bring a restitutionary claim, the defendant must have been unjustly enriched at the expense of the claimant. A restitutionary remedy seeks to reverse that unjust enrichment, by restoring the relevant benefit or enrichment to the claimant. Doesn’t work if loads of amendments were made to the property
What is indirect intent?
the court will infer that D did intend the result if it was both virtually certain to occur and D appreciated this fact
Five years ago, the owner of a large country estate sold part of the land to his neighbour. The land sold included a small cottage. In the transfer of the land the neighbour agreed to only use the cottage for residential purposes and also agreed not to allow the cottage to fall into disrepair. Both covenants were registered at the Land Registry. Last year the neighbour sold the cottage to a property developer. Who will have burden of covenant?
burden of the restrictive covenant will pass at equity to burden the property developer under the rule in Tulk v Moxhay. The covenant only to use the cottage for residential purposes:
is negative (or restrictive) in substance;
was made to benefit the dominant land;
touched and concerned the dominant land;
was made with the intent of burdening the servient land; and
the property developer had notice of the covenant.
The burden of neither covenant will pass at common law (as confirmed in Austerberry v Corporation of Oldham).
What is reversing a decision ?
Reversing is where a higher court disagrees with the earlier decision, in the same proceedings, of a lower court.
What is overruling a decision?
overruling is where a higher court comments on a previous unrelated decision by a lower court and declares it to be wrong.
When is a legal lease an overriding interest?
Less than 7 years
A client instructs a solicitor following a road traffic accident involving their spouse. The client’s spouse suffered injuries from the accident, survived for a period of two months but then died as a result of their injuries. The client alleges that the road traffic accident occurred as a result of another driver’s negligence. At the time of the accident the client’s spouse worked as a managing director of a large supermarket chain. The client is the sole beneficiary under their spouse’s will. The reasonable funeral expenses have been paid by the estate. What damages can be claimed.
Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover damages for the loss of amenity suffered by their spouse during the two month survival period. where funeral expenses are reasonable in amount and paid by the estate, they are recoverable under the Law Reform (Miscellaneous Provisions) Act 1934. Can claim for property destroyed
What is recoverable under Fatal Accidents Act and who can claim?
Loss of dependency (being the loss of pecuniary benefits which the client would have received from his spouse, and which might include the loss of her future earnings) are recoverable. bereavement award is recoverable by the spouse
The solicitor from the Crown Prosecution Service (‘the CPS’) who presented the prosecution case at the woman’s trial believes that the woman was acquitted because the magistrates misunderstood the law of theft. What does CPS do?
As the magistrates appear to have made an error of law, the CPS is entitled to appeal to the High Court by way of case stated (accordingly, option E is wrong). This will require the magistrates to explain (in writing) the legal basis on which they acquitted the woman. This is the only right of appeal open to the CPS.
What is the commercial rent arrears recovery procedure (‘CRAR’).
statutory procedure which allows landlords of commercial premises to recover rent arrears by taking control of the tenant’s goods and selling them. The arrears must be at least seven days’ worth or more at the time the notice is served and at the time of enforcement
You do not have the right to seize your tenant’s goods yourself; they can only be seized by a certified enforcement agent. landlord must provide 7 days notice of enforcement
What happens to solicitors duty of confidentiality when client dies?
Passes to PRs
How is the duty to exercise reasonable care, skill and diligence twofold?
Example using a director: The objective element (directors must possess the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions of a director) applies to all directors, whereas the subjective element (the standard of reasonableness being assessed by such knowledge, skill and experience that the director has) only applies to directors who have some special skill or ability. The objective element of the duty establishes a minimum standard that applies to all directors. The subjective element only applies to directors who have some special skill or ability and will serve to raise the standard of such directors.
What is the mischief rule?
The mischief rule means someone interpreting an Act of Parliament can, or should, assess the reason for the Act’s provisions, to assess the problem which the Act is designed to correct. The mischief rule would be relevant as there is mention of the Act’s aims.
What is apparent authority?
When principle represents to client that agent had authority e.g agent running show room
When does time run to file defence is AOS filed
The defendant filed an acknowledgement of service, so its defence must be served no later than 28 days from deemed service of the particulars of claim (not CF)
Can professional trustees be paid?
As a trustee acting in a professional capacity, T1 will be entitled to reasonable remuneration agreed to by T2.
What are formalities to set up lifetime trust?
The formalities required to set up a lifetime trust are a valid declaration of trust (which has been made and evidenced in signed writing) and transfer of the legal title to the trustee. Legal title to a flat would have been transferred by:
execution of a deed pursuant to s52 Law of Property Act 1925 by the woman;
that deed being sent to either the accountant or Land Registry; and
Land Registry registering the accountant as the new registered proprietor of the flat.
What is article 10?
Freedom of expression
When can freedom of expression be interfered with?
Freedom of expression is a qualified right, meaning that it can be interfered with when that interference is prescribed by law, in pursuit of a legitimate aim and proportionate.
Is a 12 month lease where rent is paid weekly a 12 month fixed term lease or period lease?
The length of period of a periodic tenancy is determined by reference to the period for which the rental payments are payable. However, since on these facts the tenant is clearly still occupying the property under the 12-month fixed term tenancy, this is not a weekly periodic tenancy (although it may become one if she remains in occupation after the end of the 12-month term).
When can defence of lawful excuse be used for criminal damage?
Need to have honest belief of excuse (need not be reasonable) - intoxication doesn’t effect this
A man is knocking down a small brick wall on his property, as he wishes to remove it, and he plans to remove it by knocking it with a large hammer. The brick wall is within 5 meters of his neighbour’s car. The man decides to face away from his neighbour’s car as he knocks the wall down, as he hopes that doing so will somewhat reduce the risk of the bricks hitting his neighbour’s car and causing damage to it, which he knows his neighbour would be upset about. Unfortunately one of the bricks does hit the neighbour’s car, causing a dent on one of the door panels.
Does he have mens rea for criminal damage?
The man has the mens rea of recklessness because he foresaw that there was a risk that his actions would damage the car and he went on to take the risk anyway.
How do PRs transfer land?
Land is transferred by the PRs by an assent which, under s.36(4) of the Administration of Estates Act 1925, must be in writing, must be signed by the PRs and must name the person in whose favour it is made
For what crime is diminished responsibility a partial defence?
Diminished responsibility is a partial defence to murder. It means that the accused was suffering from an abnormality of mental functioning, so much so that they were not in control of their actions. If the jury accepts the defence, the murder charge must be downgraded to that of voluntary manslaughter.
The defendant must prove that on the balance of probabilities:
He was suffering from an abnormality of mental functioning;
Which arose from the illness;
Which impaired his ability to understand the nature of his conduct, and/or form a rational judgment, and/or exercise self-control; and
This provides an explanation for the stabbing.
