everything Flashcards
1
Q
what is net income
A
total income minus tax reliefs (interest on qualifying loans and pension contributions)
2
Q
what are the conditions to qualify for Business Asset Disposal Relief?
A
5% shareholding;
employee/director;
ownership for 2 years or more;
not used up lifetime allowance of £1mil
3
Q
how much dividend income is available and who does it apply to
A
£1,000 (to everyone)
4
Q
what is the difference between gross sums and net sums?
A
gross = total before tax
net = amount left after tax has been deducted
5
Q
when is investors’ relief (IR) available?
A
unlisted trading co.
min 3 years;
reduces CGT from 20% to 10% for gains arising on disposals of qualifying shares (lifetime limit of £10m);
shares are qualifying if: fully paid ordinary shares for cash consideration; co is a trading co.; at time of issue, no shares were listed on a stock exchange; SH is NOT an employee of co.
6
Q
what is non-savings income?
A
total income minus savings and dividend income
7
Q
what is personal allowance and who gets it?
A
£12,570 for everyone who earns less than £100,000
100,000 to £125,140: reduced by £1 for every £2 of net income above £100,000
above £125,140 = NO personal allowance
8
Q
what is taxable income?
A
total income minus tax reliefs and personal allowance
9
Q
what is personal savings allowance and who benefits?
A
taxable income up to £37,700: 0% on first £1,000
taxable income £37,700-£125,140: 0% on first £500
taxable income above £125,140: no PSA
10
Q
what are the tax bands for non-savings income?
A
20-40-45
11
Q
what are the tax bands for savings income?
A
20-40-45
12
Q
what are the tax bands for dividends income?
A
8.75-33.75-39.35
13
Q
how do you figure out which tax band an individual falls into?
A
depends on their NET INCOME (so have to deduct tax reliefs (interest on loans + pension contributions) first
14
Q
how do you work out an individual’s income tax?
A
- calculate total income
- deduct tax reliefs (net income)
- deduct personal allowance (taxable income)
- split into non-savings, savings and dividend income
- calculate whether PSA is available
- apply relevant tax rates
- add everything together (total tax liability)
15
Q
what filing requirements are associated with a director leaving?
A
co. must update co.’s register of directors + give notice to Companies House by form TM01
16
Q
what is the statutory order of priority on winding up?
A
- liquidator’s fees and expenses
- fixed charge creditors
- liquidator’s other remuneration
- preferential creditors (employees)
- prescribed part fund for unsecured creditors
- creditors with floating charges
- unsecured/trade creditors
- interest owed to unsecured creditors
- SHs
17
Q
how much do employees get as preferential creditors?
A
remuneration due in the 4 months prior to winding up subject to max £800 plus accrued holiday pay (+the rest from the prescribed part fund if anything left)
18
Q
how is the prescribed part fund created?
A
amount of company’s net property will be ring-fenced at 50% for the first £10,000 and 20% thereafter up to maximum fund of £800,000 for floating charges. will be shared rateably among the unsecured creditors
19
Q
what is the standing test in s 7 HRA?
A
applicant must be a direct victim of the unlawful act and directly affected.
victim test comes from art 34 ECHR. indirect V’s can bring cases in EXCEPTIONAL CIRCUMSTANCES
20
Q
what is Art 8 ECHR, what type is it and when can it be interfered with?
A
right to private and family life, home and correspondence;
qualified right;
can be interfered with if it’s in accordance with the law pursuant to a legitimate aim and it’s necessary in a democratic society
21
Q
what is the def of substantial in substantial property transactions?
A
- more than 100k
- if between 5-100k, then: substantial IF worth more than 10% of the company’s NET ASSET VALUE
22
Q
what are the 3 mechanisms for calculating the expectation interest and which one is the most common?
A
cost of cure (most common);
diminution in value;
loss of amenity
23
Q
what is the cost of cure?
A
cost of substitute or remedial work to put C in the same position they would’ve been in had the contract been performed correctly.
24
Q
what is the aim of reliance interest?
A
to put C in the position they would’ve been in had they never contracted (backwards looking)
25
what are the requirements for adding/substituting parties post-limitation?
1- the limitation period was current when the proceedings were actually started; and
2- the substitution/addition is necessary
26
what are the requirements for valid consideration?
must not be past;
must move from the promisee;
need not be adequate;
must be sufficient
27
what is private nuisance used for?
for land-based personal interference (physical damage or sensible personal discomfort)
28
when can public nuisance be argued?
when you're an individual suffering loss (material discomfort) over and above the rest of the class
29
what is Rylands v Fletcher user for?
an isolated escape from D's land of anything likely to do mischief if it escapes
(ie damage from barrel of paint/acid)
30
what are the 4 elements of private nuisance?
indirect interference, recognised damage, continuous act, unlawful interference
31
what type of damage is recoverable in public nuisance?
property damage and consequential economic loss; personal injury and pure economic loss;
also inconvenience but this has to be material
32
how is an ordinary partnership taxed?
each partner pays tax as an individual on their income/gains
33
what type of decisions have shorter time limits than the usual JR time limit?
planning permission and public procurement decisions
34
what is a prohibitory injunction?
a court order restraining a party from breaching a negative term
35
what is the contra proferentem rule and where does it apply?
used regarding exemption clauses, and general rule is that if there is any doubt as to the meaning of the exemption clause, the ambiguity will be resolved against the party (proferens) seeking to rely on it
36
what is a non-conforming good and what remedies are available?
