FLK1 Flashcards
1
Q
Are ECtHR decisions binding on UK courts under the HRA?
A
No, ECtHR decisions are not binding on UK courts, but Section 2(1) of the HRA requires courts to account for them when interpreting laws or reviewing decisions.
Note that while the ECtHR judgments are not binding on national courts, they are binding on national governments.
2
Q
What happens if an ECtHR decision conflicts with UK domestic precedent?
A
UK courts must follow domestic binding precedent but may give leave to appeal. ECtHR decisions are binding on national governments, which must ensure domestic law aligns with ECtHR rulings if necessary
3
Q
What must you ensure when referring a client to a third party under the SRA Principles?
A
Referrals must be in the client’s best interests, not compromise your independence (Principle 3), and comply with acting with integrity (Principle 5) and in the client’s best interests (Principle 7).
4
Q
What are the key requirements under Part 5 of the SRA Code of Conduct regarding referrals?
A
You must fully inform the client of any financial or other interests in the referral, ensure the client can make an informed decision, and disclose any limitations, such as offering products from a single source.
5
Q
When is VAT charged under the Value Added Tax Act 1994?
A
VAT is charged on the taxable supply of goods and services made in the course of a business (s. 4(1)), where goods or services are supplied for consideration and generate income on a continuing basis.
5
Q
What did Wakefield College v HMRC (2018) clarify about “business” for VAT purposes?
A
There is no checklist or exhaustive definition of “business”; the intention of the supplier and the amount charged are irrelevant. Relevant factors include ongoing income generation and exchange for consideration.
5
Q
What is the liability for damage caused by encroaching trees under nuisance law?
A
The owner is liable for reasonable costs to remedy damage caused by encroaching trees (Davey v Harrow Corporation, Delaware Mansions Ltd). Liability includes damage that their encroachment “materially contributed” to but may be reduced if the damage was exacerbated by defective construction (Loftus-Brigham v Ealing).
6
Q
What are the tests for foreseeability and continuing nuisance for encroaching trees?
A
Foreseeability requires the owner to know or ought to know of the roots and risks (Leakey v National Trust). A nuisance “continues” if the owner fails to act with knowledge of its existence within a reasonable time (Sedleigh-Denfield v O’Callaghan). Liability can arise even if the nuisance predated ownership.
7
Q
What happens if an expert’s report is not disclosed in accordance with Directions?
A
Under Rule 35.13 of the CPR, the report cannot be used at trial, nor can the expert give oral evidence unless the court grants permission. The court’s power to exclude evidence is discretionary.
8
Q
Can the opposing party’s consent allow late reliance on an expert’s report or witness statement?
A
No, only the court can grant relief under Rules 32.10 and 35.13 of the CPR, even if the opposing party consents.
Whilst the court will have regard to the consent of the opposing party for your client to rely on a report that has been adduced out of time, the matter cannot be dealt with by consent as only the court can grant relief pursuant to rules 32.10 / 35.13 of the CPR.
9
Q
What qualifies as a public assembly under the Public Order Act 1986?
A
Under s.16 of the Act, a public assembly must take place in the open air, at least in part. Indoor gatherings are not public assemblies. A public assembly must involve two or more people.
10
Q
Does the purpose of a public assembly affect the power to impose conditions?
A
No, the purpose of the assembly is irrelevant to the power to impose conditions under the Public Order Act 1986.
11
Q
What criminal offence is established under Section 14 of the Legal Services Act 2007?
A
It is a criminal offence for non-entitled persons to undertake advocacy activity as outlined in the Act.
12
Q
What advocacy rights do solicitors have under the SRA Authorisation of Individuals Regulations?
A
Solicitors can conduct their own advocacy in tribunals, Coroners’ Courts, Magistrates’ Courts, County Courts, the Family Court, and European courts without additional qualifications.
13
Q
What additional qualifications do solicitors need to represent clients in higher courts?
A
Solicitors must gain the Higher Courts (Civil Advocacy) or Higher Courts (Criminal Advocacy) Qualification to represent clients in the Crown Court, High Court, Court of Appeal, and Supreme Court.
14
Q
When will the court allow expert opinion evidence?
A
The court will allow expert opinion evidence if it relates to an issue outside the normal experience of the judge, not a jury.
15
Q
A private company limited by shares is proposing to declare a final dividend. The company has adopted the model articles (unamended). What steps are required of the company in order to declare such a dividend?
A
The company must pass an ordinary resolution of its members in order to declare a final dividend (Model Article 30) and in order to do this, the company must produce its annual accounts to evidence it has profits available for this purpose.
15
Q
Does the expert need to be the leading expert for their opinion to be admissible?
A
No, the expert does not need to be the leading expert, just a true expert on the matter. The court will decide if the opinion is correct.
16
Q
Who is prima facie liable under the Consumer Protection Act 1987 for damage caused by a product?
A
The manufacturer, producer, importer, or “own brander” of the product is prima facie liable for any damage caused by the product under sections 2(1) and 2(2) of the Consumer Protection Act 1987.
17
Q
What defines “damage” under section 5(1) of the Consumer Protection Act 1987?
A
“Damage” is defined as death, personal injury, or damage to any property under section 5(1) of the Consumer Protection Act 1987.
18
Q
What must a solicitor do on the termination of a retainer?
A
On the termination of a retainer, a solicitor must deliver all papers and property to which the client is entitled or hold them to the client’s order, subject to any lien, and account for all client funds held.
18
Q
What is the defence available to a manufacturer or supplier under the Consumer Protection Act 1987?
A
Under section 4(1)(d) of the 1987 Act, a defendant can assert that the defect did not exist in the product at the relevant time, but the burden of proof is on the defendant to establish the non-existence of the defect.
18
Q
What is required for a supplier to be liable under the Consumer Protection Act 1987?
A
The claimant must request, within a reasonable period after the damage occurs, that the supplier identify the producer, importer, or “own brander” of the product. If the supplier fails to comply within a reasonable period, they may be liable.
19
Q
Under what circumstances may a solicitor exercise a lien over a client’s papers?