What is Schumer v Wickman (commercial contract not draft by lawyers, condition broken)
On the face of it, the contract had not been drafted by a lawyer and the parties must have known the term would be breached at some time or another. Consequently, they could not have intended one breach to justify terminating the contract - Schuler v Wickman.
What recourse is there for entering into a contract under misrepresentation ?
Rescind or claim damages. If the contract has been fully perform you may not be able to rescind e.g had windows installed. Damages should be claimed instead to put you back in the position you would have been if it weren’t for the breach
What are the type of damages you can receive under contract law.
Compensatory damages, punitive damages, liquidated damages, restitutionary damages or nominal damages.
Compensatory damages of the most common, and aim to compensate the victim of the breach of contract for their loss.
Punitive damages are rare in civil law. Mainly used to criminal law. They are not used in commercial contracts. Aim to punish
what is the mens rea for involuntary manslaughter?
There is no single definition of mens rea for unlawful act manslaughter– the mens rea required is whatever the mens rea of the unlawful act is. If the unlawful act is setting fire to a building he must have the mens rea for arson, which he does as he intentionally sets fire to property, belonging to another and he knows that it belongs to another.
What is involuntary manslaughter?
Involuntary manslaughter is defined as an individual who has committed an unlawful killing without an intention to cause grievous bodily harm or kill the victim, causing the death by recklessness or gross negligence instead.
What is the actus reus of involuntary manslaughter?
Doing the unlawful act, that is dangerous, and causes the death of the victim
Is sexual infidelity a qualifying trigger of the partial defence of loss and control
No
Is acting out of revenge precluded from the partial defence of loss and control?
Yes, it’s precluded from the legislation, and if you act of revenge, you can therefore not claim the partial defence of the loss of control
Is s9.1b of burglary, satisfied when the defendant, commits the offence of criminal damage
No - attempt to steal, or steal, or attempt to cause, or cause, GBH
What is burglary pursuant to section 9.1.a pursuant to the theft act
a)he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below;
2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein, and of doing unlawful damage to the building or anything therein.
What is article 5 of the European Convention on human rights?
Right to liberty and security
Can ministers derogate from article 5.
Yes, it could be derogate from in times or of public emergency, threatening the life of the nation under article 15. However, such derogation can only be strictly
In the particulars of claim, will the interest rate on the damages, be the same as the contractual interest rate for the late payment of a debt?
No, the contractual interest rate applies to late payment of debt. Instead the solicitor should claim interest under section 35A of the senior courts act 1981 at such rate and for such period is the courts sees fit to award
What is the time period for serving a section 25 notice pursuant to the landlord and tenant act 1954
12 months prior to the contractual expiry date of the lease
How can a landlord claim a fixed charge, including rent, from a former tenant, pursuant to Landlord and Tenant Act 1995?
A section 17 default notice must be served on the former tenant within six months of that sum becoming due and payable
When is a lease governed by the Landlord and Tenant (Covenants) Act 1995
New leases granted after 1 January 1996
If there is two mortgages over a registered property, who gets priority overpayment?
Both mortgages were created by deed and registered, so they are legal mortgages. Priority between registered legal mortgages is governed by s48 of the Land Registration Act 2002 and the first to appear on the register takes priority. The bank’s mortgage was registered first and therefore has priority over the building society’s mortgage.
What best describes the position regarding distribution of the sale proceeds following the sale of land by a bank pursuant to a legal mortgage
The application of sale proceeds following a sale by a mortgagee is governed by s105 of the Law of Property Act 1925 and, firstly, requires the redemption of any prior mortgage to which the sale is not made subject, that is any mortgage which has priority over the selling mortgagee’s mortgage – here the mortgage in favour of the bank.
Secondly, the selling mortgagee’s (here the building society) expenses of sale will be paid. Thirdly, the selling mortgagee’s mortgage (here the building society) will be redeemed and, finally, any surplus will be paid to the owner.
What is the common law position regarding mental capacity and the validity of wills?
the presumption is that mental states persist so that if the man usually had capacity it will be presumed that he had capacity on this particular occasion unless there is something that might alert the propounder of the will to a lack of capacity. For example this might occur if the will is not rational on its face.
What is De Keyser principle?
if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules’.
How to ensure seller isn’t burdened by beneficial interests in the property ?
Pay capital money to two trustees (the married couple). This has the effect of lifting the beneficial interests off the beneficiaries as a consequence of their contribution to the purchase price) from the property and to the proceeds of sale (ie the loan advance from the lender).
If an exploding on a clients property damaged the neighbour’s roof, but the accident was not the clients fault, are they liable to pay for damage ?
If the clients use of the land is non-natural and the accident caused damaged that was forseeable then yes.
Rylands v Fletcher - non natural use of land, thing escapes, type of harm foreseeable even if likelyhood of escaping is low
What is rule in Rylands v Fletcher
The rule holds that where there has been an escape of a dangerous thing in the course of a non-natural use of land, the occupier of that land is liable for the damage to another caused as a result of the escape, irrespective of fault.
What does a defendant need to show for partial defence of loss and control
- He had lost self control as a result of a qualifying trigger; and
- A person of D’s age and sex with normal degree of tolerance and self restraint might have reacted in the same way
What are the qualifying triggers for loss and control defence?
55 (3) Where D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. or
S.55 (4) Where D’s loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
Limitations on qualifying triggers of loss and control
S.55(6)(a) The fact that a thing done or said constituted sexual infidelity is to be disregarded.
S.55(6)(b) A person may not raise a qualifying trigger if they incited the thing done or said or the violence.
What type of offence is robber?
Indictment only
Who decides if an alibi is true for offence of robber?
The judge will direct the jury on points of law but this is a question of fact for the jury to decide.
The judge considers points of law and directs the jury and they must then apply it to the facts of the case.
How is a deposit held in a contract for the sale of freehold property is to incorporate Part 1 of the Standard Commercial Property Conditions (Third Edition – 2018 Revision) without amendment.
The deposit will be 10% and will be held as stakeholder and the seller will not be able to spend it without the buyer’s consent before completion.
A man bought a house two years ago. He has started court proceedings against his surveyor alleging that she negligently failed to report on the defective construction of the house.
Today, the surveyor has acknowledged service of proceedings and indicated her intention to defend the proceedings.
Today, the surveyor has also been informed by her insurance company that the man’s claim is not covered by the terms of her policy. The surveyor has been informed that this is arguably wrong.
Issue a Part 20 claim for an indemnity against her insurance company.
At a general meeting of the shareholders, a company has passed a resolution removing one of its directors. What needs to be filed at CH?
Form TM01 informing Companies House of the termination of an appointment of a director must be sent within 14 day of the date when the appointment was terminated
Which resolutions need to be filed at CH?
Only copies of special resolutions need to be sent to Companies House.