-short-term right to reject;
-right to repair or replacement;
-right to a price reduction or the final right to reject
37
when might a negligent misstatement apply?
where there is a relationship of sufficient proximity between two parties, the court might find that one party owes a duty of care to the other to take reasonable care that statements made are accurate
38
how can a contract be discharged by agreement?
by subsequent binding contract between the parties
39
is performance of an existing obligation owed to a third party good consideration?
yes
ie cat sitter ex, don't have to return money
40
what rule of consideration is closely related to the doctrine of privity of contract?
consideration must move from the promisee
41
what is the legal test for necessity?
D must prove they:
a) were acting in an emergency; and
b) were not at fault in causing the emergency.
42
what losses are recoverable in private nuisance?
physical damage, sensible personal discomfort and consequential economic loss
43
what is the test to determine a breach re the professional standard? (following Bolam)
the test is the standard of the ordinary reasonable man exercising and professing to have that special skill
44
what is the neighbour principle? (Caparo)
you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure someone who is so closely and directly affected by your act that you ought reasonably to have them in mind when considering how to act?
45
what were the key concepts/tests discussed in Hedley Byrne when establishing a duty of care for pure economic loss caused by a negligent statement?
a) reasonable reliance by C on D's advice;
b) voluntary assumption of responsibility by D for advice;
c) special relationship of trust and confidence between D and C
46
when is an occupier liable for naturally occurring nuisances?
when they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance
47
what does a strict liability regime under the consumer protection act mean?
that parties could be found liable without it being necessary to show fault on their part
48
what is the qualifying fear trigger in loss of self control? (def)
that D's loss of control was attributable to a fear of serious violence
49
when do acts of third parties break the chain of causation?
(novus actus interveniens)
when they're highly unforeseeable
50
when can medical treatment break the chain of causation as an act of a third party?
when it is so gross and egregious as to be unforeseeable
51
when do acts of the claimant break the chain of causation?
when they are highly unreasonable
52
intoxication: if it's a specific intent crime and D voluntarily drunk, what direction will the jury be given?
to consider if capable, did D form the intention (MR) of the offence in their intoxicated state
53
intoxication: if it's a non-dangerous substance and voluntary intoxication, what direction will the jury be given?
to decide whether D has formed the MR in his intoxicated state
54
what is the approach if your intoxication is involuntary?
'a drunken intent is still an intent'
check to see if D has formed MR in his intoxicated state
55
intoxication: what is the approach with voluntary intoxication and a basic intent crime? (where recklessness is available)
would D have formed the mens rea if sober?
(D will be deemed reckless if they would have foreseen the risk of harm if sober for ex)
56
what defence is not capable of being relied upon if you are voluntarily intoxicated? (Dowds)
self defence due to drunken mistake
57
if you're drinking alcohol but are mistaken as to its strength, is your intoxication voluntary or involuntary?
voluntary
58
what type of crime is voluntary intoxication NOT a defence to?
basic intent
59
what is the mens rea of theft
dishonestly
intention of permanently depriving
60
what are the 3 types of impossibility?
impossible in fact
impossibility through inadequacy
non-existent crimes (only one that acts as a defence)
61
where is assault defined?
common law
62
in order to be charged with an attempted offence, how far does D's action need to go?
it needs to be more than merely preparatory
63
result crimes relate to what aspect of the criminal liability equation?
actus reus
64
when can the defence of self-defence be used and what are its elements?
protection of yourself, another and/or property
1) D must honestly believe the use of force was necessary; and
2) the level of force used must've been objectively reasonable in the circumstances as D believed them to be
65
to be potentially classed as a householder case, which of the following must D rely on?
protecting themselves or another
66
what is the AR of robbery?
AR of theft
force
on any PERSON
use of threat of force immediately before or at the time of stealing
67
on what rare occasion does the standard of proof in criminal law shift to the defence and what is the standard then?
defence of diminished responsibility
standard = balance of probabilities
68
which type of accessorial liability requires a causal link between D's act and what P does?
procuring
69
which requirement of the s 5(2)(b) 'acts to protect property' lawful excuse defence is objective?
criminal damage - lawful excuse
the damage caused by D must be capable of protecting the property (objective was to whether it was capable)
the others are:
1) D must act to protect property
2) D must believe the property was in immediate need of protection (subjective()
3) D must believe that the means of protection adopted are reasonable (subjective)
70
what is the MR for s 20?
intention or recklessness as to causing some harm
71
what is the general rule in terms of impossibility acting as a defence for attempted offences?
the general rule is that impossibility is not a defence
(with the exception of non-existent crimes ofc!)
72
when does the first review after arrest need to happen (if you are being detained). and when is the second one?
6h after arrival, and every following review is at 9h intervals after that
73
what is the max period of detention without charge?
96h
24h initial, + 12h if extended by superintendent + another 36+24h ONLY if MC agrees!
74
what is a custody record?
sets out everything that happens to the detainee during their stay
75
who can delay a detainee's right to contact their solicitor?
a superintendent
76
what is the first type of ID procedure the police will do?
what's the second?
1) VIPER
2) parade
77
how many people need to be in a parade?