A
A solicitor may exercise a lien over a client’s papers for unpaid costs when the solicitor has delivered a bill or provided sufficient information to calculate the amount owing, as per section 69 of the Solicitors Act 1974.
19
What is required for a solicitor to exercise a lien over a client’s papers for unpaid costs?
A solicitor can exercise a lien over a client’s papers for unpaid costs if the solicitor has delivered a bill or provided sufficient information to calculate the amount owed, as per section 69 of the Solicitors Act 1974.
19
What happens when a lien is in place over a client's property?
The solicitor is entitled to retain the client’s property (e.g., title deeds, papers) until the costs are paid in full, including any interest, paid disbursements, and VAT, from one month after the bill is delivered.
20
How can a client challenge a solicitor's lien?
A client can challenge a solicitor’s lien by showing that the solicitor either did not deliver a proper bill or did not provide sufficient information to calculate the outstanding amount.
21
What jurisdiction does the court have regarding a solicitor’s lien? What powers does the SRA have regarding a solicitor’s lien?
The court has statutory jurisdiction under section 68 of the Solicitors Act 1974 to order a solicitor to deliver up the client’s papers, even if a lien exists.
The SRA has the power to order a solicitor to deliver up the client’s papers if it has intervened in the solicitor’s practice.
22
In which scenario can a solicitor ask the court to grant an equitable lien against the defendant?
A solicitor can request an equitable lien against the defendant (or insurance company) when the solicitor holds nothing of value from his client, and the defendant intends to pay damages directly to the solicitor’s client in litigation, as seen in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21.
23
Under what circumstances will a public authority not be considered to have acted unlawfully under section 6 of the Human Rights Act 1998?
A public authority will not be considered to have acted unlawfully if, as a result of primary legislation, the authority could not have acted differently (section 6(2)(a) of the Human Rights Act 1998).
24
What power does the court have when challenging the provisions of a new Act under the Human Rights Act 1998?
The court can issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 if a new Act is incompatible with Convention rights.
24
What is the effect of a declaration of incompatibility made by the court?
A declaration of incompatibility does not affect the validity, enforcement, or continuing operation of the legislation. The law remains in force until Parliament addresses the incompatibility due to the principle of Parliamentary sovereignty. (R (M) v Secretary of State for Health [2003] EWHC 1094).
25
What does section 6(2)(a) of the Human Rights Act 1998 mandate regarding the actions of public authorities?
Section 6(2)(a) mandates that public authorities will not have acted unlawfully if they could not have acted differently due to one or more provisions of primary legislation.
26
What does Part 6.5 of the SRA Code of Conduct for Solicitors state about acting for a client with an interest adverse to another client?
A solicitor must not act for a client in a matter where the client has an interest adverse to another current or former client for whom the solicitor holds material confidential information, unless:
A. Effective measures have been taken to ensure there is no real risk of disclosure of the confidential information, or
B. Informed written consent has been given by the client whose information is held.
27
Under what conditions can a solicitor act for both parties in a matter where one party holds confidential information that is material to the matter?
The solicitor may act if:
Effective measures ensure there is no real risk of disclosing the confidential information, and
The current or former client has provided informed written consent to the solicitor acting, including to the measures taken to protect their information.
27
What are the key requirements for informed consent under Part 6.5 of the SRA Code of Conduct?
Informed consent must:
Be given or evidenced in writing by the current or former client, and
Include agreement to the measures taken to protect their confidential information.
"Effective measures" are procedures or safeguards put in place to ensure there is no real risk of disclosing confidential information held about a current or former client.
28
what is the main benefit of mediation over arbitration?
Mediation allows the parties to come to their own agreement.
With arbitration, the arbitrator makes a final decision, whereas with mediation the parties agree on a solution themselves. Answer A is wrong because arbitration is also held in secret or not
publicly. Answer B is incorrect because technically arbitration can also be conducted by ordinary people without participation of lawyers. Answer C is likewise for arbitration (i.e. the mediator / arbitrator is chosen by the parties). Answer D is not the
best answer but the result of a mediation can also be binding if both parties sign an agreement confirming the same.
29
Can an employer be held vicariously liable for an employee's deliberate flouting of express prohibitions?
Yes, an employer can still be vicariously liable if the employee was acting within the course of their employment, even if they deliberately flouted express prohibitions.
30
Why does the law hold employers liable for employees' actions even if express prohibitions were in place?
To prevent employers from evading vicarious liability by simply prohibiting employees from committing torts, while ensuring liability is not imposed for acts wholly unconnected with the employee's work.
30
What is the significance of Rose v Plenty [1976] in vicarious liability?
It established that an employer could be vicariously liable for an employee’s negligent act, even when the employee disobeyed orders, if the act was connected to the employer's business. Scarman LJ stated that an employer is vicariously liable because they “put matters into motion,” and if this motion causes damage to another, liability arises.
31
How does the principle of vicarious liability balance fairness to employers and plaintiffs?
It ensures employers cannot evade liability through prohibitions while avoiding liability for acts wholly unrelated to employment.
32
Can an employer avoid liability if the employee's actions were explicitly prohibited?
No, the employer can still be liable if the employee’s actions were sufficiently connected to their employment duties. It must be shown that the employee’s act, though prohibited, was connected to their employment and furthered the employer’s business.
33
What is the definition of misrepresentation in contract law?
A misrepresentation is an untrue factual statement made by one party to another before or at the time of the contract, inducing the other party to enter the contract.
33
What must a statement involve to qualify as a misrepresentation?
The statement must be of past or existing fact, not opinion, intention, or law, and must induce the other party to enter the contract.
34
What is the standard for fraudulent misrepresentation?
A fraudulent misrepresentation is made knowingly, without belief in its truth, or recklessly as to whether it is true or false (Derry v Peek (1889)).
35
How does the burden of proof differ for fraudulent and negligent misrepresentation?
The burden of proof is higher for fraudulent misrepresentation, requiring intent to deceive or dishonesty, whereas negligent misrepresentation only requires carelessness or a lack of reasonable belief in the statement’s truth.
36
What is negligent misrepresentation under common law?
