FLK1 Flashcards
when may promissory estoppel be brought
used as a defence when:
- promise was reasonable
- party detrimentally relied on it
innocent misrepresentation
false statement of material fact by D, who was unaware at the time that the statement was untrue
what is the effect of duress on a contract
renders it voidable
when must a state liability claim be issued under retained EU law
within 2 years of IP completion date
what 4 things need special resolution
- altering articles
- disapplying pre-emption rights
- reduction in capital / buyback from capital
- changing company name
IP completion date
31st December 2020
how to demand a poll vote
own 10% of shares
can employers delegate duty of care?
no
how do costs work with part 36 offers where the claimant wins less than offered?
interest is not incurred up to the expiry period. D will pay costs up to then. C must pay any costs after including interest.
what duty arises when making an application without notice
full and frank disclosure
what is excluded from loss of earnings calculations
- ill health pension
- insurance payments
- charitable payments
JR requirements
- standing
- victim (if HR claim)
- within 3 months
- without undue delay
what is the mischief rule
where the court looks at the aims of the legislation in remedying a problem
what is the purposive rule
where there is a broader social, economic or political factor which has influenced the judges
what is the golden rule
where the literal rule would lead to absurdity or inconsistency with the purpose of the statute
when is the high court not bound by past decisions
- if 2 previous decisions conflict
- if a previous decision conflicts with the supreme court
- if a past decision was given before new info (per incuriam)
is the success fee recoverable fro man opponent?
no
what conditions can police impose on processions
any that are proportionate to avoid serious public disorder
where does roll-over relief on incorporation apply
where a business is transferred as a going concern with all of its assets
when can a PI claim be issues in the high court?
when C expects to recover £50,000 or more
when does a company change of address take effect
in the date when registered by Registrar, but the previous one remains valid for service for 14 days
what is the general rule in sale of goods contracts
caveat emptor
when is opinion evidence inadmissible
when it discusses who is to blame
when is a mistake insufficient to affect validity of contract
when is it mistake as to an attribute rather than identity
what is the effect of a costs management order?
the court will only depart from budgeted costs on the standard basis if there is good reason to do so
what are the requirements for costs on the standard basis
they must be both reasonable and proportionate
what are the consequences for failure to respond to proposed ADR
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.
when a director has an interest in a transaction, can they vote in a board meeting approving it?
no, they cannot count in the quorum or vote.
which way is doubt resolved on the indemnity basis
in favour of the receiving party
when should witness statements be exchanged on fast track
10 weeks from the date of allocation
can a director vote to ratify their own breach?
no
what are the options for statements of value in the high court
the claimant expects to recover:
over £50,000 (PI claim)
over £100,000 (all other claims)
what are the options for statement of value in the county court
whether they expect to recover:
∘ not more than £10,000; or
∘ more than £10,000 but not more than £25,000; or
∘ more than £25,000; or
* they cannot say how much they expect to recover.
is a director’s failure to declare interest in a transaction an offence?
yes
can terms be implied into a partnership by general conduct?
yes
can an agreement in mediation be automatically enforced?
no because it is not automatically binding, although you may sue for breach of contract.
is mediation always the best first option?
not where a court-ordered remedy is required, such as an injunction
what happens where the defendant fails to file a costs budget with a directions questionnaire?
D will be treated as having filed a budget comprising only court fees, unless court orders otherwise
when should a client be directed to the LeO?
when a complaint cannot be concluded to the client’s satisfaction through the firm’s complaint system
can the LeO order compensation where a complaint is unjustified?
yes, if it was not dealt with promptly or the process breached some other rule
what is the required wording for a statement of truth?
1.i believe that the facts stated in this [name document being verified] are true
2.i understand that proceedings for contempt of court may be brought against
3. anyone who makes, or causes to be made,
4. a false statement in a document verified by a statement of truth
5. without honest belief in its truth
which documents may be diclosed in PArt 2 of the list?
only documents which satisfy the test of legal professional privilege
are witness statements subject to litigation privilege?
yes, regardless of how helpful they are. privilege is waived at the next stage on those statements on which the party chooses to rely
what is a tomlin order?
a document which stays the claim on agreed terms, allowing certain terms put in the schedule or a separate document that is normally held by the parties’ solicitors in order to avoid publication
which terms must appear in a tomlin order?
- recording the fact there is an agreement
- stay of proceedings
- liberty to apply for enforcement without new proceedings
- payment of costs / detailed assessment
- signed by the parties’ solicitors
when must a service contract be approved by shareholders?
when it is for a guaranteed term of over 2 years.
which documents are contained in part 3 of disclosure?
those documents which the party is aware exists but no longer has control over
is minimisation of loss a defence to wrongful trading?
yes
what must parties always do when proceedings are allocated on the multi track?
complete and file a pre-trial checklist
how does a party dispute jurisdiction of a claim?
file an acknowledgment of service then make an application within 14 days disputing jurisdiction
do hours worked have any impact on the share of income profits in a partnership
no, but previous conduct may
how should the financial summary box be completed on the claim form?
with an estimate of what the client genuinely expects to recover
how are costs decided in the small claims track?
they are fixed based on the CPR
does expert evidence preclude fast-track allocation?
no, so long as it is limited to one expert par party and a maximum of two fields.
when should an application for an injuction be made without notice
when urgency is required or there is some reason not to alert the other party
what is qualified one way costs shifting?
where in any PI claim, a successful defendant will not usually recover their own costs unless:
- the claimant was fundamentally dishonest
- the claim is struck out for no reasonable grounds, abuse of process or conduct to obstruct just disposal
- where the Part 36 regime applies
how should a statement of truth signed by a solicitor by completed?