D + 8 other people
78
what are the 3 adverse inferences?
s 34; if a fact is later relied on at trial and it would have been reasonable to have mentioned it in the interview
s 36: failure to account for a mark, object or substance
s 37; failure to account for presence at the scene
79
when can a solicitor be excluded from an interview at a police station?
if they are preventing or obstructing qs being put to your client
80
when must police conduct an identification procedure?
when the suspect denies the offence AND the eye-witness has expressed an ability to identify the suspect
81
when does a criminal D automatically pass the merits test?
(funding)
if they are being charged with an indictable only offence or an either-way offence is sent to CC
82
when is bail decided?
at the first hearing
83
what's the difference between sending and committing to CC?
if not GP - you SEND to CC
if GP, you commit to CC
84
who does the right of bail not apply to?
(a) those appealing their conviction/sentence; or
(b) to Ds being committed for sentence from MC to CC
85
what is the difference between breaching a bail condition and failing to surrender into custody?
failing to surrender is a criminal offence, whereas there is no offence of breaching a bail condition
86
what are the general rules on further applications for bail?
a D who is having a trial in MC can have 2 attempts at getting bail at MC, and 1 attempt on appeal to CC which will be listed no later than 1 BD after receipt of the notice
87
what are the custody time limits with regards to bail?
56 days for trials in MC (summary or either-way); and
182 days for trials in CC (indictable only or either-way) [less any days spent in custody prior to case being sent to CC]
88
how can previous convictions be used by the prosecution in a bail app?
as evidence of substantiating grounds on which D should be remanded to custody, but not grounds on their own
89
what are the 2 stages of a PTPH?
plea and either 'sentence' or 'trial preparation'
90
what is an arraignment?
when you enter a plea at plea stage
91
what are the main methods to exclude evidence or stop a criminal case?
-application for dismissal
-submission of no case to answer
-application under s 78 PACE
-application to exclude confession s 76 PACE
-app to exclude evidence under common law s 82(3) PACE
-abuse of process app
92
what is an application for dismissal in criminal law?
for cases sent to CC. a pre-trial app made after evidence is served and before arraignment
93
when is a submission of no case to answer submitted in CLP?
only available during trial at the close of the prosecution case (Galbraith test)
94
what is an abuse of process app?
CLP
app to stay the indictment where either:
1) D cannot have a fair trial; or
2) continuing the prosecution offends the court's sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute
95
when can evidence be excluded under s 78 PACE?
when it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
(only to exclude prosecution evidence)
96
when is a voir dire used?
when there is a dispute on the facts between the defence and prosecution
97
what is the def of a confession?
any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise
98
what are the 2 ways under s 76 PACE to challenge a confession?
oppression (2)(a); or
anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof (2)(b)
--------------
+ court can also order a rebuttal from prosecution that evidence was in fact nOT obtained how it's set out in (a) and (b) (beyond reasonable doubt)
99
what is the standard for almost everything the prosecution needs to prove vs what the defence needs to prove?
prosecution: beyond reasonable doubt
defence: on the balance of probabilities
100
what are the time limits for the defence statement and Notice of Intention to Call Defence Witnesses?
CC: within 28 days of the date when prosecution complies with its duty of initial disclosure
MC: within 14 days of date when prosecution complies with its duty of initial disclosure
also, a defence statement is compulsory in CC!
101
how long after indicating plea and a matter being sent to CC will the PTPH be held
within 28 days
D will be arraigned and a trial date set
102
when is a statement hearsay?
when it is made out of court; and
the person that made it intended another person to believe it; and
it is adduced as evidence of the matter stated
103
when can hearsay still be admitted?
when the witness is unavailable;
it's a business doc;
it is in the interests of justice to admit it;
it falls under a common law exception;
it is a previous inconsistent or consistent statement of a witness
104
what are the different stages of entering a guilty plea and how much can your sentence be reduced at each one?
guilty plea at first opportunity = max 1/3
guilty plea at PTPH = max 1/4
guilty plea on first day of trial = max 1/10
105
what happens if you are on a conditional discharge and commit a further offence?
you will be sentenced for the new offence and possibly resentenced for the original offence
106
when are Newton hearings held?
when D pleads guilty but says the facts are different + the judge doesn't find the basis of plea absurd/equivocal + D's basis would materially affect sentence
107
how do suspended sentences work?
if you commit any offence during the operational period (the period your custodial sentence is suspended for) then some (or all) of your custodial sentence can be activated
-----------------------------------------------------
resentencing does not happen here, rather the suspended sentence is just activated
108
in what circumstances do you appeal an MC decision to CC?
if you're arguing an error of fact or fact and law
109
what are the possible appeal routes to HC?
case stated (error of law/magistrates acted in excess of jurisdiction);
app for JR (unfairness, bias or procedural irregularity)
110
if you appeal a decision from CC to CA, what sentencing powers does CA have?
same as CC< can't be more excessive
111
how does requesting leave to appeal from the CA work?
first you apply to the single judge, and if they refuse, then can renew app for leave to the full court of 2 or 3 judges where app will be reconsidered by oral hearing
112
if you are sentenced in MC, what are the prosecution's options for appealing?
can't appeal against conviction or sentence
can only appeal to Divisional Court by way of case stated if there is an error of law/excess of jurisdiction
113
when sentenced in MC< what it D's timeline for appealing?
notice of appeal must be lodged within 15 BDs of sentence(!)