Negligent misrepresentation occurs when a representor who owes a duty of care to a representee acts carelessly in making a statement (Hedley Byrne v Heller (1963)).
37
What is statutory misrepresentation under section 2(1) of the Misrepresentation Act 1967?
A statutory misrepresentation occurs when the representor makes a false statement without reasonable grounds to believe it is true, even if it was not made fraudulently.
37
Why is statutory misrepresentation preferable to common law negligent misrepresentation?
Damages for statutory misrepresentation cover all direct losses from the misrepresentation, while common law damages are limited to reasonably foreseeable losses.
Damages for statutory misrepresentation are calculated by reference to all direct loss incurred as a result of the misrepresentation.
37
What is the bar to rescission under section 2(2) of the Misrepresentation Act 1967?
The court may award damages instead of rescission for non-fraudulent misrepresentation if rescission is inequitable, such as in a commercial transaction involving the transfer of an entire business.
Rescission may be barred in significant commercial transactions, such as the transfer of a business, as it may not be equitable to unwind the contract.
38
What is the basic rule for the standard of care in negligence?
The defendant must conform to the standard of care expected of a reasonable person (objective standard), as established in Blyth v Birmingham Waterworks (1856).
39
How does common practice influence the determination of negligence?
A defendant may not be negligent if they conform to a common practice unless there is justification to depart from that practice (Phillips v Whitely (1938)).
40
How do professional guidelines affect the standard of care?
Professional guidelines or statements of standard practice are strong evidence of the proper standard of care. Departures from such guidance may indicate a breach of duty (Lloyd Cheyham & Co Ltd v Littlejohn & Co (1987)).
41
What is the standard of care for someone claiming to have a special skill?
they are held to the standard of an ordinary skilled person professing to have the special skill
42
What is the Bolam Test for professionals?
A professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of professionals skilled in that area (Bolam v Friern Hospital Management Committee (1957)).
43
What insurance-related activities are prohibited under the Scope Rules?
Insurance distribution activities for insurance-based investment products.
Creating, developing, designing, or underwriting a contract of insurance.
44
When is the Directions Questionnaire usually submitted?
The DQ is the first form to be filed after the initial claim, defence and counterclaim have been served.
44
What is a transaction at an undervalue under the Insolvency Act 1986?
A transaction where a company:
Makes a gift of property, or
Receives significantly less than market value,
within two years before the commencement of winding up (s. 238).
45
What must a firm do to carry on insurance distribution activities under the Scope Rules?
The firm must:
Notify the SRA in the prescribed form (rule 5.3).
Be registered on the Financial Services Register by the FCA (via SRA).
Appoint an insurance distribution officer.
46
What steps must be taken if a claim is issued against the wrong defendant in a partnership dispute?
An application must be filed to substitute the defendant under CPR rule 19.4(1). Claims against partnerships must be brought in the name under which the partnership operated at the time the cause of action accrued (PD 7A, paragraph 5A.3). If the error is your fault, you must explain the situation honestly to your client per SRA Principles and Part 7.11 of the SRA Code of Conduct, and your firm may need to bear the application costs.
46
What is the time limit for a preference under the Insolvency Act 1986?
A preference must be given within six months prior to the commencement of winding up, not two years.
47
When can a defendant rely on the charitable gift defense under the Consumer Protection Act 1987?
Under s. 4(1)(c) of the Consumer Protection Act 1987, a defendant is not liable if the product was supplied other than in the course of business and not with a view to profit (e.g., for charitable purposes).
48
When is the Business Asset Disposal Relief for CGT available?
The Business Asset Disposal Relief can be claimed by individuals on the disposal of any securities or interests in securities in a company, provided the company was the individual’s ‘personal company’ throughout the period of two (2) years ending with the date of disposal. This means that the shares must have been held in a trading company, the shareholder must have held at least 5% of the voting rights in the company and 5% of the ordinary share capital, and the individual must have been either an officer or employee of the company.
49
Where can a personal injury claim with a gross value exceeding £50,000 be issued?
It can be issued in either the County Court or the High Court, provided the conditions for the High Court (complexity, high monetary value, or public importance) are met. (CPR 16.3(6), PD 7A para. 2.2, High Court and County Courts Jurisdiction Order 1991).
49
What is the monetary threshold for clinical negligence claims to be issued in the High Court?
Clinical negligence claims can only be issued in the High Court if their value exceeds £100,000, compared to the £50,000 threshold for personal injury claims not involving clinical negligence.
50
What factors must be disregarded when calculating the expected recovery amount for jurisdiction purposes under rule 16.3(6) of the CPR?
Disregard:
- Court awards of interest and costs
- Potential findings of contributory negligence
- Defendant counterclaims
- Defence set-offs
- Liability of the defendant to pay amounts to the Secretary of State for Social Security
51
What is the monetary threshold for issuing a personal injury claim in the High Court?
The value must be £50,000 or more, and the claim must also meet one of the following conditions:
Complexity
High monetary value
Public importance (PD 7A para. 2.2, CPR).
52
In which courts can a personal injury claim with a gross value exceeding £50,000 be issued?
It can be issued in either the County Court or the High Court, provided the High Court conditions are met (complexity, high monetary value, or public importance).
52
Is there an upper limit on claims in the County Court?
No, there is no upper limit for claims in the County Court.
53
What is the monetary threshold for clinical negligence claims to be issued in the High Court?
The claim value must exceed £100,000, compared to £50,000 for other personal injury claims (High Court and County Courts Jurisdiction Order 1991).
54
What is the distinction between a genuine liquidated damages and penalty clauses?
Liquidated damages: A payment clause reflecting a genuine pre-estimate of losses, enforceable if it represents the innocent party’s legitimate interest in contract performance.
Penalty clause: A clause imposing a sum that is extravagant or unconscionable in comparison to the potential loss from the breach, making it unenforceable. Courts will instead assess a fair quantum of damages.
55
What was the key principle established in Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd (1915) regarding penalty clauses?
A clause is considered a penalty (and unenforceable) if the sum to be paid for a breach is "extravagant and unconscionable" compared to the greatest possible loss that could result from the breach.