A person got in an accident, spent 2 weeks in hospital and in pain, and then died. What can be claimed by the estate?
estate can bring a claim for damages for the pain and suffering experienced in the period between the accident and death, loss of earnings (if there is a loss) under the Law Reform (Miscellaneous Provisions) Act 1934.
there are three possible claims under the Fatal Accidents Act - loss of dependency, bereavement and funeral expenses if paid by the dependants.
“My firm will get the £20,000 to you by 10 am tomorrow.” Who is liable for this undertaking?
Both the solicitor and the firm are liable, because the statement made by the solicitor amounts to an undertaking binding on both the individual and the firm.
Trustee delegated her functions to someone else. Is she liable for their defaults?
The trustee who appointed the attorney is automatically liable for any defaults of the attorney and will therefore be in breach of trust
When is a claim under the Consumer Protect Act applicable?
The CPA applies to all consumer products and products used at a place of work. The inclusion of ‘products used at a place of work’ extends the scope of the law to include sales of products between businesses rather than just sales to consumers if such products are used in a place of work.
A claim may be brought under the CPA by any person who is injured by a ‘defective product’, regardless of whether that person purchased the product.
What claims can be brought under the Consumer Protection Act?
A claim may be brought for:
1. death;
2. personal injury; or
3. damage to private property in excess of £275.
However, no claim may be brought for damage to business property or for ‘pure’ economic losses. In particular, the CPA provides that a claim cannot be made for the loss of or damage to the defective product itself. Other than these restrictions, the CPA imposes no financial limit on the producer’s total liability.
Who is liable under CPA?
Under the CPA, the ‘producer’ of a product is liable for any defects. The producer is the manufacturer of the finished product or of a component of the finished product, or any person responsible for an industrial or other process to which any essential characteristic of the product is attributable. Liability may also be imposed on any party who holds itself out to be the producer through the use of a name or trade mark, and any person who imported the product into the European Community.
As such, there may be more than one party liable under the CPA in respect of the same damage. Liability is joint and several, so the injured party may sue any or all of these people. Liability cannot be excluded or limited.
What needs to be filed with the Registrar of Companies following the change of name of a company?
A copy of the shareholder special resolution to change the name, the appropriate form and the prescribed fee.
Does duress make a contract void?
duress makes a contract voidable, not void.
How do PRs protect against unknown creditors?
Put an advertisement in the Gazette and wait 2 months from placing the advert to distributing the assets
How do PRs protect against known creditors who can’t be traced?
Obtain a Benjamin Order
If there is a licenses to an easement to a flat, and the lease expired and there a new lease was granted on identical terms, does the tenant have right of the easement?
Yes, section 62 LPA transformed license easement into a legal easement but has to have 1) diversity of occupation and 2)the existing right could exist as an easement
What are the 2 grounds the Court can refuse an application for Summary Judgment?
- Basis of compelling reason; or
- Defendant has a real prospect of defending the claim
A baker’s shop entered into a contract to bake a cake that was to be iced with a gay rights slogan. The bakers subsequently refused to bake the cake on the basis that the owners were devout Christians and they sought to refund the customer instead. Is the baker in breach of contract?
The bakers’ refusal to perform the contract was legal because the bakers should not be forced to express a political opinion in which they did not believe - this would have breached the bakers human rights.
If a director runs a company that is insolvent (i.e cannot pay its debts as they fall due) what is the repercussions?
can therefore be subject to disqualification orders on the ground that their conduct as directors makes them unfit to be concerned in the management of a company (Company Directors Disqualification Act 1986). The woman and the man continued operating the company when it was making a loss, and continued to incur debts, so putting the creditors at risk, and continued paying themselves excessive remuneration. If disqualification order re made the Court will specify the period for disqualification as being between 2 and 15 years
How many days before the CMC must a costs budget be filed?
With the directions Q for a claim under £50,000 and 21 days for a claim over £50,000.
In which court can a layman be a judge with the correct training?
Magistrates (not district judge at magistrates court), or employment tribunal (you have 3 judges, 1 legally qualified and the other 2 are layman).
If someone, by way of deed, granted someone the right to use their parking space, would this constitute a legal easement?
No as it would interfere with the owner’s reasonable enjoyment of their parking space as the whole space can be used all the time.
Is a law firm under a duty to install disabled ramps even if there are no disabled people in the company?
Yes - the firm is under a duty to make reasonable adjustments, taking into account the cost of making the adjustment, the nature of the service being provided and the size of the firm.
When can someone be liable for pure economic loss in tort?
If they have a special relationship with the claimant.
If a solicitor, under the Law Society formula B, wanted to put their client’s contract in the post the following day, and send the deposit by electronic transfer, what would need to be varied in the formula?
Firstly, the deposit will be sent by electronic means as per Standard Commercial Property Condition 3.2.2 rather than by banker’s draft or cheque as provided for in the undertakings contained in formula B. This means option B is also wrong. Secondly, the Buyer’s solicitor will not be able to comply with the undertaking in formula B to put their client’s part contract in the first class post/DX today so will need to vary the formula to provide that this will be done tomorrow instead.
What is the doctrine of lost modern grant
Any period of 20 years’ continuous user that is not enjoyed by force, by stealth or with permission gives rise to a presumption that an easement was formally granted. The presumption is not rebuttable.
What are the characteristics of an express legal easement?
- There must be a dominant and servient tenement;
- The easement must accommodate the dominant tenement;
- The dominant and servient owners must be different people;
- The right must be capable of forming the subject matter of a grant; and
- It must have been created by deed.
What are the characteristics of an express equitable easement
The easement needs to be in writing and signed by (or on behalf) of both parties.
What are the characteristics of an easement of necessity?
An easement of necessity would only arise on a sale of part. Easements by necessity are only implied if no use could be made of the land at all without the easement
What are the characteristics of an easement made by way of prescription?
There are 3 methods:
1. at common law
2. Lost modern grant
3. Under the Prescription Act 1832
For an easement to arise by prescription, the use must be continuous for a period of at least 20 years. Secondly, it is necessary for the easement to be exercised “as of right”. The facts indicate that the lady has been granted permission in return for payment and therefore her use would not be as of right.
What are the characteristics of an easement made by way of prescription?
For an easement to arise by prescription, the use must be continuous for a period of at least 20 years. Secondly, it is necessary for the easement to be exercised “as of right”. The facts indicate that the lady has been granted permission in return for payment and therefore her use would not be as of right.
How do you know if an easement is capable of forming the subject matter of a grant?
- The grant of a right must be made between a capable grantor and grantee; and
- The right:
(a) must not be too wide or vague in
character;
(b) must not amount to a right of joint
occupation or substantially deprive the
servient owner of proprietorship or
legal possession; and
(c) must possess the quality of utility or
benefit
What is the most likely form and content of the Certificate of Title in a large commercial property transaction?
The Certificate will contain a summary of the pre-contract searches and enquiries and will confirm that (subject to any Disclosures made in the Certificate) the property has a “good and marketable title”. The solicitor will have used the City of London Society Certificate of Title.