114
what happens at your appeal hearing when you appeal a conviction to CC? (from MC)
there will be a rehearing of her case before a judge and 2 lay magistrates which will proceed in the same way as her original trial
neither defence nor prosecution are restricted to the same evidence as the original trial
evidence will be called and witnesses cross examined
CC then makes an finding of G or NG based on the re-hearing of the evidence
115
what's the max sentence a youth court can impose?
2 years DTO (detention and training order)
116
what are youth rehabilitation orders?
community orders for youths
117
what type of interest does the B of a trust have?
an equitable proprietary interest
118
what are the 3 requirements for all express trusts?
+ what else is needed for a trust of land? what happens if that requirement is not met?
1) the 3 certainties
2) a beneficiary or beneficiaries (or permitted purpose)
3) compliance with applicable perpetuity rules
+ for land: compliance with LPA 1925, s 53(1)(b) (= declaration of trust in writing + signed or in will)
if this isn't met, the trust is unenforceable
119
what are the 3 certainties for a creation of trust?
1) certainty of intention
2) certainty of subject matter
3) certainty of objects
120
how is certainty of intention (trusts) ascertained?
by S's words and conduct, objectively viewed
121
when can Saunders v Vautier be used to collapse the trust?
when all Bs' interests are vested and each has a distinct interest in the trust property (that can be severed without impacting the others)
122
what happens to a remainderman's interest if he dies before the life interest holder?
what if your interest hadn't vested yet?
his vested right to the capital forms part of his estate and on the life interest holder's death, T must transfer the capital to his PRs
if interest was contingent at time of death, then no right to capital
123
what type of trusts need to be in writing?
testamentary and land trusts
124
what is the crucial difference between a discretionary trust and a power of appointment?
the power does not have to be exercised in power of appointment!
and can give it to someone other than T as well
125
what happens to a testamentary 'trust' clause if there's no certainty of intention?
it turns into a gift
126
what happens to a lifetime transfer of legal title if there's no certainty of intention?
presumption of resulting trust for original owner applies
(which can be rebutted)
127
what is the difference between vested and contingent interests when you die?
if you die, a vested interest passes to your estate, whereas a contingent interest doesn't
128
what creates a relation of bailor and bailee?
having possession of goods but not title to them
129
if you're authorised to sell goods for someone, what does this make you under trusts law?
principal and agent
130
what is required to have certainty of objects?
and what may hinder it regardless
it must be possible to compile a complete list of the members of the class
but still watch out for administrative unworkability
131
Paul v Constance: what happens if a joint bank account is purported and treated as for the benefit of both, but under only one's name?
the legal title holder is assumed to hold it on trust for themselves and the other person equally
132
what are the 3 requirements for a charitable purpose trust?
1) charitable purpose
2) public benefit
3) wholly and exclusively charitable
133
what is the main aim of constructive trusts?
to correct some sort of unfairness or unconscionability
134
when it comes to figuring out ownership in a family home situation, what is the process for joint legal owners?
1) presumed equitable joint tenants
2) rebut presumption
3) quantify interests
135
when it comes to figuring out ownership in a family home situation, what is the process for sole legal owners?
1) presumed sole beneficial owner
2) establish common intention
3) establish detrimental reliance
4) quantify interests
136
when it comes to figuring out ownership in a family home situation, what is the process for proprietary estoppel?
need to have evidence of:
1) assurance; and
2) detrimental reliance; and
3) unconscionable to resile; (and
4) remedy)
137
what is the common law standard of care for administration? general + investments
and the statutory standard of care?
general: prudent man of business managing his own affairs
investments: prudent man of business administering a fund for persons for whom he is morally bound to provide
statutory: such care and skill as is reasonable in the circumstances
138
what types of claim are available for secondary liability in trusts?
accessory liability (dishonest assistance) and recipient liability (knowing receipt)
139
what is fair-dealing?
trustee directly transacting with B to buy their beneficial interest under the trust
140
what type of info is in it the property register>
describes the property and any rights benefitting! it (covenants or easements)
141
what's in the proprietorship register?
gives the registered proprietor's (owner's) name and address, the class of title and entries affecting ownership (restrictions, indemnity covenants)
142
what's in the charges register>
lists rights burdening! the property (eg mortgage, COVENANTS, easements and leases)
143
what type of surveys are there for pre-property transactions and when are they appropriate?
1) basic valuation: min. requirement if mortgage being taken. identifies any major defects that would concern a lender
2) homebuyer's report: much more detailed. suitable for most properties in reasonable condition
3) full structural survey: especially suitable where property listed/loads of renovations/extensive renovations planned (most expensive option)
144
what happens at pre-exchange?
seller's solicitor provides title and draft contract (heads of terms) and replies to standard enquiries CPSEs.
buyer's solicitor then investigates title, undertakes searches, reviews CPSEs and raises additional enquiries if necessary
145
what are the main tasks for a buyer's solicitor after completion?
pay SDLT, register the buyer as the owner of the property and the lender as a chargee, at the Land Registry
146
what do you do when you find a positive covenant in the charges register?
check if there's an indemnity covenant in the proprietorship register - if no indemnity, can ignore covenant.
however if there iS an indemnity covenant, assume it binds the property.
in that case, consider whether the covenant has been breached - if it has, seller should provide indemnity covenant at their expense or consider other insurance. if can't get insurance, approach person with benefit to seek their consent;. if disagree, apply to Lands Tribunal as last resort
147
when do restrictive covenants on unregistered land bind the buyer?
what about +ve covenants?
if they've been registered as D2 land charges
+ve covenants can't be registered so only bind buyer if no broken chain of indemnity covenants
148
what must the root of title cover?
good title to property:
- adequately describes the land being conveyed
- more than 15 years old
- casts no doubt on seller's title
- deals with both legal and beneficial title to property
149
how is an index map search useful in terms of unregistered land?
it tells you whether the land is actually unregistered!