56
Does the Consumer Rights Act 2015 apply to contracts between businesses?
No, the Consumer Rights Act 2015 does not apply because it governs contracts between traders and consumers, not business-to-business contracts.
57
When does the Unfair Contract Terms Act 1977 apply to contracts between businesses?
The Unfair Contract Terms Act 1977 applies to exclusion or limitation of liability clauses in business-to-business contracts and uses a reasonableness test. However, it is not relevant to liquidated damages or penalty clauses.
58
Under the Consumer Protection Act 1987 (CPA), who is liable if damage is caused wholly or partly by a defect in a product?
Under section 2(1) of the CPA, liability arises for any person to whom subsection (2) applies if damage is caused wholly or partly by a defect in a product.
58
Who does section 2(2) of the Consumer Protection Act 1987 apply to?
Section 2(2) applies to:
(a) The producer of the product.
(b) Any person who puts their name, trade mark, or distinguishing mark on the product, holding themselves out as the producer.
(c) Any person who imports the product into the UK for supply in the course of their business.
59
What constitutes a preference under the Insolvency Act 1986?
A preference occurs when a company does something that puts one of its creditors in a better position on going into insolvent liquidation than the creditor would have been in if the action had not occurred.
60
How long is the period during which a preference can be set aside under the Insolvency Act 1986?
A liquidator or administrator may apply to set aside a preference if it was given:
Six months prior to the commencement of a winding up for non-connected persons.
Two years prior to the commencement of a winding up if given to a connected person, such as a director or close relative of a director.
61
Can you give examples of a preference under the Insolvency Act 1986?
Examples include:
Paying into a bank account to clear an overdraft guaranteed by directors while ignoring ordinary creditors.
Repaying a director's loan account to avoid repayment issues once an insolvency practitioner is appointed.
62
Who may sit at a criminal trial in the magistrates' court?
Either a District Judge (Magistrates’ Courts) or a bench of lay magistrates (Justices of the Peace).
- District Judges hear criminal cases, youth cases, and some civil proceedings. They typically deal with longer and more complex matters coming before the magistrates' court.
- Lay magistrates hear prosecutions for summary offences and some triable either-way offences. They may be assigned to hear a criminal trial.
62
Can a solicitor represent a client in the Crown Court?
No, unless the solicitor has specialist training required to gain higher rights of audience. Without this qualification, solicitors cannot represent clients in the Crown Court, as per Section 14 of the Legal Services Act 2007.
62
What rights of audience do solicitors automatically have upon admission?
Solicitors are automatically entitled to conduct advocacy in tribunals, Coroners’ Courts, magistrates’ courts, county courts, the Family Court, and European courts under the SRA Authorisation of Individuals Regulations.
63
What qualifications are required for solicitors to represent clients in the Crown Court or higher courts?
Solicitors must gain either the Higher Courts (Civil Advocacy) Qualification or the Higher Courts (Criminal Advocacy) Qualification to represent clients in the Crown Court, High Court, Court of Appeal, or Supreme Court.
64
When can a solicitor proceed with a transaction under the Proceeds of Crime Act 2002 (POCA)?
A solicitor can proceed if they (through their MLRO) have made a disclosure to the NCA and:
Have not received a refusal from the NCA within 7 working days after making the disclosure.
If there was an initial refusal, 31 days must pass without further action by the NCA to deem consent granted.
64
What constitutes a defence under s. 328(2)(a) of POCA for proceeding with a transaction?
It is a defence if the solicitor has made the appropriate disclosure to the NCA and received no refusal within the prescribed notice period or if deemed consent is granted after 31 days following an initial refusal.
64
Why can’t a solicitor inform the client about the reason for delays in completing a transaction?
Informing the client could constitute tipping off under s. 333A of POCA, which is a criminal offence.
Ceasing to act or refusing to proceed may also inadvertently tip the client off about the investigation, which is prohibited under s. 333A of POCA.
65
What is the definition of a "breach of the peace" according to R v Howell (1981)?
A breach of the peace occurs when harm is actually done, or is likely to be done, to a person or their property, or when a person is in fear of such harm through an assault, affray, riot, unlawful assembly, or other disturbance.
66
Under what circumstances can a police officer arrest for a breach of the peace?
A police officer can arrest for a breach of the peace if:
A breach of the peace is committed in the officer’s presence,
The officer reasonably believes that a breach of the peace will be committed in the immediate future, or
A breach has already been committed, and the officer reasonably believes a renewal of it is threatened.
67
What must a police officer have to justify an arrest for breach of the peace, even if the breach has not yet occurred?
The police officer must have reasonable grounds to believe that a breach of the peace is imminent, not just a possibility, and that the arrest is necessary to prevent it.
An arrest would be unlawful if the police had no reasonable grounds to believe that the protesters would commit a breach of the peace in the immediate future. The belief that they might "try to cause trouble" was insufficient for arrest.
67
What is an undertaking in the context of legal practice?
An undertaking is an enforceable promise made by a solicitor to do something, refrain from doing something, or cause something to be done, which someone reasonably relies on. It can be given orally or in writing and does not necessarily include the word “undertake.”
67
What happens if no specific timescale is agreed for the provision of documents after an undertaking is given?
If no timescale is agreed, the documents must be provided within a reasonable time (Part 1.3 of the SRA Code of Conduct).
68
In the scenario where a solicitor assures the court that documents will be provided, but no specific timescale is set, when must the solicitor provide the documents?
The solicitor must provide the documents within a reasonable time.
69
What is the "victim test" in the context of judicial review under the Human Rights Act 1998 (HRA)?
The "victim test" requires a claimant to show that they are, or would be, a victim of an alleged unlawful act by a public body, and that the act is incompatible with their rights under the European Convention on Human Rights (ECHR). This is more restrictive than the usual "sufficient interest" test.
70
Can judicial review proceedings be brought by a group to challenge a decision under the Human Rights Act 1998 (HRA)?
No, judicial review proceedings under the HRA can only be brought by individuals who are victims of the alleged unlawful act, not by a group. Hence, a prisoner rights group cannot bring judicial review proceedings under the HRA because they must show that they are victims of the decision or would be directly affected by the rule change, i.e. they must meet the "victim test" for standing under the HRA.
