FLK 1 Mock 23/10 Flashcards
review wrong questions
Negligence - Causation
factual causation in negligence ?
The two main tests for factual causation in negligence are:
The “But For” Test – Would the harm have occurred “but for” the defendant’s breach of duty? If the harm would not have occurred, the defendant is liable.
Example: Barnett v Chelsea & Kensington Hospital [1969]
The Material Contribution Test – Where multiple causes are involved, the court asks whether the defendant’s breach materially contributed to the harm.
Example: Bonnington v Wardlow [1956]
What is the test for standing in judicial review under English law?
Under s 31(3) Senior Courts Act 1981, claimants in judicial review proceedings must show they have sufficient interest in the matter. Courts consider factors such as the role of the claimant and the ; likely absence of another responsible challenger ( no one else better suited)
(as established in R v Secretary of State for Foreign Affairs, ex p World Development Movement Limited).
claimants do not generally need to be victims. They only need to show they have sufficient interest unless they are relying on Convention rights under the Human Rights Act 1998, where they would need to demonstrate victim status
What are the key grounds for judicial review and what do they mean? IIPFF
Illegality – The public authority acted outside its legal powers (ultra vires) or used its powers for an improper purpose.
When to use: If a decision-maker goes beyond the scope of their lawful powers or applies a policy that contradicts the intended purpose of the statute.
Example: A government body restricts actions in a way that is not aligned with the statutory goal (e.g., Congreve).
Irrationality (Wednesbury Unreasonableness) – The decision is so unreasonable that no reasonable authority could have made it.
When to use: If the decision is extreme, illogical, or defies common sense.
Example: A decision to only allow one recycling plant in an area despite increasing demand (Wednesbury, CCSU).
Procedural Impropriety – The public body failed to follow proper procedures or breached rules of natural justice (such as the right to a fair hearing).
When to use: If there was no fair hearing or the decision-making process lacked transparency.
Example: If an application was rejected without giving the claimant a fair chance to present their case (McInnes v Onslow-Fane).
Fettering of Discretion– The public authority rigidly applies a policy without considering exceptions or individual circumstances.
When to use: If the decision-maker refuses to consider a unique or new argument because they are strictly adhering to a pre-set policy.
Example: Rigidly applying a “one plant per area” rule without considering the needs of the area (British Oxygen).
Failure to Take Account of Relevant Considerations – The decision-maker ignored important factors or took into account irrelevant ones.
When to use: If relevant facts or considerations that should have influenced the decision were ignored.
What factors will courts consider to decide whether a company’s activity amounts to an unlawful interference in a private nuisance case?
The courts will consider:
The character of the neighbourhood – Whether the interference is consistent with the nature of the surrounding area (e.g., rural, residential, industrial).
Frequency and duration of the activity – The regularity and length of time the nuisance persists.
The sensitivity of the claimant’s property– Whether the claimant’s property, such as delicate organic crops, is more sensitive than an average property, which could influence the assessment of interference.
Which prevails in a conflict between a UK Act of Parliament and a provision of assimilated EU law?
The Act of Parliament prevails over assimilated EU law, even if the Act predates the assimilated legislation. This change occurred after the Retained EU Law (Revocation and Reform) Act 2023 (REULA 2023), which terminated the supremacy of EU law in the UK.
What is the difference between public nuisance and private nuisance?
Public Nuisance:
Affects a class of the public (i.e., a group of people or the public in general).
Claimants must show they have suffered special damage beyond what the general public has experienced.
Example: The fumes from the motor repair business affect the entire neighborhood, but the centre and the client with bronchitis suffer more severe harm, so they may have a claim for public nuisance.
Private Nuisance:
Affects the use or enjoyment of land by individuals with a proprietary interest (like homeowners or business owners).
Only those with a proprietary interest can bring a claim. hunter v canary warf
Example: The centre can bring a private nuisance claim because it owns the land where its operations are disrupted by the fumes. The client with bronchitis cannot claim private nuisance as they do not have a proprietary interest.
In cases of human rights law, which court has binding authority over UK courts?