150
what is the Central Land Charge search form K15 and how is it used?
where property unregistered, carried out against full names of the seller and all previous owners referred to in epitome of title.
start with date the oldest owner bought it, of it unknown, start from 1926 until they sold it to next person, and so on for everyone's period of ownership
151
if you obtain a mortgage and a fixed charge under which you agree not to deal with the property without the bank's consent, how would this be entered in the registry?
restriction on dealing in proprietorship register and mortgage as charge in charges register
152
what is CON29 and what does it include?
standard enquiries of local authority:
- planning consents, refusals and completion notices
- building regulations
- roads and public rights of way
- environmental notices (including contaminated land notices)
153
when is a K16 search carried out?
against the seller if the transaction is not at full market value
or against buyer taking a mortgage
154
when would you carry out an index map search (SIM)?
where the property is:
- unregistered;
- comprises more than one title (registered or unregistered); or
- registered title refers to mineral rights
155
what CPSE enquiries are relevant to commercial property?
CPSE1: standard replies
CPSE2: property subject to commercial tenancies
CPSE3: grant of a new lease
156
what are the 2 standard forms for residential property search that are ALWAYS used?
property info form TA6 and fittings and content form TA10
TA6: boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility meters
TA10: items that are included or not in the sale, such as curtains, light fittings, carpets etc
157
what are the 2 main parts of a local search? what are the rest?
LLC1 and CON29
drainage and water enquiries CON29DW
desktop environmental search
chancel repair liability
158
what is planning permission for?
'development'
aka demolition, but excludes works which only affect interior!
159
what are building regulation approvals for?
external or internal works
(to make sure building works comply with structural standards, safety, environmental protection etc)
160
what is the time period for enforcement of planning permission?
BEFORE 25 APRIL 2024
4 years for building works or if changing use to single dwelling house
10 years for any other changes of use or breach of a planning permission condition
AFTER 25 APRIL 2024
10 years for all planning breaches
161
where do you look to to investigate risk of flooding?
desktop environmental search
162
what is the primary reason for carrying out a highways search?
to ensure the boundary of the property abuts a public highway
163
what is limited title guarantee?
seller can only guarantee they're not aware of any rights having been granted over the property during the period of their ownership, but won't make any covenant about rights before that
164
what happens to risk in the property at the point of exchange?
ie if building catches on fire
it passes to the buyer
(so they should have insurance cover!!)
165
how are newly constructed commercial properties taxed?
at 20% standard rated (so automatically in SCPC)
166
what is the correct form of purchase deed for a registered freehold property?
+ when does the buyer sign it?
TR1
buyer signs if they're giving an indemnity covenant
167
when assigning a registered old lease. what documents are needed for execution?
TR1 (assignment deed) and licence to assign
168
when is a s 146 notice not required for forfeiture?
when it's being pursued for the non-payment of rent
(landlord can either use peaceable re-entry or court action (if lease has forfeiture clause))
169
what do you do if you want to call a meeting asap to get around the 15 day memorandum period?
short notice only saves one day, so serve WR instead and attach memorandum to it! no 15-day display requirement
170
what do you do if you can't meet the deadline to serve a budget? (as a first step)
try to agree an extension with the other party
171
what are the 4 exceptions to the entire obligations rule?
(under discharge of contract by performance)
acceptance of partial performance
substantial performance
divisible obligations
wrongful prevention of performance
172
if you voluntarily accept partial performance, what type of payment is the defaulting party entitled to?
qunatum meruit = what is deserved
it's a remedy
173
for a voidable preference claim, what does the liquidator need to prove?
that the company was insolvent at the time of the transaction or became so as a result of it, + a desire to prefer the creditor
(desire to prefer is presumed if associate, and timeframe is 6 months for unconnected and 2 years for associate)
174
how far do safe systems of work extend?
(employer's liability)
not only to providing safe equipment for the work, but also doing everything in their power to make sure employees are aware of the risks and insisting that they wear/use the safety equipment
175
what are the requirements for agency under privity of contract?
1. should be clear agent is contracting on principal's behalf
2. agent should be authorised to act as agent in relation to contract concerned
3. consideration must move form the principal (ie who pays)
176
when will a collateral contract be found?
when there's been consideration between the promisor and third party
ie Shanklin Pier v Detel - here assumed due to consideration and communication between the parties (warranty given)
177
what is the difference between direct and indirect bias?
direct bias: if you have a direct personal financial interest
indirect bias: test: would the closeness of connection give rise on an objective basis to a real possibility of bias?
ie would fair-minded and informed observer conclude that there was a real possibility of bias? ie closeness of connection, preconceived mindset etc
178
what can courts do with a statutory instrument?
quash it if it's incompatible with the parent Act
179
what percentage is required to satisfy the but for test and what is the next step if that can't be done?
more than 50%
if doesn't work, look to: material contribution (but only if it's an industrial disease case!!!)