70
What does Article 66 of the RAO Trustee/PR exclusion allow a law firm or solicitor to do when acting as a trustee or personal representative (PR)?
It allows a law firm or solicitor to arrange, manage, safeguard, administer, or advise on trust matters without FCA authorisation, as long as the remuneration is based solely on the time spent and not additional fixed fees.
70
Can a law firm partner acting as a trustee charge an annual management fee for the administration of trust investments under the RAO?
No, the law firm partner cannot charge an annual management fee, as it would constitute "additional remuneration" not based on time spent. Remuneration must be based on the actual time spent on trustee duties.
70
Does the fact that the prison is privately run prevent judicial review proceedings?
No, although the prison is privately run, it is still conducting a public function, and judicial review can be brought against its decisions if they involve a public law issue, such as a breach of rights under the HRA.
71
What condition must be met for a law firm partner to rely on the RAO exclusion when managing trust investments?
The partner may rely on the RAO exclusion provided any remuneration is calculated on a time-spent basis, rather than a fixed annual fee or administration fee.
71
Is FCA authorisation required for a law firm partner acting as a trustee when managing investments in stocks and shares under the RAO?
No, FCA authorisation is not required if the partner is relying on the RAO exclusion and is only charging based on time spent.
71
Under the RAO, is investing in stocks and shares a regulated activity for a law firm partner acting as a trustee?
Yes, investing in stocks and shares is a regulated activity (discretionary portfolio management), but the partner may engage in it without FCA authorisation if relying on the RAO trustee exclusion and charging based on time spent.
72
What is the consequence of failing to comply with an "unless order" under CPR 3.4(2) and PD 3A.1.6?
The claim will automatically be struck out without the need for a further order from the court.
73
Under CPR 3.1(3), what may a court include when making an order?
The court may make an order subject to conditions, including the condition to pay money into court, and specify the consequences of failure to comply with the order or condition.
73
What does CPR 3.8(1) state regarding sanctions for failure to comply with court orders or rules?
The sanction will take effect automatically unless the party in default applies for and obtains relief from the sanction.
74
What does CPR 3.9 govern regarding an application for relief from sanction?
It sets out the circumstances in which the court will consider granting relief from a sanction.
75
What happens if a party fails to comply with an "unless order" but seeks relief from the sanction under CPR 3.8(1)?
The claim may be reinstated if the claimant successfully applies for relief from the sanction, as the strike-out is not final without such an application.
76
What is the convention regarding the membership of ministers in the UK government?
Ministers, by convention, should be members of either the House of Commons or the House of Lords to ensure accountability to Parliament.
76
How does HMRC define a business activity for VAT purposes?
HMRC defines a business activity as a continuing activity involving receiving payment for goods or services, either in money or other forms such as barter or in-kind. The activity must have frequency, scale, and be ongoing over time.
76
Can ministers in the UK government be appointed to the Cabinet if they are not currently Members of Parliament (MPs)?
Yes, ministers can be appointed to the Cabinet even if they are not currently MPs. However, they would typically be appointed as life peers to the House of Lords.
Ministers who are not sitting MPs can be appointed as life peers in the House of Lords, allowing them to participate in Parliament and be held accountable even if they are not elected MPs.
77
When is enhanced CDD required?
Enhanced due diligence applies when a transaction is:
Complex; or
Unusually large; or
Has an unusual pattern or no apparent economic or legal purpose
78
What is the timeframe within which a client must make an application for a detailed assessment to contest a solicitor's bill?
The client must make an application within one month of receiving the solicitor’s bill (s. 70(1) of the Solicitors Act 1974).
If made after one month but within 12 months of delivery of the bill, the court may allow the application at its discretion.
After 12 months, no order for assessment can be made unless in special circumstances.
79
What is the marriage allowance for income tax?
The marriage allowance allows a person whose income is lower than the personal allowance, and whose spouse or civil partner pays
income tax at the basic rate, to transfer up to £1,260 of their remaining personal allowance in the 2023-2024 tax year to their spouse or civil partner. The allowance is only available to couples who were both born on or after 6
April 1935.
80
When is the Marriage Couple's Allowance applicable?
The Marriage Couple's Allowance is applicable where at least one spouse is born before 6 April 1935.
81
Can a buyer rescind the contract due to fraudulent misrepresentation?
A buyer has in principle the right to rescind the contract due the fraudulent misrepresentation. Rescission is the principal remedy for misrepresentation. All misrepresentations, whether the false statement was fraudulent,
negligent, or innocent, give the innocent party the right to set aside the contract by giving notice to the representor, and being restored to the pre-contractual position. Rescission is an equitable remedy, subject to the court’s
discretion.
However, rescission may only be granted however where the following ‘bars to rescission’ are not present:
¢ Affirmation of the contract — a representee who affirms the contract, with full knowledge of the facts, cannot subsequently avoid the contract (Long v Lloyd [1958] 1 WLR 753). This does not apply in this case since the buyer
did not affirm the contract, hence, option C is incorrect.
e Lapse of time — if the injured party does not act within a reasonable time frame, the right to rescind is lost. For fraudulent misrepresentation, claims must be brought within six years, however the clock starts when the fraud
is, or should have been, discovered (s. 32 Limitation Act 1980). This does not apply here therefore option B is incorrect.
e Third parties have acquired rights in the subject matter of the contract — if a third party acquires rights in property, in good faith and for value, the misrepresentee will lose his right to rescind (Phillips v Brooks Ltd(1919) 2 KB
243). This is not applicable in this case.
Option A is incorrect since rescission is an available remedy for any type of misrepresentation.
Option E is incorrect as there is no statutory bar to rescind a contract due to fraudulent misrepresentation under the Misrepresentation Act 1967. Establishing fraudulent misrepresentation is not necessary under the 1967 Act. A
representee need only establish that there was a misrepresentation. The representor must then demonstrate that they had reasonable grounds to believe that the facts they represented were true.
