COVER AGAIN Flashcards
TEST for INTERIM PAYMENT
Application made by CLAIMANT
ANY OF:
- D admitted liability
- C successfully obtained judgment with costs to be assessed
- Substantial amount
Must not be awarded more than reasonable portion of likely amount of final judgment.
Cost re damages/debt or other sum (not costs)
Special procedure - at least 14 days - at least 7 days - at least 3 days - 24 hours.
Security for costs test
Made by D against C
Made by C against D re CC
Made by TP against D re Additional Claim
Regarding all circs = JUST to make order
and
one or more of CONDITIONS met
Conditions:
- out of jurisdiction, x bound by Hague convention
- take steps re assets to make enforcement more dififcult
- impecunious company (‘will be unable to pay debts when order made against it, not ‘may’’)
- changed their address since service to evade enforcement
- have not provided address
- C is acting as nominal C and reason to believe it will be unable to pay C’s costs if ordered to do so.
Court still has discretion — factors considered we whether circumstances mean just to make an order -> Sir Lindsay Parkinson & Co v Triplan Ltd [1973] Q.B. 609 (CA)
🔦LINDSAY = Late / Induced / Nasty/ Deals Open/ Sham/ Admission/ Yes!
Late: whether the application for security is made at a late stage of the proceedings 👎.
Induced: whether the claimant’s want of means has been brought about by any conduct by the defendant, such as delay in payment or in doing their part of any work (i.e. D responsible for C’s financial difficulties) 👍;
Nasty: whether the application for security was being used oppressively, e.g. so as to stifle a genuine claim;
Deals open: whether there is a substantial payment into court or an “open offer” of a substantial amount 👎;
Sham: whether the claimant’s claim is bona fide and not a sham;
Admission: whether there is an admission by the defendants in their defence or elsewhere that money is due;
Yes!: whether the claimant has a reasonably good prospect of success;
TEST for Interim Injunction
Either party
Must be granted where JUST and CONVENIENT
American Cyanamic Guidelines on how to exercise discretion?
Step 1: Is there a serious question to be tried? (i.e. claim not frivolous or vexatious)
Step 2: Would damages by adequate remedy for party injured by court’s grant of, or failure to grant an injunction?
- damages for the A (will generally refuse injunction if A could be adequately compensated by damages for any loss caused by refusal to grant an interim injunction – however damages may be re
- damages for the R
Step 3: If appears damages would be inadequate for neither party, where does the balance of convenience lie? – i.e. which carries lesser risk of injustice.
Note: equitable + discretionary
Standard procedure re timeframes, but
- cross-undertaking in damages (voluntarily given in court, cannot force party to give one)
- without notice safeguards (normal w/out notice procedure)
- applications before a claim is issued (only if URGENT or DESIRABLE IN INTERESTS OF JUSTICE)
Pneumonic for FACTORS considered re proportionate costs
SOME VERY CLEVER ADVOCATES WANT VUITTON
Costs will be proportionate if they bear a reasonable relationship to the following specific criteria (CPR 44.3(5)):
The SUMS in issue in proceedings;
The VALUE of any non-monetary relief in issue in the proceedings
COMPLEXITY of the litigation
Any ADDITIONAL WORK generated by conduct of paying party; AND
Any WIDER FACTORS involved in proceedings, such as reputation or public importance.
Any additional work undertaken or expense incurred due to the VULNERABILITY of a party or any witness.
Factors for determining AMOUNT of costs
SIMPLE FACT = ‘You Owe Me Money Mate’
S = skill, effort, knowledge and responsibility involved
I = importance of the matter to all parties
M = money/value of any money or property involved
P = place and circumstances in which work done
L = last approved/agreed budget of receiving party
E = efforts made, if any, before and during the proceedings to resolve the dispute
F = (failure to resolve dispute if no efforts made)
A = Amount of time spent on the case
C = complexity of the matter (or difficulty/novelty of the Qs raised)
T = Tactical (conduct of parties before as well as during proceedings)
Duty under primarily liability of employers to employees?
Duty to take reasonable care to ensure employee’s safety
broken into four parts:
1. Safe and competent employees
2. safe and proper plant and equipment
3. safe place of work/premises with safe access and way out
4. safe systems of work, with adequate supervision and instruction.
Requirements of vicarious (secondary) liability of employer (STRICT)?
- Tort committed by A
- A employee/in a relationship akin to employment with B
- Tort committed in the course of A’s employment/quasi-employment with B {close connection test}
Close connection test:
- nature of the job
- sufficient connection between position and wrongful conduct making it fair and just to impose liability.
TEST for employee relationship/relationship akin to employment?
- RENUMERATION in exchange for personal performance of services + mutuality of obligations (i.e. not being able to send own substitution w employer having no choice over who, not 0 hours contract)
- CONTROL - control over how task done, when and where work completed.
- ALL OTHER CONTRACTUAL FACTORS = AKIN TO EMPLOYMENT RELATIONSHIP - equipment provided by employer, TAX/PAYE/Employee integration into org, parties calling relationship employment, reciving benefits like sick pay and holiday pay.
Share Capital requirement of a public company?
£50k min share capital + 25% fully paid up
definition of LLP
s2(1)(a) LLPA - 2/+ persons associated for carrying on a lawful business with a view to profit can incorporate an LLP
definition of Tradition Partnership -
No formalities
s1(3) and s2) say based on facts – showing sharing profits will be evidence but not conclusive – need at least 2 people.
liability re tort and contract for traditional partnership
tort - joint and several
contract - joint
Form needed to incorporate an LLP
LL IN01 – needs statement of compliance, statement of initial significant control, particulars of members, name (with requirements around this) and appropriate address — given a certificate of incorporation.
No requirement for memorandum or Articles – complete flexibility re management – not required but recommended to have a LLP agreement.
s79 LPA 1925 implied intention covenant
Covenant relating to land shall be deemed to be made by the covenantor on behalf of its successors in title, unless a contrary intention is expressed.
Substantial Shareholding Exemption?
This applies to corporation tax - chargeable gain specifically
If the company held 10% or more of the ordinary shares in the company and now disposing of these, it must have held the shares for 12 consecutive months starting no more than 6 years before the day you sell them.