180
when can you use the material increase test in tort?
when dealing with industrial disease cases (only!)
181
what are the guidelines for deciding whether interim injunction should be granted?
where it is just and convenient - Cyanamid
step 1: is there a serious q to be tried?
step 2: would damages be an adequate remedy for a party injured by the court's grant of, or failure to grant, an injunction?
step 3: where does the balance of convenience lie?
182
what sort of damage do you need to suffer under the Consumer Protection Act to be able to bring a claim?
- death,
- personal injury,
- loss of/damage to property over £275, - consequential(!) economic loss
183
what is the common law standard of manufacturer liability
can claim if manufacturer fell below the standard of a reasonably competent manufacturer
184
when is a misrepresentation by conduct not actionable?
when C does not see or hear the attempted misrepresentation as they are not induced by it!
185
what is the def of a misrepresentation?
5 points to be satisfied
unambiguous
false
statement of fact
addressed to C
induces C to enter into the contract
186
how can capital losses of a company be set off?
ONLY against FUTURE capital gains!
(generally)
187
what's the difference between special and general damages?
special: quantifiable financial losses that have been incurred now/before/at trial
general: all other damages ie your compensation, loss of future earnings etc (unquantifiable!)
188
if you're a SH in a small co. and you're removed as a SH, what type of action can you bring?
unfair prejudice under legitimate expectation cause the co. might be a quasi-partnership!
( case law)
189
what is the 3 stage test for vicarious liability?
1) a tort has been committed
2) by an employee of the co. and
3) during the course of employment
190
what is the effect of a CVA if approved?
binds all unsecured creditors
+ secured creditors if they consent
(no automatic moratorium)
191
what is the correct legal test for determining whether a doctor is in breach of duty for failing to advise on risks?
the material risk test: medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments,
material risk = one which a reasonable person in the patient's position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to
192
what is the reasonable reliance test?
1) C relied on D's advice
2) reasonable for C to rely on D's advice
3) D knew/ought to know C was relying on advice
193
what do you need to establish for mental incapacity?
(contract)
1) that C did not understand what they were doing; and
2) that the other party knew(!) that to be the case
194
what is a non-natural use def in rylands v fletcher?
a use which poses an increased risk over and above that of a normal use
195
what % is needed for a SR?
AT LEAST 75%
196
what order can the court make in terms of a new tenancy following a s 26 order where the landlord and tenant disagree as to the terms?
such terms as the court thinks fit and not exceeding a tenancy of 15 years
197
what are the 3 types of duress?
duress to the person
duress to property
economic duress
198
how do you establish duress to the person?
1) actual or threatened violence
2) amounts to one factor influencing the decision to enter into the contract
199
how do you establish duress to property?
1) seizure or damage to owner's property
2) but for the duress, the agreement would not have been entered into
200
how do you establish economic duress?
1) lack of practical choice
2) caused by illegitimate pressure
3) but for the duress, the agreement would not have been entered into
201
what questions do you ask when trying to establish illegitimate pressure?
has there been a threatened breach of contract?
pressure applied in goof or bad faith?
did V protest?
did V affirm?
202
when is an innominate term treated as a condition for the purposes of damages?
when the consequence of the breach is to deprive the party ob substantially the whole benefit from the contract
203
what are the different damages for breaching a warranty vs a condition?
warranty => damages only
condition => right of election: affirm & damages OR terminate & damages
204
how can a term be incorporated?
through signature, notice or course of dealing
205
under UCTA, it is only possible to limit liability for property damage in so far as....
...the exemption clause satisfies the requirement of reasonableness
206
how does the obligation to provide a service with reasonable care and skill operate under the Consumer Rights Act?
excluding liability will not work
limiting liability depends on the amount of loss caused = will not be binding to the extent that it would prevent the consumer from recovering the price paid
207
what 2 things can you not exclude liability for under UCTA and CRA?
death or personal injury caused by negligence
208
what must you show in order to prove inducement for misrepresentation purposes?
that the statement was either MATERIAL or C relied upon it personally
material = would've influenced a reasonable person = objective
209
what's the difference between mistake and misrepresentation when it comes to selling assets to third parties?
if misrepresentation and fraudster has sold it to 3rd party, then legal title has already passed and you can't get it back, but if you prove mistake, then the contract was void from the beginning and legal title didn't pass and you can get it back!
210
what does a finding of mistake mean for the validity of the contract?
that it was never concluded - it's void from the start!
211
when is a statement of intention actionable?
when you have no such intention (deliberately fraudulent)
212
what do you need to file at court when issuing an interim order application?
application notice form N244
supporting evidence
draft order
fee
213
when does the interim application notice need to be served on the other party?
asap and not less than 3 clear days before hearing
214
when is the lates you can file and exchange statements of cost before an interim hearing?
not less than 24h before!
215
when does service of an application for summary judgment/interim payment need to take place?
and further evidence?
at least 14 days before the hearing
respondent further evidence: at least 7 days before hearing
applicant: at least 3 days before hearing
216
when are jurats used?
when you're signing off an affidavit before someone authorised to administer affidavits, for a search order
217
what must C obtain at trial in order for D's part 36 offer to have no effect?
a sum MORE advantageous than what D was offering
----------------------
(so if you get same amount as D offered, then you have to pay D's costs + interest from date of expiry)
218
what is a calderbank offer?
without prejudice save as to costs
219
what happens if you accept a part 36 offer?
you get the sum + you get your costs covered by the other party
220
what is the default form that a DR appeal will take?
review
(rather than rehearing)
221
what are the 6 stages of passing a bill in Wales?