What is the most likely form and content of the Certificate of Title in a common residential transaction?
The Certificate will confirm that the property has a “good and marketable title”. The solicitor will have used a form approved by the Law Society and UK Finance.
The solicitor is happy with the terms of the draft contract and has reported to his client on the results of title investigation and all searches and enquiries. The solicitor is intending to exchange contracts over the telephone, and completion will take place two weeks after exchange. What else should the solicitor ensure before exchanging contracts?
The solicitor should ensure that the deposit is sitting in his client account in cleared (emphasis on cleared!) funds.
Both sides in a property purchase have agreed to adopt The Law Society Code for Completion by Post (2019). Where will completion take place?
Completion is likely to take place at the office of the seller’s solicitor.
When is form TA13 used in a property transaction?
Form TA13 is mostly used in residential transactions to address the practicalities for completion.
A solicitor is acting for the seller of a registered freehold commercial property. What will be included in the completion statement?
The amount payable for the property and amount payable for any furniture - not amount required to discharge the seller’s mortgage.
When drafting the PoC for a damages claim, do you need to include an interest calculation?
This is only a requirement when a claim is specified - damages is an unspecified claim.
What is implied actual authority?
If the transaction is in the usual authority of such person’s position, then they have implied actual authority to make the purchase.
If Article 8 (right to privacy) & Article 10 (right to freedom of expression) come into conflict, what will the position be?
The court will look at the comparative importance of Article 8 and Article 10 on the facts, the justification for interfering with those rights and apply the proportionality test to each.
Test in Baroness Hale in Campbell v MGN.
If a trust deed excludes maintenance and advancement, can the executor pay any money if the beneficiary has not reached the contingent age?
The trust deed excludes the statutory provisions of maintenance and advancement that would otherwise grant the trustees the power (and, in certain circumstances, impose a duty on the trustees) to pay money to the student before they reach the age of 25. Note that the statutory provisions of maintenance and advancement apply in the absence of any countervailing provisions in the trust deed / will, and the settlor is therefore at liberty to exclude them.
What are the characteristics of unlawful act manslaughter?
The unlawful act must be dangerous as set out in R v Church [1966]. The act must be one that ‘all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of some harm…albeit not serious harm’. Given that the victim of the burglary, the young woman, looks fit and healthy and the boyfriend is unaware of her serious heart condition, the objective test is unlikely to be satisfied.
When is a lease protected by the Landlord and Tenant Act 1954?
Whilst fixed-term tenancies not exceeding six months are not protected, if the tenancy includes a provision allowing for renewal, it will have the protection of the 1954 Act.
When can exclusion clauses from b2b never be excluded?
An exclusion clause can never exclude remedies for:
death or personal injury;
breach of statutory implied terms in consumer contracts.
Under UCTA!
What test do exclusion clauses have to pass to not be void under UCTA?
The reasonableness test.
What is recoverable under the Law Reform (Miscellaneous Provisions) Act 1934?
The Act allows a claim to be made by the deceased’s estate for losses which the deceased would otherwise have been able to recover themselves had the injuries not proven fatal.
It also allows for the continuance of a claim which the deceased may have already brought themselves but not concluded prior to their death.
Very often, compensation included in this Act include compensation for pain, suffering and loss of amenity, just as in any other personal injury claim.
Though the damages are limited up to the date if death but are assessed in the same way as a conventional personal injury claim.
The Act also allows the estate to recover the financial losses which the deceased would otherwise have been permitted to recover themselves including any loss of income up to the date of death, loss of personal effects and other items of loss including any treatment costs or the value of any services given to him prior to death such as care or nursing services.
Funeral costs are often recoverable by the estate, subject to the cost being deemed reasonable and also subject to the costs of the funeral having been incurred by the estate in the first instance.
What is recoverable under the Fatal Accidents Act 1976?
A claim can be brought on behalf of the dependants of the deceased, a fresh cause of action is created, although the claim will only succeed if it can be shown that the deceased would have recovered damages if they were still alive.
Who can bring a claim:
1. spouse or civil partner;
2. formed spouse or civil partner (even if annulled, declared void or dissolved);
3.
What is recoverable under the Fatal Accidents Act 1976?
A claim can be brought on behalf of the dependants of the deceased, a fresh cause of action is created, although the claim will only succeed if it can be shown that the deceased would have recovered damages if they were still alive.
Who can bring a claim:
1. spouse or civil partner;
2. formed spouse or civil partner (even if annulled, declared void or dissolved);
3.any person who:
◦was living in the same household as the
deceased immediately before the date
of death
◦had been living there for at least two
years, and
◦was living during the whole of that
period as if they were the deceased’s
husband or wife or civil partner
4. any parent or other ascendant of the deceased
5. any person who was treated by the deceased as their parent
6. any child or other descendant of the deceased
7. any person (not a child of the deceased) who, in the case of any marriage/civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage/civil partnership
8. any brother, sister, uncle or aunt of the deceased
9. any children of the deceased’s brother, sister, uncle or aunt
Financial dependency is needed to bring a claim.
Who can claim statutory bereavement damages when someone dies?
the deceased’s husband, wife, or civil partner
*if the deceased was younger than 18 and had never married or had a civil partner, their:
◦parents, if they were legitimate
◦mother, if they were illegitimate
For deaths that occur on or after 6 October 2020, a claim for a bereavement award may also be made for the benefit of the cohabiting partner of the deceased who:
*was living with the deceased in the same household immediately before the date of the death
*had been living with the deceased in the same household for at least two years before that date
When did easements become registrable dispositions?
October 2003
What is the test for exclusion notes under the Consumer Rights Act (2015)?
Traders will be subject to the controls under the Consumer Rights Act 2015 and are unable to exclude liability for a consumer visitor’s personal injury. They may be able to exclude liability for other losses (the damage to the car), providing the notice is held to be fair under s62 of the Act.
when you create a dangerous situation, what is your duty under the criminal law?
Having created a dangerous situation of which you are aware, you are under a duty to take reasonable steps to mitigate the results of your own actions.
What is a Section 26 request under the Landlord and Tenant Act 1954?
This is a notice given by the tenant requesting a new tenancy upon termination of the old one. A section 26 request must specify a date on which the existing lease is to end.
When can a tenant serve a Section 26 notice under the Landlord and Tenant act 1954?
As in the case of the landlord’s section 25 notice the date of termination cannot be earlier than six months after the date of the section 26 request nor more than 12 months after that date. A section 26 request cannot bring the existing lease to an end before its normal expiry date.
What are the consequences of a client signing a disclosure statement that is wrong?
If that statement is wrong, you could be imprisoned for contempt of court.
What is form DS3 used for?
Form DS3 is used to release part of the land that is subject to a registered charge.
What is the electronic discharge (e-DS1) used for?
Discharging the whole mortgage.
What can you not claim for under the Consumer Protection Act?