Where substantial rescission is impossible (although precise restoration is not required) and the parties cannot be restored to their original position, the right to rescind is lost. An example is where consumer goods have already
been consumed, or where natural resources had been totally exhausted by the time the claimant elected to plead rescission ( Vigers v Pike (1842) 2 ER 220).
82
A buyer seeks to rescind a contract due to fraudulent misrepresentation. Can the buyer rescind the contract if restitution is impossible?
No, the buyer will not be able to rescind the contract because restitution is impossible.
Rescission is the principal remedy for misrepresentation, including fraudulent misrepresentation, and allows the innocent party to set aside the contract and be restored to their pre-contractual position.
However, rescission is not possible if restitution is impossible, such as when the subject matter of the contract has been consumed or substantially altered (e.g., goods already used or natural resources exhausted).
Therefore, if restitution is impossible, the buyer loses the right to rescind the contract.
83
What is the general principle regarding foreseeability and liability under Rylands v Fletcher?
Liability under Rylands v Fletcher depends on whether the harm or damage caused by the escape of the substance was foreseeable. If the harm is foreseeable, the landowner may be held liable for the damage.
A landowner will not be liable for damage if the specific type of harm caused by the escape was unforeseeable. Only foreseeable risks are considered when determining liability under Rylands v Fletcher.
83
What is the rule in Rylands v Fletcher?
The rule in Rylands v Fletcher holds that a person who brings something onto their land which could cause harm if it escapes is liable for any damage caused, provided the use of the land is non-natural.
83
What is Business Property Relief (BPR) and how does it affect inheritance tax?
Business Property Relief (BPR) reduces the value of qualifying business assets for inheritance tax purposes, potentially lowering the tax liability. BPR can offer a 50% or 100% reduction, depending on the asset type, if the conditions such as ownership period and control are met.
84
What are the main conditions for Business Property Relief (BPR) to apply?
To qualify for BPR, the asset must be in a trading business, and the transferor must have owned it for at least two years prior to transfer. The transferor must also have control of the business at the time of transfer.
85
What is required for an individual within an authorised firm to carry out regulated activities under the Financial Services and Markets Act 2000 (FSMA)?
Individuals must be specifically approved by the Financial Conduct Authority (FCA) as ‘fit and proper persons’ to carry out regulated activities. This approval is necessary for individuals performing controlled functions, regardless of the firm's authorisation.
The firm's approval (e.g. based on internal assessment) does not automatically extend to its employees. Each individual who will carry out regulated activities must receive separate approval from the FCA to ensure they meet the 'fit and proper' criteria.
86
What factors are considered in determining whether goods meet the "satisfactory quality" standard under Section 9 of the Consumer Rights Act 2015, and how is this determination made?
Section 9 of the Consumer Rights Act 2015 provides that every consumer contract for the sale of goods is to be treated as including a term that the quality of the
goods is satisfactory. Section 9(3) of the Act further provides that the quality of goods includes their state and condition in respect of which a number of factors are relevant, including fitness for all the purposes for which goods of
that kind are usually supplied, appearance and finish, freedom from minor defects, safety and durability. The list of factors is not exhaustive. Whether or not a product is of satisfactory quality is a question of fact; however, if a
product satisfies all but one of the factors listed in s. 9(3) of the Act, the seller will not be able to assert that the product was nevertheless of satisfactory quality; each of the factors is independent of the others.
86
If a product is not durable, is it an issue of satisfactory quality or fitness for purpose under the Consumer Rights Act 2015?
It should be noted that durability is an issue of satisfactory quality rather than fitness for purpose
as per s. 9(3) of the Consumer Rights Act 2015.
86
Under Section 267 of the Insolvency Act 1986, what is the minimum debt threshold required to serve a statutory demand and file a bankruptcy petition?
The debt must exceed £5,000 to serve a statutory demand and file a bankruptcy petition, as per Section 267(2)(a) of the Insolvency Act 1986.
86
What is the significance of a statutory demand under Section 268(1) of the Insolvency Act 1986 in relation to bankruptcy petitions?
A statutory demand must be served and left unsatisfied for at least three weeks before a bankruptcy petition can be filed, unless there has been an attempt at execution of the judgment debt that was returned unsatisfied in whole or part.
87
In a case involving damage to property owned by a third party, what is recoverable under negligence for consequential and economic loss?
Only actual consequential loss is recoverable, such as the physical damage to property and loss of profit directly linked to that damage. Pure economic loss, not tied to physical injury or property damage, is typically not recoverable, as seen in Spartan Steel and Alloys Ltd. v Martin & Co (Contractors) Ltd [1973].
87
When does an Act of Parliament come into effect after receiving Royal Assent, if no commencement order is made or commencement date specified in the Act?
The Act comes into effect from midnight at the start of the day of Royal Assent, as per Section 4 of the Interpretation Act 1978.
87
Under the Fatal Accidents Act 1976, who are considered eligible to claim for a fatal accident?
a. Under the Fatal Accidents Act 1976, the following are eligible to claim in the name of the executor or administrator of the deceased’s estate (known as ‘dependants’):
i. A spouse or former spouse of the deceased, or person who was living as the spouse of the deceased, in the same household immediately before the date of the death and had been so living for at least two years;
ii. any parent or other ascendant of the deceased or person treated by the deceased as his parent;
iii. any child or other descendant of the deceased or any person who has been treated as a child of the family in relation to any marriage of the deceased;
iv. any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
88
In a scenario where a lifeguard voluntarily intervenes to rescue a child (eg from drowning), what is the basis for establishing a duty of care?
The lifeguard establishes a duty of care by choosing to intervene. Once he voluntarily takes action, the foreseeability of harm arising from his actions creates a duty of care, and if the intervention is negligent, he can be held liable.
88
Under the Equality Act 2010, when is indirect discrimination considered to occur?
Indirect discrimination occurs when a provision, criterion, or practice applies to everyone equally but disproportionately disadvantages individuals with a protected characteristic, such as religion. In such cases, the employer must show that the policy is a proportionate means of achieving a legitimate aim.