1: decision on whether senedd agrees with the general principles of the bill
2: amending stage
3: second amending stage
4: decision on whether to pass the bill
5: awaiting royal assent
6: royal assent
222
how can MS's refer qs to the CJEU?
in the form of qs about EU law, on which CJEU will then make a preliminary ruling. the ruling will then be returned to the MS, where they can apply it
223
when a statute is repealed, what happens to the subordinate legislation made under it?
it is also considered repealed
(exception: the transition period for Brexit, where EU law still applied despite the act having been repealed)
224
225
what are constitutional conventions?
effectively political rules
(not legal at all! so not enforceable legally)
226
old acts of parliament are subject to implied repeal, but can you impliedly repeal a constitutional statute?
no
227
which division of the high court would a negligence claim be brought in?
the King's bench division
228
what happens at the second reading of a bill?
a general political debate
229
where is judicial review carried out?
by the Administrative court
(in KBD of HC of Justice)
230
what is the amount of the statutory legacy that the spouse receives under intestacy rules?
£322,000
231
what is the MR for ABH?
intention or recklessness to commit assault or battery
232
what happens if the root of title for an unregistered piece of land refers to a deed of covenant that can't be traced?
the buyer will only be able to obtain a qualified title at the land registry and their future use of the land may be affected if the covenant is later forced
233
how do you remove trustees?
if all Bs have S v V rights, then they can do so in writing if all Bs agree
if trust only has 2 trustees, then a new one needs to be appointed before old one removed
234
what are the formalities of a legal easement?
deed + registration at Land Registry + for a certain term
235
how do you appeal a decision from CC?
with appeal notice and grounds of appeal
236
who can authorise a suspect's right to have someone informed of their arrest?
min. an Inspector
237
what happens if a bill has been abated?
both the profit costs and VAT need to be reduced, so there will be 4 entries
238
what is self-dealing and is it valid?
self-dealing involves a trustee purchasing assets from the trust or selling assets to the trust
it is voidable as a result (if unauthorised) and can be set aside if Bs wish
239
when do you hold money as an agent vs as a stakeholder?
agent if it is your own client's money, stakeholder if other side's
240
what are the elements of unlawful act manslaughter?
1) intentional/voluntary act
2) unlawful act
3) dangerous act
4) caused the death of the V
241
what is the test for dangerous harm?
(unlawful act manslaughter)
the act is dangerous if: sober and reasonable people could foresee the risk of SOME physical harm
(can take into account anything D knows ie that it was an old person)
242
what type of offence is robbery and aggravated criminal damage?
indictable only
243
implied legal easements are what type of interests?
overriding interest
244
what is retained EU law?
EU legislation that continues to have effect under the Withdrawal Agreement
245
246
what test is used in householder cases to determine whether D has responded in self-defence?
whether the force was grossly disproportionate in the circumstances as D believed them to be, and if not,
whether it was reasonable
247
what is the 5 elements of gross negligence manslaughter?
1) duty of care owed to V by D
2) breach of duty
3) obvious and serious risk that D's conduct COULD cause death
4) evidence breach DID cause death
5) D fell so far below the reasonable person standard that he's grossly negligent
248
what is the required MR for attempted aggravated arson?
intention to damage property by fire and intention/recklessness as to whether human lives were endangered by the damage by fire
249
when can you still be found guilty of murder without the intent to kill/cause GBH?
by oblique intent: if death or serious injury was a virtual certainty and D was aware of that
'oblique intent is not intention but evidence of it'
250
for aggravated burglary, when must D have the offending weapon on them?
at the time of committing the burglary
(be it a s 9(1)(a) burglary (at the point of entry) or s 9(1)(b) burglary (on commission or attempted commission of theft or grievous bodily harm))
251
what's the difference between a s 62 implied easement and Wheeldon v Burrows (implied grant)?
s 62 upgrades an informal permission into a legal easement upon conveyance if used continuously,
whereas Wheeldon v Burrows applies to easements that would otherwise be grants (so it's an implied grant basically), were used as a quasi-easement by the seller before, is necessary for the reasonable enjoyment of C and it's in use by the common owner at date of transfer
252
what does correct registration of an equitable land charge constitute?
and what happens if you fail to register?
(unregistered land)
actual notice! => binding on 3rd parties
if you fail to register it will not be binding on a purchaser (regardless of knowledge!)
253
what is the purpose of doing a full search of the Land Charges register against all the names in the title deeds of unregistered land?
to find out if there are any equitable interests
254
who has legislative competence and what does it mean?
NI, Scotland and Wales - means they can pass primary legislation (measures) in specified areas without reference to Westminster
255
what are the monarch's options once a Bill is presented to them?
1) grant Royal Assent
2) withhold Royal Assent
3) reserve Royal Assent and defer a decision until later time
256
where must permission be obtained from to start a claim of JR?
from the HC
257
when public law rights are at stake, what is the only way in which Cs may proceed?
by way of JR
(exclusivity rule: prevents public interest matters from becoming subject to civil proceedings)
258
what are the filing requirements for partnerships?
none
259
what is the process for issuing shares?