Loss or damage to the product itself
Damage to business products not ordinarily intended for private use
Damage to property with a value below £275
A positive covenant has been breached in a lease assigned 3 times. Who can the landlord sue?
The original tenant and current tenant. This is an old lease, as it was created before 1 January 1996. There is privity of contract between the freehold company and the original tenant. There is also privity of estate between the freehold company and the current tenant. Therefore, there is an action against both the original tenant and the current tenant.
What is the test for defence of lawful excuse for criminal damage?
The woman honestly believed that the property was in immediate danger and the damage was reasonable in the circumstances - this is a subjective not objective test.
When does the duty of disclosure continue until?
The END of a trial.
If a client whose will you are drafting says they are giving you £5,000 in the will, what should you do?
The SRA ethics guidance on drafting wills indicates that where a solicitor is asked to draft a will for a client which includes a gift to the solicitor which is of significant value in relation to the size of the client’s overall estate, or is of significant value in itself the solicitor will usually need to cease acting if the client does not agree to taking independent legal advice.
If a defendant is granted legal aid, will he be required to contribute towards his defence costs in the magistrates’ court and crown court?
The man should consent to summary trial because if granted legal aid in the magistrates’ court, a defendant is not required to contribute towards his defence costs. The
Will the defendant ever be obliged to contribute to the prosecutions costs if convicted?
If a defendant is convicted in either the magistrates’ court or the Crown Court, he is likely to be ordered to make a contribution towards the costs incurred by the prosecution.
which criminal Court are not bound by their own decisions
Magistrates
Which criminal courts are not bound by their own decisions?
Magistrates
In what circumstances can a contract to be void for mistaken identity?
Cundy v Lindsay. If a rouge company represents itself as a different good a respectable company, the contract is VOID due to mistaken identity (unilateral mistake) and therefore the rouge can never acquire title to the goods so it doesn’t matter if the goods are sold to an innocent third party
If someone has a beneficial interest of a constructive trust under what circumstances is this an overriding interest?
If they are an actual occupation, and said, occupation, would be obvious my reasonable inspection of the property. The overriding interest would be overridden if the purchase money was paid to 2 trustees.
When is recision of a contract for fraudulent misrepresentation barred?
If an innocent party had bought the goods in good faith
What type of resolution is needed for a company to enter into a contract?
Board resolution
What type of shareholder resolution is needed to approve a substantial property transaction?
If a director is connected to another company and owns at least 20% of the voting shares, this is considered a substantial property transaction. In such circumstances in order to approve the the transaction ab ordinary shareholder resolution will be required.
What is an innominate term?
One that can be either a condition or warranty, depending on the facts
If a declaration of trust does not provide any specific provision regarding payment for trustees, in what circumstances can a trustee be paid?
Professional trustees may receive a reasonable remuneration from the trust, provided there is more than one trustee, and they all agree in writing
With regards to assets that form the subject matter of a gift under a will, when is the will said to speak from?
The world is said to speak from the date of death. The basic rule is the assets, which form the subject matter of gift, are determined, according to those in existence of the date of death.
Will a specific legacy under a will fail if the testator no longer owns that property at death.
If the testator uses the word ‘my’ to refer to the gift, it is possible that the court could interpret this to mean the gift that was in existence when the testator wrote the will. Specific legacy will therefore fail, if the testate are no longer owns this property at the date of death. The gift is said to be adeemed. However, if the asset concerned is generic in that it is capable of increase or decrease between the date of the will and the date of death, for example, my jewellery will be taking to mean the jewellery owned into the date of death.
If a claimant was seeking damages for distress and inconvenience in relation to a holiday, can he claim damages for himself, and other members of his family, even if he was the one that entered into the contract?
When a contract with the object of leisure and enjoyment is made by one party on behalf of the group the party to the contract can claim on the group’s behalf. This principle was established in Jackson v horizon holidays, 1975
Can a police officer claim breach of the peace for a joke made by the defendant
No, the joke should have no weight attached to it. In any event the results of the searches and interviews should have outweighed the woman’s comments.
If an old tenant enters into an AGA, will it cease to have a effect upon the subsequent assignment at the lease by the new tenant
Yes
Are previous tenants who have entered into a lease before 1996 liable for breaches of covenant, even if they have not entered into an AGA?
In relation to leases granted prior to 1996, a tenant who assigned the lease remains liable to the landlord of the covenants in that lease, regardless of any assignment. Tenants of leases entered into after this year are not liable once the lease has been assigned, unless they have entered into an AGA.
What notices need to be served on former tenants, who have entered into AGAs, or have entered into a lease before 1996, to ensure they are liable?
A section 17 notice needs to be served on the previous tenant for payment of fixed sums. These tenants need to be notified of the breach within six months of the sum falling due or the landlord must commence an action against the former tenant within that time.
What condition must be satisfied for the court to order pre-action disclosure against the prospective defendant?
One of the conditions for pre-action disclosure under CPR 31.16 is that the documents sought would come within the scope of standard disclosure.
When may a third-party be accountable for accessory liability in relation to a breach of trust?
A third party may be liable as an accessory if he assisted the breach and was dishonest
When can a tenant apply for relief from forfeiture?
The court has discretion to grant withhold relief, which is generally exercised in favour of the tenant if the tenant acts quickly, pays any arrears, remedies any breaches of covenant and pays the landlord costs.
What is a qualified covenant and fully qualified covenant?
A qualified covenant allows the tenant to alter the use of the premises for a permitted use to some other use with the landlords prior consent, usually required to be given in writing.
A fully qualified covenant ensures that the leaseholder has the legal right to undertake planned works, and those works cannot be unreasonably with held by their freeholder
What is a qualified covenant under the landlord and tenant act 1927
Covenants not to assign or underline it without the landlords consent often described as qualified covenants. In such cases, there is an implied term that consent cannot be unreasonably withheld. Landlords can however, still require payment of a reasonable sum in respect of any legal or other expenses incurred.
The LTA turns the qualified covenant into a fully qualified covenant.
A FULLY QUALIFIED COVENANT REQUIRES THE LANDLORD NOT TO UNREASONABLY WITH HELD ITS CONSENT. This may be an express term of the lease or maybe implied by the landlord and tenant act.
If a trustee is self-dealing can the beneficiaries set aside the transaction?
Yes, so long as the beneficiaries set aside the transaction within a reasonable timeframe
Can a defendant in the magistrates appeal his conviction and sentence?
If a defendant has pleaded not guilty, he may appeal against his conviction to the crown court as of right, and he may also appeal against sentence. He may appeal on a point of either fact or law.
Does the civil partner, who is not the registered proprietor and is refusing to move out of the house, have any right to remain in the house that is binding on the purchaser?
in order to be binding on the purchaser, the entitlement of the civil partner who is not the registered proprietor to remain in occupation under the Family Law Act 1996 would need to be registered as a notice on the charges register before the purchaser was registered.