The UK Supreme Court has binding authority over UK courts, including the Employment Tribunal. Decisions from the European Court of Human Rights are persuasive, but not binding.
types of precedent
Binding Precedent: Decisions from higher courts that must be followed by lower courts.
Persuasive Precedent: Decisions that may be considered but are not mandatory to follow.
Ratio Decidendi: The binding legal reasoning of a case.
Obiter Dicta: Persuasive comments that are not binding.
Higher court decisions take precedence over lower court decisions in the UK legal system.
consequences of a Part 36 offer under the Civil Procedure Rules (CPr)
If a claimant fails to obtain a judgment more advantageous than the defendant’s Part 36 offer, the court will generally (unless it considers it unjust to do so,) order that:
The claimant pays the defendant’s costs on the standard basis from the date the relevant period of the offer expired (usually 21 days after the offer is made) until judgment (CPR 36.17(3)).
The claimant responsible to pay defendant costs from end of offer to judgement as consequences - court sets rate.
The defendant is responsible for their own costs up from the offer until the relevant period expires (21 days)
How does the court comply with the overriding objective at a case management conference in a complex breach of contract case involving parties with unequal financial resources?
The court will:
Take into account the complexity of the issues, the amount of damages sought ), and whether expert evidence is required.
Ensure the case is dealt with justly, which includes managing it in a way that is proportionate to the amount of money involved, the importance of the case, the complexity, and the financial position of the parties.
Seek to allocate an appropriate share of court resources, without focusing solely on one party’s financial standing (e.g., the claimant’s large resources
The court must actively manage the case, not simply manage it “as best as possible” (as per CPR rules).
Proportionate cost, not reasonable cost, is the standard when considering case management.
A single joint expert is not mandatory in complex cases involving large sums, and parties may instruct their own experts.
Can a claimant claim both a contractual debt and an equitable account of profit in the same legal action?
Yes, because since the Judicature Acts of 1873, the courts of equity and common law have been combined into one unified court system. This allows a claimant to seek both common law and equitable remedies in the same legal action.
What is contributory negligence, and how does it apply when a passenger fails to wear a seatbelt?
Contributory negligence occurs when the claimant’s own carelessness contributes to their injuries. In this case:
The friend’s failure to wear a seatbelt constitutes contributory negligence.
Based on the medical evidence, the friend’s injuries would have been avoided if they had been wearing a seatbelt.
According to the case of Froom v Butcher [1975], the friend’s compensation will likely be SET and reduced by 25% for not wearing a seatbelt.
Contributory Negligence reduces, but does not eliminate, the compensation the claimant can receive.
The driver remains liable for their negligent driving but can raise the defence of contributory negligence to reduce the damages awarded.
In cases like this, the reduction in compensation is based on how much the claimant’s actions (e.g., not wearing a seatbelt) contributed to the injury.
What is the effect of registering a fixed charge at Companies House after the 21 day period for a debenture creating the charge was executed?
the charge is valid against the company, but void against a liquidator, administrator, or other secured creditors because it was not registered within the required 21-day period.
Explanation: Under the Companies Act 2006, a charge must be registered within 21 days of its creation for it to be valid against insolvency practitioners or other creditors. If registration is late, the charge remains valid between the company and the lender, but it is ineffective against third parties in the event of insolvency.
What are the time limits for a defendant to respond to a claim under the Civil Procedure Rules (CPR)?
Acknowledgment of Service: The defendant has 14 days from the date of service of the claim to file an acknowledgment of service or a full defence.
If the defendant files an acknowledgment of service within 14 days, they have an additional 14 days (making a total of 28 days) from the service of the particulars of claim to file a full defence..
can apply for default judgement the day after- ie they have untill close of buisiness on that day to do it.
EG: The claim form and particulars of claim were deemed served on Tuesday, 11 May. Therefore:
The deadline for the acknowledgment of service is Tuesday, 25 May.
If the acknowledgment of service is filed, the defence must be filed by Tuesday, 8 June (28 days from service).
What are the financial consequences if a claimant obtains a judgment at least as advantageous or less advantage as their Part 36 offer?