- it should read “the claimant believes that the facts stated in this [relevant document] are true”
- solicitor must sign in their own name
what does the overriding objective require of the court?
that they deal with cases justly and at proportionate cost. they must actively manage cases.
what are the minimum execution formalities for a contract to be binding on a company?
to be signed by the company by a person acting under its authority, express or implied
when may a debtor pursue a shareholder for unpaid share value?
only when the company goes insolvent
what is the purpose of the case management conference?
- review step parties have taken to prepare
- check compliance with any directions already made
- give directions for future conduct
when can the defence of consent/ volenti not be relied upon?
when the claim is in by a passenger to a driver
when do financial means not preclude breach?
when the risk of accident is high and the seriousness of potential harm is high
when do rights granted by an EU directive become retained EU law?
when those rights have been recognised by a UK or EU court or tribunal before IP completion day
how are costs assessed on the indemnity basis
they must be reasonably incurred and reasonable in amount, but there is no need for proportionality. any doubts are resolved in favour of the receiving party
which prerogative power do the courts not view as justiciable?
the power to make treaties
when does terminal carry-back relief apply?
when a company incurs losses in its final 12 months of trading
when do you not need to be a victim to bring an HR claim?
when the victim is dead and you are a close relative
what obligations are imposed when there is a death at the hands of the State?
implied obligation to investigate and those responsible for the investigation must be independent from those implicated.
when does a partner have to account to the firm for personally received profits?
when the profits were received from a business opportunity that was originally offered to the firm without the firms knowledge or consent
what are the implications of a personal bankruptcy order?
- cannot obtain credit of £500 or more without disclosure
- cannot be involved in management, promotion or formation of a company without court permission
what steps should a claimant take before issuing a claim?
write to the customer with concise details of the claim and disclose key documents.
do rescuers consent to risk of injury?
no, not if they were acting to rescue persons or property endangered by D’s negligence under a compelling legal, social or moral duty. their conduct must be reasonable and a natural and probable consequence in all circumstances
what are the rules for revocation
must be communicated to the offeree and may be communicated through a reliable third party
when can a former partner be held liable for a newly incurred debt
if they are still held out as a partner and have not complied with the notice requirements in s36
when should a witness be served with a witness summons
when they are essential to the case or have indicated reluctance to attend
what is the rule of law
the principle of being equal before the law
when is the state liable for failure to implement an EU directive
when the implementation deadline is before exit day and a cause of action accrued before IP completion date
how may administration be triggered
- can be commenced by court order following application and a hearing
- or by the company, directors, holder of charge of unsecured creditor filing certain documents at court.
can unforeseen illness frustrate a contract?
yes
can parliament alter prerogative powers?
yes, by statute
what is the salisbury convention
it states that the house of lords will not oppose the second or third reading of legislation which was promised in the elected party’s manifesto
what is the doctrine of habeus corpus
it states that no one can be detained without a lawful reason
what are the requirements for a duty of care to trespassers?
- be aware or have reasonable grounds to believe the danger exists
- know or have reasonable grounds to believe the trespasser is in or may come into the vicinity of danger
- be reasonably expected to offer the trespasser some protection against the risk
if the prosecution wish to appeal a magistrates acquittal, where will they appeal to and on what grounds?
to the high court on points of law, by way of case stated
who may appoint new directors?
the board or shareholders by ordinary resolution
what is required for vicarious liability?
- tort committed in the course of employment
- sufficiently close connection between the job and the tort
- to make it fair and just for the employer to be held liable for the employees actions
can you serve by email?
only where the receiving party has expressly confirmed it
what makes a substantial property transaction?
- transaction between company and person connected to company (interest over 20%)
- involving a non-cash asset
- of substatial value (£100,000+ or over 10% of net assets)
how long does a part 36 offer stay open for?
until the offeror either withdraws it by written notice or terms are changed by written notice
where would article 8 rights be given priority over article 10?
where there is a reasonable expectation of privacy and the expression does not contribute to a debate of general interest
when does rollover relief on replacement of business assets apply?
when there is a disposal of a qualifying asset and then an acquisition of another qualifying asset within 1 year before and three years after the sale.
who can ratify a breach of duty by a director?
shareholders only
what must be included in notice for a resolution?
- general nature of the business
- statement of the right to appoint a proxy
- must be given to shareholders and directors
when can an offer made to the world at large be withdrawn
when reasonable steps have been taken to withdraw, even if the claimant was unaware
when must a part 36 offer be paid
within 14 days of acceptance unless agreed otherwise in writing
what is exclusive cognisance?
the power for parliament to determine its own rules and procedures
what is a part 20 claim
when a counterclaim is made or an additional party is brought into the proceedings
how must very large (profits over 20 mil) companies pay their tax?
in 4 instalments, the first of which is due 2 months and 13 days after the start of the accounting period
how much notice must be given for general meetings
14 clear days - plus 48 hours if served by email or post
when can a breach of an innominate term justify termination of a contract
when it is sufficiently serious
who may claim bereavement damages?
surviving spouse or, where deceased was an unmarried minor, parents
where is a crown court decision appealed to
court of appeal criminal division, and client must seek leave to appeal
when is a document subject to litigation privilege?
when its sole or dominant reason purpose was for use in anticipated litigation