When can the Claimant make an application for an interim payment?
the claimant need to serve the claim form and wait for the period for the defendant to file an acknowledgement of service to expire.
What is an interim payment application?
An interim payment is a payment made by a defendant on account of a claimant’s monetary claim before the court has made a final determination on the amount of that claim. Defendants often make interim payments for tactical reasons where liability is not in dispute, for example to reduce their liability to pay interest.
If there is a safety guard around a sharp section of a machine, but someone can move the safeguard, is this a breach of duty?
the duty to provide a safe system of work is relevant and the client should not have been able to move the safety guard and continue working on the machine (the usual safeguard is that such machines should automatically switch off if a safety guard is moved).
How can a defendant can discharge her evidential burden for the defence of alibi?
Whilst a defendant is not obliged to place any evidence before the court to show that she is innocent of the offence with which she has been charged, as she is raising a specific alibi defence, and wishes the jury to consider that defence, she must place some evidence of that defence before the court if she wishes the court to consider that defence when deciding the verdict. This is an evidential burden. It is relatively simple for her to satisfy this burden, all she needs to do is give details of her defence in the witness box.
What is the actus reus of ABH?
the actus reus of assault occasioning actual bodily (s.47 of the Offences Against the Person Act 1861) is that an assault is committed (here, a physical assault) and that harm is caused which is more than ‘transient or trifling’, R v Savage; R v Parmenter [1991] 1 AC 699. ‘Significant bruising’ would satisfy this.
When did a legal easement become a registerable disposition?
expressly granted legal easement or profit and under section 27(2)(d) LRA 2002 it is a registrable disposition.
When is a legal easement or profit an overriding interest?
legal easements and profits created by implication or prescription after 12 October 2003 are overriding interests. Such easements/profits do not require a deed in order to be legal
How is an easement created by implication?
In some cases, an easement may be created by implication. An easement will only be implied if:
- It is necessary to so imply it;
- The parties had a common intention at the time of the sale of the land that there would be an easement;
- By the operation of s.62 of the Law of Property Act 1925;
Where the land was previously in common ownership and:
the common owner exercised over one part of the plot a right which could have been an easement if the plots were in separate ownership;
the exercise of the right was continuous and apparent; and
the exercise of the right is necessary for the reasonable enjoyment of the dominant land. (This is known as the rule in Wheeldon v Burrows (1879) 12 Ch D 31)
How is an easement created by prescription?
In its simplest terms prescription is about acquiring a right through long use or enjoyment. To bore you with some law, prescriptive easements can be acquired through common law, by “lost modern grant” or under the Prescription Act 1832. What we really need to know is that to acquire a prescriptive easement there needs to have been 20 years of continuous use “as of right”. The 20 years use must be “continuous” in that there cannot be unexplained periods of non-use. The use must be “as of right” which means that it must be “without force”, “without secrecy” and “without permission”
What happens if testator does not sign/acknowledge his signature in the presence of two witnesses.
The will is therefore invalid. As a result, the estate would pass under the intestacy rules,
Is insurance a factor in the reasonableness test in UCTA?
he limitation clause will be subject to the Unfair Contract Terms Act (UCTA) and will be effective if a court judges the clause to be reasonable. The reasonableness test is set out in s 11 and depends not only on the parties’ knowledge (actual or constructive) at the time the contract was entered into (and whether in the light of that knowledge the clause was a fair and reasonable one to be included) but also on other factors such as those set out in s 11(4), Schedule 2 of UCTA and in case-law. The availability of insurance is a factor recognised by the courts when determining reasonableness.
Does a WP letter need to be disclosed in standard disclosure?
Nprivilege attaches to the letter as it is correspondence between the parties and any privilege would have been waived when the letter was sent, so it should be listed in Part 1. The list of documents will not form part of the trial bundle and the judge will not be aware of the offer.
If a variation is made under duress, is the whole contract voidable or just the variation?
Just the variation
What is the two parts of the test for a duty of care to be owed for negligent statements.
Has the defendant assumed responsibility and was it reasonable for the claimant to rely on the defendant for advice.
When two co-owners buy a property will they sign the transfer?
The seller always needs to sign the transfer, but the buyer only needs to sign in certain situations. The relevant reasons why the buyers need to sign on this occasion is that they will make a declaration of trust (as they will be co-owners) . Another reason is if they need to give an indemnity.
What is an extrinsic aid?
An extrinsic aid is something found outside the Act. The judge can use the extrinsic aid to help them understand what a word they are interpreting means. A well-known example of a simple extrinsic aid is a dictionary.
What is an internal aid?
an internal aid means that the court is referring to another part of the same Act which is being discussed as part of the court case
When may a bank have constructive of undue influence in relation to a charge over a property of a married couple, in which the charge does not benefit the wife?
The Bank should have been put on inquiry as the relationship between the client and debtor was non-commercial and the loan was not for their joint benefit. The Bank does not appear to have had a private meeting with the client to explain the risks and she did not take independent advice: so the Bank would have constructive notice of the undue influence.
If trying to pass a shareholder resolution by way of written resolution, when do the votes have to be in by?
By the lapse date be in 28 days beginning with the circulation date
Can an account who contracted with a company be liable to a shareholder of the company, who relied on the negligent accounts and lost money as a result?
Yes, provided that the accountants are aware that the shareholder would read the accounts when deciding whether or not to further invest in the company. It would be necessary for the claimant to establish that the accounts knew that the shareholder would be likely to rely on the account without independent enquiry, and it was reasonable to do so.
The loss suffered relates to pure economic loss, and therefore a duty of care for negligent misstatement must cause the loss it the shareholder must prove there was was a Headley burn special relationship responsibility with an assumption of responsibility and reasonable reliance
What is the fourth stage Caparo test?
Test to see if a special relationship and formed and the defendant had assumed responsibility to the claimant:
- Was the advice acted on to the claimant’s detriment;
- Did the defendant know the advice was to be communicated to the claimant;
- Did the defendant know the claimant would rely on the advice without independent inquiry; and
- Did the defendant know for what purpose the advice would be used for.
Is pure psychological harm recoverable from a breach of duty owed from a driver to a pedestrian?
If the psychological harm has been caused as a result of a physical impact, then it is recoverable however, if it is pure psychological harm, then no
In order for a primary victim to be owed duty of care, what criteria needs to be satisfied?
- The risk of physical injury must be foreseeable, however, the psychiatric harm does not need to be.
• Page v Smith (1995) the claimant was in a car crash. Whilst he did not suffer physical injury the shock induced a psychiatric illness - duty of care was owed as the physical injury to claimant was foreseeable (the duty of care included PSH)
In order for pure psychiatric harm to be recoverable for secondary victim what criteria needs to be satisfied?