Under CPR 36.17, if the claimant obtains a judgment that is at least as advantageous as their Part 36 offer, the court will usually order:
The defendant pays the claimant’s costs on the indemnity basis from the date the relevant period expired.
The defendant pays interest on those costs at a rate not exceeding 10% above base rate.
The defendant pays interest on the sum of damages (excluding interest) at a rate not exceeding 10% above base rate, starting from the date the relevant period expired.
The claimant is entitled to an additional amount, up to £75,000, as compensation (capped if the judgment exceeds £1 million).
Costs on the indemnity basis apply from the date the relevant period expired.
Interest on costs and damages can be awarded at a rate not exceeding 10% above base rate.
The additional amount is capped at £75,000 if the judgment exceeds £1 million.
Where should a consumer issue proceedings if their claim exceeds £100,000?
The claimant has a choice- The claim can be issued in:
The High Court, Queen’s Bench Division, or
The County Court, including the County Court Money Claims Centre.
The Technology and Construction Court is typically reserved for complex construction disputes and is not suitable for straightforward consumer claims.
If the claim is for £100,000 or less, it must be started in the County Court.
Can the directors of a company borrow money to expand the business under the Model Articles?
Yes, the directors have the power to borrow and give security for the company’s debts under the Model Articles. However, the power must be exercised for a proper purpose in accordance with s.171(1)(b) of the Companies Act 2006.
In this case: Borrowing £5 million for the purpose of retaining control (rather than issuing shares) is likely to be considered an improper purpose, as it prioritizes the directors’ personal control over the best interests of the company.
Improper Purpose: Using the borrowing power to retain control rather than acting in the company’s best interests may breach the proper purpose rule under s.171(1)(b) of the Companies Act.
Shareholder Objections: The directors should consider the objections of the shareholders, as their decision may conflict with their duty to promote the success of the company (s.172).
Interests of Creditors: The duty to have regard to creditors’ interests only applies if the company is insolvent or nearing insolvency, which is not the case here.
Against which assets can a charging order be obtained to enforce a judgment?
The claimant can obtain a charging order against the following assets of the defendant:
Business premises: The property from which the defendant operates their business.
Matrimonial home: The defendant’s beneficial interest in the matrimonial home in York, England.
Holiday home: The defendant’s beneficial interest in the holiday home in France (subject to registering the judgment in France and using the French equivalent of a charging order).
British government stock: The claimant can obtain a charging order over the defendant’s securities, such as British government stock.
Charging orders can be obtained against real property (such as business premises and homes) and securities (such as British government stock).
International property: The holiday home in France can also be subject to a charging order, but the judgment must be registered in France.
Matrimonial property: The claimant can enforce against the defendant’s beneficial interest in jointly owned property, such as the matrimonial home.
Can a client appeal a County Court judgment based on a misstatement of the law?
: Yes, an appeal can be made if the judge made an error of law. In this case:
The misstatement of the law of negligence is a ground for appeal because it constitutes an error of law.
Since the case was heard in the County Court (fast track), the appeal would be made to the High Court.
Can the directors of a private limited company issue new shares without the involvement of shareholders?
: No, because statutory pre-emption rights apply to the allotment of shares. Under s.550 of the Companies Act 2006, the directors have authority to allot shares in a private company with one class of share (ordinary shares). However, s.561 provides that pre-emption rights must be offered to existing shareholders first, unless those rights are disapplied by a ** special resolution**
Q: Can a constitutional statute be repealed, and if so, how?
Constitutional statutes cannot be impliedly repealed. they deal with governance structure, fundamental rights, or legal relationships in a country. Constitutional statutes deal with matters of fundamental importance, such as human rights, political processes, or the distribution of power between state institutions.
However, they can be expressly repealed by specific or clear wording in the later statute… or repealed by clear words in a later Act.
What should a claimant do first if the defence and counterclaim filed by the defendant lack clarity?
: The claimant should write to the defendant and request further information under CPR Part 18 to clarify any matters in dispute or obtain additional information. This step should be taken before applying to the court for further clarification.
CPR Part 18 allows a party to request further information to clarify unclear statements in the defence and counterclaim.
