FLK1 Flashcards
Are ECtHR decisions binding on UK courts under the HRA?
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.
What happens if an ECtHR decision conflicts with UK domestic precedent?
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
What must you ensure when referring a client to a third party under the SRA Principles?
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).
What are the key requirements under Part 5 of the SRA Code of Conduct regarding referrals?
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.
When is VAT charged under the Value Added Tax Act 1994?
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.
What did Wakefield College v HMRC (2018) clarify about “business” for VAT purposes?
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.
What is the liability for damage caused by encroaching trees under nuisance law?
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).
What are the tests for foreseeability and continuing nuisance for encroaching trees?
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.
What happens if an expert’s report is not disclosed in accordance with Directions?
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.
Can the opposing party’s consent allow late reliance on an expert’s report or witness statement?
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.
What qualifies as a public assembly under the Public Order Act 1986?
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.
Does the purpose of a public assembly affect the power to impose conditions?
No, the purpose of the assembly is irrelevant to the power to impose conditions under the Public Order Act 1986.
What criminal offence is established under Section 14 of the Legal Services Act 2007?
It is a criminal offence for non-entitled persons to undertake advocacy activity as outlined in the Act.
What advocacy rights do solicitors have under the SRA Authorisation of Individuals Regulations?
Solicitors can conduct their own advocacy in tribunals, Coroners’ Courts, Magistrates’ Courts, County Courts, the Family Court, and European courts without additional qualifications.
What additional qualifications do solicitors need to represent clients in higher courts?
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.
When will the court allow expert opinion evidence?
The court will allow expert opinion evidence if it relates to an issue outside the normal experience of the judge, not a jury.
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?
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.
Does the expert need to be the leading expert for their opinion to be admissible?
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.
Who is prima facie liable under the Consumer Protection Act 1987 for damage caused by a product?
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.
What defines “damage” under section 5(1) of the Consumer Protection Act 1987?
“Damage” is defined as death, personal injury, or damage to any property under section 5(1) of the Consumer Protection Act 1987.
What must a solicitor do on the termination of a retainer?
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.
What is the defence available to a manufacturer or supplier under the Consumer Protection Act 1987?
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.
What is required for a supplier to be liable under the Consumer Protection Act 1987?
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.
Under what circumstances may a solicitor exercise a lien over a client’s papers?
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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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)).
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.
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)).
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.
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.
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.
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).
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)).
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)).
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
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)).
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.