- Psychiatric harm needs to be foreseeable - i.e a person of normal fortitude could expect to suffer the PSH;
- Close proximity - the relationtionship between the secondary victim and the person involved in the incident needs to be a close one - e.g husband/wife, parent/child. If not one of these then evidence may need to be provided to show close proximity;
- Close proximity in space and time - claimant needs to witness incident or the aftermath; and
- Close proximity of perception - claimant needs to witness the event or aftermath with their own senses.
The difference with this and a primary victim is that with a primary victim, the pure psychological harm does not need to be foreseeable
Above 4 conditions are the Alcock control mechanisms
Can a dad, who witnesses a young child suffer a fit at the hospital, as a result of medical negligence occurring 1 hour before, whilst the dad was out the room, be able to claim as a secondary victim for pure psychiatric harm?
Yes, if the dad suffers a recognisable psychiatric condition that results from a shocking event or a violent assault on the senses, close ties of love and affection to victim, proximate in time and space [he is directly in aftermath], and appreciation of incident with unaided sense
Can an employer delegate duty to provide a safe system of work for its employees
No, it is nondelegable
Can employers be vicariously liable for independent contractors?
No employers can only be held vicariously responsible for their employees
When is an employer vicariously liable for employee?
Worker must be an employee, worker must have committed a tort, worker must have acted in the course of their appointment.
Also, consider causation and remoteness of loss
What was established in the case of Murphy V Brentwood?
The cost of replacing or repairing a defective product is treated in law as pure economic loss caused by acquiring a defective item of property
Can an employee be held to be acting within the course of the appointment, even if they act contrary to express instructions
Yes, if they’re negligent, actions furthered their employees business
What percentage of damages, as found in the case of Froome v butcher, will be deducted from the claimant as a result of contributory negligence for not wearing a seatbelt, if a claimant suffered injuries which would have been less severe
15%
Do you need exclusive possession of land to make a claim in private nuisance?
Yes, need to be a tenant or owner who lives in the house
If a passenger knowingly gets in a car with someone who has been drinking, and subsequently crashes, what defences may be available for the defendant?
Contributory negligence, passengers, who accept a lift from a driver, who they know to be drunk, can expect to have their damages reduced, if they are injured in an accident, caused by the drivers, intoxicated state, even if they were too drunk to appreciate the drivers intoxication.
The defensive, voluntary assumption of risk being raised by the driver, will not work on any motor-vehicle claim where there is compulsory insurance
What criteria must be satisfied for a successful claim for dependency under the fatal accidents act 1976?
There are two criteria. Firstly, the claimant must be both on the statutory list of people who can claim and be financially dependent on the deceased.
Generally a child period of dependency ends when they reach the age of 18. However, this is extended by the child is in or is expected to be in full-time education.
Money, the claimant may inherit from the deceased are disregarded under the fatal accident act .
Under the tort of public nuisance what types of harm can be recovered?
Personal injury and property damage
What is the criteria for proving private nuisance?
Private nuisance is not based upon proving that the defendant has taken reasonable care. private nuisance concerned with whether the consequences of the defendants use of the land is unlawful, causes substantial and unreasonable interference with a claim with the land
Are the actions of a third-party relevant to the defence of contributory negligence?
No, only a claimant can be contributory negligent
What is the test for remoteness of law in tort of negligence?
Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of contract or duty. Accordingly, once factual causation is established, it is necessary to ask whether the law is prepared to attribute the damage to the particular breach, notwithstanding the factual connection.
test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time of the breach of duty. The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case unless the risk is so small that a reasonable person would in the whole circumstances feel justified in neglecting it
What is required for the defensive illegality in the tort of negligence?
Illegality requires a close connection between the claimants wrongdoing and their loss so that the damage arises directly out of the illegal activity.
If a mother has left a child unrestrained near a busy road, and a child causes a car accident, who will be contributory negligent?
The mother cannot be contributory negligence, as only the claimant can be. However, the claimant is a child. Therefore the mother, who is the one that owes the duty of care to the child, can be added as a joint tortfeasor or additional defendant, so as to reduce the amount payable by the defendant to the child. This is in accordance with the civil liability contribution act.
What is the employees liability, defective equipment act? .
Employee can sue the employer instead of manufacturer or supplier of defective equipment
• Must show:
1. Fault on part of third party (manufacturer or supplier); and
2. Causation.
Can an employer be liable to its other employees for negligence of independent contractors?
Yes, the employer has a non-delegable duty to ensure reasonable care is taken.
What are the three elements require before an employer will be held vicariously liable for its employees?
The employee committed a tort during the course of their employment; there was a sufficiently close connection between the employee’s job and the tort they committed to make it fair and just for the employer to be held liable for the employee’s actions.
In a claim for personal injury of a man, if his mum gives up her job to care for the man (due to the medical condition suffered as a result of the PI) is the mother’s loss of earnings recoverable?
Damages are payable where a relative gives up work to provide care. In Housecroft v Burnett [1986] 1 All ER 332 the court held that the starting point was the loss of earnings suffered by the carer. However, the costs cannot exceed the commercial rate for providing the services.
What are damages for loss of earning capacity?
Loss of earning capacity would apply if the claimant was currently still working but would suffer a disadvantage on the job market in the future.
If a PI claimant decides to get private health care instead of NHS care, does this amount to a failure to mitigate their loss?
s2(4) of the Law Reform (Personal Injuries) Act 1948 states that a claimant cannot be found to have failed to mitigate their loss by paying for private treatment rather than obtaining free treatment under the National Health Service.
Does running and failing to notice a large hole (that the claimant subsequently trips in) amount to contributory negligence?
Yes - the claimant was careless for their own safety by running for the lift etc and not paying full attention to the floor. This carelessness contributed to the injury that they suffered.
Can you exclude liability under OLA 1957?
Occupiers can extend, restrict, exclude or modify their duty to visitors in so far as they are free to do so. If the occupier is a business, the ability to exclude liability is subject to the Unfair Contract Terms Act 1977. If it relates to trader/consumer, subject to fairness test. Can exclude liability for PI or death.
When is a warning notice adequate for OLA 1957?
Under the 1957 Act, a warning will not discharge the occupier’s duty of care unless it is adequate, ie it enables the guest to be reasonably safe and warns them of the specific danger.
What is the common law position on exclusion notices?
You have to take reasonable steps to draw it to the attention of the claimant.
Under the OLA 1957, do you have to adequately warn visitors of obvious dangers in order to discharge your duty of care?
No - not if they are obvious risks.
What is the difference between OLA 1957 & 1984
The 1957 is in relation to a duty of care to lawful visitors, and damage to property as well as PI is recoverable. 1984 act is in relation to unlawful visitors and only PI is recoverable. Can’t exclude liability for 1984 act.
Are occupiers liable for acts of third party contractors under OLA 1957?
Firstly, if it was reasonable to entrust the work to an independent contractor in the first place. Secondly, where the occupier took reasonable steps to ensure the independent contractor was competent. Thirdly, where the occupier took reasonable steps to check the work of an independent contractors.