Where indirect discrimination is established, there is an opportunity for those responsible for the discrimination to show that it was a proportionate means of achieving a legitimate aim. Although ensuring a
consistent dress code is a legitimate aim, the blanket application of the policy is unlikely to be justified as a proportionate means because some characteristics such as religion do not in practice impede the ability to maintain
professional and business attire in a workplace environment.
88
When must a client comply with a court judgment for payment of money, such as damages and costs, if they have applied for a stay but it has not been granted yet?
The client must comply with the judgment within 14 days of the date it was given, unless the court specifies a different date or has stayed the proceedings or judgment. Simply applying for a stay does not delay the obligation to comply.
89
Under the Sale of Goods Act 1979 and the Unfair Contract Terms Act 1977, when can a wholesaler exclude the implied term of satisfactory quality in a contract for the sale of goods?
A wholesaler can exclude the implied term of satisfactory quality if the exclusion clause is reasonable, as defined under Section 6(1A) of the Unfair Contract Terms Act 1977. In this case, as the company knowingly purchased second-hand goods that had not been tested, it was reasonable for the wholesaler to exclude this term, and the company will have no cause of action against the wholesaler for breach of this implied term.
90
What is the appropriate forum for a person to seek a declaration of incompatibility against a legislation?
The High Court. Only the HC and appellate courts such as the Court of Appeal or the Supreme Court have the power to make a declaration of incompatibility. Lower courts, such as the County Court or Crown Court, though they can hear matters where the ECHR are alleged to be violated, or threatened to be violated, cannot issue declarations of incompatibility.
91
What is the primary factor in determining whether there has been a private nuisance in a case involving odours from a nearby business?
The primary factor in determining whether there has been a private nuisance is whether the odour is unacceptable in the environment where the activity is taking place, such as an industrial estate. The court will assess if the interference with the claimant's enjoyment of their property is unreasonable in the context of the specific environment, balancing land use rights between neighbours.
Key points to remember:
Private nuisance involves unlawful interference with the use or enjoyment of land or rights over it.
The interference must be unreasonable rather than causing physical damage or injury.
Factors like the intensity of the odour, malice, or personal opinions are secondary considerations in this test.
91
What are the requirements under the SRA Code of Conduct for Solicitors for a solicitor and their firm to enter into a referral and fee-sharing agreement with a third party?
Under Part 5.1 of the SRA Code of Conduct for Solicitors, a solicitor and their firm can enter into a referral and fee-sharing agreement with a reputable third party, provided the following requirements are met:
Client informed: The client must be informed in writing about any financial or other interest that the solicitor or their firm has in referring the client to another person, or which an introducer has in referring the client to them.
Accounting for commission: If commission is received, the solicitor must account for it under Part 4.1 of the Code, which involves informing the client of the amount, ensuring the money is paid into the client account, and obtaining the client’s explicit instructions as to what to do with it.
Fee sharing is permitted if these requirements are satisfied, but the solicitor must act in the best interests of the client and uphold their independence and integrity at all times (as outlined in SRA Principles 3, 5, and 7).
91
What damages can be claimed under the Fatal Accidents Act 1976 in the event of a wrongful death?
Under the Fatal Accidents Act 1976 (as amended by the Administration of Justice Act 1982), the following damages can be claimed:
Statutory bereavement award: A fixed sum claimable by the spouse, civil partner, or parents of a minor.
Loss of income and services dependency: Claims for financial support or services (e.g., childcare, gardening) that the deceased provided.
Funeral expenses: Claimable by the dependants who paid for the funeral.
An action must be brought within 3 years from the date of death or the date of knowledge of the death.
Note: The Damages Act 1996 allows for claims of intangible benefits loss, which is not possible under the Fatal Accidents Act 1976.
92
What is the golden rule
According to the golden rule, legislative wording must be interpreted as far as possible within its ordinary and plain meaning. Where the plain meaning of the words produces a “manifest absurdity” , however, the grammatical and
ordinary sense of the words may be interpreted, so as to avoid absurdity and inconsistency.
Source: Adler v George (1964) 2 QB 7.
93
Under Article 67 RAO, when can a solicitor rely on the exclusion for carrying out specified activities in a professional context?
A solicitor can rely on the exclusion when the regulated activity is not remunerated separately from the other services provided, and the activity is a reasonably necessary part of the services offered, such as the share transfer in a conveyancing transaction.
The Article 67 RAO exclusion allows a law firm or solicitor to rely on the exclusion when carrying out specified activities in the course of a profession or business that is not primarily regulated activities and when these activities
are a reasonably necessary part of the services provided in that profession or business. However, to fall under this exclusion, the regulated activity must not be remunerated separately from the other services provided.
In the given scenario, the solicitor is arranging the transfer of a share in a management company as part of a conveyancing transaction involving the purchase of a leasehold property. The solicitor's overall fee for the conveyancing
work covers all services, including arranging the share transfer. Because the solicitor's fee does not include separate remuneration for the share transfer and the activity is a reasonably necessary part of the property transaction,
the solicitor can rely on the Article 67 RAO exclusion.
Option B correctly reflects this understanding, stating that the solicitor can rely on the Article 67 RAO exclusion as long as the overall fee for the conveyancing work does not include a separate remuneration for the share transfer.
This aligns with the conditions outlined in the Article 67 RAO exclusion.
94
Can an offer be revoked after it has been accepted?
No, once an offer has been accepted, it cannot be revoked. The offeror can revoke the offer only before acceptance.
This applies even when the offeror has stated that the offer will remain open for a certain period, unless the offeree can
establish the existence of a separate and distinct contract to keep the offer open (i.e. that he had bought the option to purchase by a separate agreement).
94
What is required for an informal decision to be binding under the Duomatic principle?
The decision will only be binding if all shareholders entitled to vote agree. If there is no unanimous agreement, the informal decision is not binding.
95
Change of name of company - what is the approval threshold required?
Changing the name of a company requires the passing of a special resolution (s. 77(1) of the Companies Act 2006).
96
What is the position on language preference in the County Court in Wales?
Proceedings may be issued in Welsh, and the court will provide and pay for a Welsh interpreter if necessary, as per the Welsh Language Act 1993.
97
What criteria must be met for a secondary victim to succeed in a claim for psychiatric injury under Alcock v Chief Constable of South Yorkshire Police?