OR to allot (unless ltd co. ordinary shares)
SR to amend articles
SR to disapply pre-emption rights
SR for new class of rights
BR to allot shares
260
what are non-participating preference shares?
it means that you get a dividend as a preferred creditor at first, but then the remaining amount of the dividend is only shared between the rest of the creditors, not you again)
(ie contrast with preference shareholders who get first dibs AND a slice of the leftover)
261
what does pre-emption right mean?
right of first refusal
262
what's the difference between default judgment and summary judgment?
default is procedural (ie D doesn't respond) but summary judgment is if the case is weak on the facts so court will consider the merits
263
who is the target co. in financial assistance?
the co. whose shares are being acquired
264
how much notice needs to be given to directors when calling a co. board meeting?
reasonable notice (Trinidad)
265
what filing requirements follow an issue of shares? (at the CA)
SR within 15 days and SH01 form within 1 month
266
what is an IVA?
(individual voluntary arrangement)
arrangement where debtor makes a proposal for a compromise of their liabilities with their creditors
267
what is the effect of an interim order obtained during an individual voluntary arrangement?
no bankruptcy petition or other proceedings can be commenced against the debtor/their assets without the leave of the court
268
how do you calculate rollover relief for new base cost?
1) price of new item - chargeable gain = new base cost
2) price of new item - (chargeable gain - difference between old and new item) = new base cost
269
when must a person register for VAT?
if at any month end taxable supplies made by them during the past year exceed £85,000.
270
how do you calculate the VAT on a VAT-inclusive figure?
divide the sum by 6
(To calculate the VAT element of a figure, the VAT fraction can be used. The current VAT fraction, based on the standard rate of 20%, is 1/6)
271
when is a term implied into a contract under business efficacy?
when it goes to the root of the contract and is so fundamental it can't be excluded.
272
what are the characteristics of a secondary victim?
1) not within the immediate zone of danger but a witness
2) psychiatric injury arises from witnessing the death/pain/danger of primary V
3) sudden and unexpected shock
4) close ties of love and affection
5) C was present at event or witnessed immediate aftermath
6) injury was reasonably foreseeable
273
what is a basic intent offence?
one that can be committed recklessly (no intention needed)
274
who decides whether enough 'force' has been used to constitute robbery?
the jury
275
which offences do ss 1, 8, 9 and 10 of the Theft Act relate to?
theft
robbery
burglary
aggravated burglary
276
what is the test for determining whether a SH has been unfairly prejudiced?
the reasonable bystander test
277
what are examples of unfairly prejudicial conduct?
Negligent or inept management of a company
Disagreements as to company policy
Bad faith
Breaches of the articles of association
Claimant's conduct (no requirement for C to have clean hands)
Excessive remuneration
Legitimate expectation (in terms of certain small private companies, shareholders may have a legitimate expectation that they be involved in the management of the company, and the prevention of such involvement may equate to unfairly prejudicial conduct)
A CVA treating one creditor unfairly compared to another/material irregularity in the procedure of seeking approval for the CVA
278
on whose behalf is a derivative claim brought?
the company's
279
what are the grounds for bringing a derivative claim?
an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of the company.
280
who can a derivative claim be brought against?
director or third party
281
what is the two stage process for succeeding in a derivative claim?
1- court decides if there is a prima facie case
2- detailed consideration of criteria/evidence
=> proceed to trial if all satisfactory
282
what are established membership rights that have been enforced under s 33 (just and equitable winding up)?
the right to a dividend
right to share in surplus capital (on winding up)
right to vote
right to receive notice of GMs and AGMs
283
what is the quickest way to obtain SH approval?
by WR
-----------
cause can attach memorandum to WR and don't need to display it for 15 days
284
what voting threshold is required for a BR passed in writing?
unanimity
285
what are the 4 tests for insolvency?
the cash flow test (inability to pay debts as they fall due)
the balance sheet test (liabilities > assets)
failing to comply with a statutory debt demand of £750
failing to satisfy enforcement of a judgment debt
286
WHAT IS A MORATORIUM?
A PERIOD DURING WHICH CREDITORS CANNOT EXERCISE THEIR USUAL RIGHTS AND REMEDIES:
CREDITOR'S CAN'T ENFORCE THEIR SECURITIES
STAY OF LEGAL PROCEEDINGS + CAN'T BRING NEW ONES
NO WINDING UP PROCEDURES CAN BE COMMENCED
NO SH RES CAN BE PASSED TO WIND UP COMPANY
NO ADMINISTRATION PROCEDURE CAN BE STARTED
287
HOW DO YOU OBTAIN A PRE-INSOLVENCY MORATORIUM?
BY FILING DOCS AT THE COURT THAT:
THE CO IS OR IS LIKELY TO BECOME UNABLE TO PAY ITS DEBTS
A STATEMENT FROM A LICENSED INSOLVENCY PRACTITIONER SAYING THAT A MORATORIUM IS LIKELY TO SAVE THE COMPANY
288
how long does a pre-insolvency moratorium last?
20BDs
can be extended for another 20 by directors
289
what happens if the liquidator of an MVL considers that the company will not be able to pay its debts?
has to change it from MVL to CVL (creditors' voluntary winding up)
290
what is the most common insolvency procedure?
CVL (creditors' voluntary winding up)
290
what are the main docs required for a term loan?
term sheet
loan agreement
security document (debenture)