When has an employer breached its duty to provide competent staff?
If it either knew that the team leader was not properly supervising the male employee, or that it ought to have known (as per Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348).
What is a better mechanism for the your client, selling a property, who has been informed the buyer will not be ready to complete on time: 1. Serve a notice to complete immediately. If the buyer does not comply with the notice then forfeit the deposit, re-sell the shop and claim damages, or 2. Claim compensation for delay under the SCPCs and then sue the buyer for breach of contract to recover any additional losses.
If the client is keen to get funds quickly, then option 1 is better as it forfeits the deposit, however, if the property marker is bad then option 2 may be better.
If a trustee mixes trust money with is own money in his bank, what can the equitable tracing rules do?
Re Hallett creates a presumption of a trustee spending his own money first, and applies where there are sufficient funds left over in a bank account to satisfy a claim by a beneficiary. If this does not work, Re Oatway says it might be said that an investment in successful investments would be deemed to be an investment made out of the trust property
If a trustee steals money and gives it to his partner who asks no questions, is the partner an innocent volunteer?
he partner is unlikely to be an innocent volunteer; his failure to ask questions about where the money came from despite his surprise at the amount, may make it unconscionable for him to retain the receipt (BCCI v Akindele). In any event, the beneficiaries would have a proprietary claim against him, even if he was an innocent volunteer.
Stolen trust money give to an innocent volunteer, can the beneficiaries assert a proprietary claim over what the innocent volunteer bought with the trust money?
A beneficiary of may trace trust money into mixed funds held by an innocent volunteer but cannot trace into the physical property of the volunteer on which the trust money was spent on alterations - re Diplock
Tracing rules for taken trust property
Owner may be seeking to recover their original property from the defendant
Owner may be seeking to recover their original property PLUS any profit which may have been realised from the defendants use of the property
Owner may seek to establish a proprietary right in some other property which the defendant has acquired by using the original property (when not able to require the original property
When is rescission for misrepresentation likely to be barred
It is likely to be barred for undue delay and if restitution would be impossible.
If rescission is barried for misrepresentation, what remedy may a claimant be awarded instead
Assuming that the misrepresentation was made negligently (e.g if the seller of a business grossly exaggerated net profits), the client would be awarded damages for loss of net profit calculated on a tortious basis.
What is the position with regards advancement of share capital to a contingent beneficiary who is over 18?
If he trust was created before 1 October 2014: the trustees can make a capital advancement under s32 Trustee Act 1925 because the son has an interest in capital and the proposed use is for his benefit. As the trust was created before 1 October 2014, they can advance up to half of the amount of the son’s potential share of the trust. This is discretionary. Consent is only needed from a beneficiary if they have a prior interest i.e a life tenant.
After 1 October 2014: The beneficiary can get the whole share pursuant to the Inheritance and Trustees Powers Act 2014
Is a trust interest in a property (i.e if someone invested money in the house) overriding?
This trust interest may be overriding if she is also in actual occupation of the house and the conditions of paragraph 2 of Schedule 3 of the Land Registration Act 2002 are satisfied. Overriding interests bind even though there is no mention of them on the registered title.
Finally, whilst a beneficiary can register a restriction on the Proprietorship Register, this does not protect the trust interest, instead, it alerts a potential buyer of the need to overreach the trust interest.
What are the overriding interests in schedule 3 to the Land Registration Act 2002?
Schedule 3 relates to interest which override registered dispositions:
- Leasehold estate (legal) in land not exceeding seven years unless it is a registerable disposition;
- Interests of people in actual occupation (unless he had actual/implied knowledge, or failed to enquire when he should have done);
- A legal easement or profit a prendre, except for an easement, or a profit a prendre which is not registered (except if known due to actual/implied knowledge or should have made enquiries);
- Local land charge;
- Interests in coal or mine; and
- A right in respect of the repair of a church chancel (not after 12 October 2013)
Can someone who has had their rights breached under the ECHR proceed with their claim before the ECtHR
Yes if they have exhausted their domestic remedies and apply within time - i.e if they have brought a case within the UK which has been rejected and has been refused permission to appeal, so they have exhausted their domestic remedies. They can then started proceedings within the four month time limit for bringing an individual claim before the ECtHR.
If during a trial, you find a case that adversely effects your claim must you bring it to the attention of the trial judge?
They should draw the new legal authority to the attention of the Court because they have a duty to inform the Court of relevant cases which are likely to have a material effect on the outcome of proceedings.
Can a court , in the interests of justice, anticipate future changes to legislation when coming to their decision?
No, because a judge’s role is to apply the rule of law.
How long under the CRA do you have to reject goods that do not conform to the contract. What remedies are available after this.
Section 19 CRA applies a pecking order of remedies where the goods do not conform to the contract. The short-term right to reject non-perishable goods and claim a full refund is lost after 30 days from installation (section 22 CRA). However, the man would still have a right to request replacement and if not, then a final right to reject and claim a partial refund.
When looking at the epitome of title, what land charges searches does the solicitor have to undertake?
The solicitor must search all the pre-root owners of whom they are aware, and any personal reps (if they aren’t sure of the year then up to 1926). It is not necessary to search against a lender only estate owners (unless the lender is in possession but check the facts to see if this is suggested).
What happens to a will when someone divorces?
Under s18A Wills Act 1837, the will is treated as if the ex-spouse died on the date the divorce was finalised.
What best reflects the position in relation to the payment of dividends by the company (MA - not amended)
Once a final dividend has been declared, it must be paid to the shareholders.
Does the chair get a casting vote at a general meeting?
No - only board meetings.
Who can call a poll vote at a general meeting?
a poll vote can be requested by two shareholders (MA44(2)), a single shareholder needs 10% of the voting shares (MA44(2)).
What is a priority period in property law?
The priority period afforded by the OS1 search gives a fixed time within which a buyer will take a property free from any subsequent entries which may be placed on the register after the date of the search but before the buyer is registered as proprietor, provided that the buyer submits his application for registration within the priority period.. If the application to register is not received by the Land Registry before 12 noon on the last day of the priority period, priority is lost to any prior applications.
On which register on the title will a legal easement sit?
The easement was expressly created by deed after October 2003 and is, therefore, a registrable disposition. As the easement benefits the property, it would appear in the property register
Does the high court have to take account of judgments in the HCtHR
domestic courts ‘must take into account’ judgments of the ECtHR but are not bound to follow them.
Can children be beneficiaries under the intestacy rules?
Yes - the legacy will be contingent until 18
Can accepting a gift be an act of theft?
A gift could be appropriation where the grantee had acted dishonestly. Furthermore, the Court held that an act does not require to be unlawful under the general law to constitute an “appropriation.”
Who cannot vote in ratifying a directors breach/
The votes of the breaching director or the votes of any connected person will be disregarded if their votes resulted in the resolution passing. The director’s mother is a connected person under