The claimant must meet these criteria: proximity in time and space to the event, sudden appreciation of a horrifying event, a relationship of love and affection with the primary victim, reasonable foreseeability of psychiatric injury, and a medically recognized psychiatric illness. In the given scenario, the woman fails due to the lack of a close relationship with the primary victim.
98
Does the incidental exemption apply to arranging for a pension transfer / occupational pension scheme?
Incidental exemption under FSMA does not apply to arranging, even for an execution-only client, in respect of a pension transfer or opt out from an occupational pension scheme.
99
Are decisions of the ECtHR binding and enforceable in UK?
Decisions of the ECtHR whilst binding are not enforceable in the UK but the government is likely to pay.
100
When can a defendant file an Acknowledgment of Service under CPR 10.1(3)?
(a) If the defendant is unable to file a Defence within the specified time.
(b) If the defendant wishes to dispute the court's jurisdiction.
100
When must an Acknowledgment of Service or Defence be filed?
Within 14 days of the deemed date of service of the Particulars of Claim.
100
Is the filing of an Acknowledgment of Service mandatory?
No, it is optional and only required if the defendant cannot file a Defence within the relevant period or wishes to dispute the court's jurisdiction.
100
What is the general rule for filing a Defence under CPR 15.4(1)?
(a) 14 days after service of the Particulars of Claim; or
(b) 28 days after service of the Particulars of Claim if an Acknowledgment of Service is filed under Part 10.
101
Does the 28-day period automatically apply without an Acknowledgment of Service?
No, the 28-day period applies only if an Acknowledgment of Service is filed.
102
Is Parliamentary privilege available to a senior official giving evidence during a committee hearing?
Yes. Parliamentary privilege is available to any person, whether a MP or not, giving evidence in parliamentary proceedings, which includes debates, committee hearings and published reports
103
Role of special damages in tort
Special damages in tort are intended to compensate the claimant for their actual pecuniary loss up to the date of trial, such as travel and medical expenses incurred by the claimant.
103
In a liquidation, does a creditor have rights of redress against directors or members for unpaid shares?
No, creditors do not normally have rights of redress against directors or members for unpaid shares. Claims against members must be made by the liquidator.
103
When can a creditor claim directly against a director or member?
A creditor can claim directly against a director or individual member if they provide a personal guarantee.
104
What must a solicitor disclose when referring a client to another business or person?
The solicitor must fully inform the client of any financial or other interest they have in the referral.
104
What is the primary requirement when recommending a client to another person?
The recommendation must be in the best interests of the client and must not compromise the solicitor's independence.
105
Does the prohibition on referral fees apply to all cases?
No, the prohibition on referral fees only applies to claims for damages for death or personal injury (PI).
106
What type of resolution is required to remove a director according to the Companies Act 2006?
An ordinary resolution, but it cannot be passed by a written resolution.
107
Can a company’s articles of association require a higher majority for an ordinary resolution to remove a director?
No, if the Act specifies an ordinary resolution for removing a director (e.g., under s. 168 of the Act), this applies despite any higher majority requirements in the articles.
108
What notice period is required to remove a director under the Companies Act 2006?
A special notice must be given to the company at least 28 days before the meeting where the resolution is to be moved.
109
Can a private company pass a written resolution to remove a director or auditor before the expiration of their term?
No, under s. 288 of the Companies Act 2006, such a resolution may not be passed as a written resolution.
109
Can articles of association include provisions stating that an entrenched provision can never be amended or repealed?
No, under s. 22(3) of the Companies Act 2006, companies cannot provide that an entrenched provision can never be amended or repealed.
109
Can an entrenched provision in the articles of association be amended by agreement of all members?
Yes, all members can agree to amend or repeal entrenched provisions despite the restriction in the provision.
110
Who can order the amendment of a company’s entrenched provisions besides the members?
The court can also order the amendment of a company’s articles in certain circumstances.
111
appropriate causation test for multiple independent causes
Appropriate test – balance of probabilities
But for test – more appropriate where there is single independent cause
Material contribution – multiple CUMULATIVE causes
act of third party - if evaluating break of causation
112
In what situations does the doctrine of vicarious liability apply?
The doctrine of vicarious liability may apply when there is a relationship of principal and agent, a partnership relationship and relationship of employer and employee.
113
What type of resolution is required and what document must be filed with the Registrar of Companies for change of registered address?
- Giving notice to Registrar of Companies using form AD01, which must be filed within 14 days of the change taking place.
- No requirement to pass or file any board or members’ resolution to give effect to the change of address.
- No need to file copy of lease.
114
What is required to apply for judicial review of a decision?
The applicant must have a "sufficient interest" (standing) in the decision (The Supreme Court Act 1981 s. 31(3)).
114
Can Barristers within the same Chambers work on opposing sides of the same case?
Barristers within the same Chambers are not liable for each other’s work, they remain independent practitioners and may appear on opposite sides in the same case.
115
Can a person challenge a decision they disagree with if it does not affect them personally?
No, they must have a direct, personal interest in the decision or action under challenge.
116
How does the court treat "sufficient interest" in representative cases?
The court applies the rule liberally, especially if the applicant is affected by the decision, there is substance to their challenge, and no more appropriate challenger exists.
117
How can a company change its registered office?
By giving notice to the Registrar of Companies, which must be filed within 14 days of the change taking place.
118
When does a change of registered office take effect?
When the notice of the change is registered by the Registrar of Companies.
119
Can a document still be validly served on the old registered office after a change?
Yes, within 14 days from the date on which the new address is registered, a document may validly be served at the old registered office (s. 87 of the Companies Act 2006).
120
Potential liability under the Criminal Finances Act 2017
The company may be liable to an unlimited fine. If a relevant body is successfully prosecuted under the Criminal Finances Act 2017, they will face an unlimited fee and possible ancillary sanctions, such as confiscation or serious crime prevention orders in addition to suffering serious reputational damage.
e.g. where a company is charged for failing to prevent tax evasion by its senior managers, company did not have reasonable prevention procedures in place.
121
121
121
122
123
