FLK1 Questions to review

Question 1

A motorcyclist is involved in a multi-vehicle accident on a country road and suffered severe injuries. The motorcyclist contends the accident was attributable to the negligence of the driver of a car travelling in the opposite direction.

After receiving a letter of claim from the motorcyclist, the car driver’s insurers instruct solicitors. The solicitors incur significant costs obtaining witness statements, a plan and photographs of the location, and a copy of the police report. It soon becomes clear to them that the accident was not caused by their insured, but rather by the negligence of a van driver who had pulled out in front of the insured’s car.

The motorcyclist accepted that the van driver was at fault. The van driver’s insurers accepted liability and ultimately settled the claim, so the motorcyclist never issued proceedings.

Can the car driver’s insurer recover any of their costs from the claimant or the responsible party?

Answer 1

No, the insurers cannot recover any of the cost from either of the other parties involved in the accident.

It is unlikely that the insurers will be able to recover any cost incurred in the protocol period. Generally, if the parties comply with the appropriate protocols and fail to resolve their issues, but the claimant nevertheless decides not to continue with the claim, it is unlikely that the defendant will be able to recover any costs. (But note that if proceedings were issued and the claim stayed to allow the parties to comply with the protocols, an award to recover some of the wasted costs of complying with the protocols is more likely.)

Question 2

On incorporation several years ago, a company issued 100 £1 ordinary shares. The company now wishes to issue 100 preference shares to a new investor. The company has Companies (Model Articles) Regulations 2008 (unamended) for private companies limited by shares as its articles of association.

Which of the following best describes the members’ resolutions which must be passed before the shares can be allotted?

Answer 2

A members’ ordinary resolution to give the directors the power to allot the shares, and a members’ special resolution to change the articles to include the preference share rights.

The directors have the power to allot shares if the company has only one class of shares. Here the company is issuing a different class, so the directors need the members to pass an ordinary resolution to give them the power to allot the preference shares. Only equity shares are subject to the statutory preemption rights (and not preference shares) so there is no need to disapply preemption rights. The articles need to be changed by special resolution to include the rights enjoyed by the preference shares.

Question 3

A client and a solicitor enter into a conditional fee agreement (‘CFA’) in a breach of contract claim. The CFA provides for a success fee of 10% and for the client to be responsible for the solicitor’s disbursements, if unsuccessful. The solicitor’s usual hourly rate is £250. During the course of the case, the solicitor incurs disbursements of £400 and undertakes 30 hours of work. The client loses the case and is ordered to pay the opponent’s costs and disbursements.

Which of the following correctly states the client’s liability for his solicitor’s costs under the conditional fee agreement?

Answer 3

The client must pay the solicitor £400 for disbursements only.

The client must pay the solicitor £400 for disbursements. A conditional fee agreement provides that if a case is successful, the solicitor can charge their fee to the client with a percentage uplift (the success fee) beyond the normal fees charged. If the claim is unsuccessful, the client does not pay any fee to their solicitor, although they will be liable to pay the other side’s costs and disbursements and their own disbursements. Here, since the client’s claim was unsuccessful, they are not liable for their solicitor’s fees and no success fee is owed. With regard to the solicitor’s costs, the client is therefore only liable for the disbursements.

Question 4

Three youths agreed to take a taxi without paying the fare. In the taxi they travelled to the city centre, and when the taxi stopped at traffic lights, two of them jumped out and ran off without paying the fare. The third youth was unable to jump out quickly enough and remained in the taxi. When the taxi driver realised what was happening, he set off at speed in an attempt to make sure the remaining youth did not escape without paying. The youth then jumped from the taxi as it was moving and sustained serious injuries.

In an action in negligence by the youth against the taxi driver to recover damages for his injuries, which of the following best describes the likely outcome?

Answer 4

The taxi driver will not be liable to the youth because the defence of illegality will apply.

The taxi driver will not be liable because the defence of illegality will apply to defeat the youth’s claim entirely. The youth was engaged in criminal activity by acting pursuant to a plan to make off without paying the fare, which had already been partially carried out. The defence of illegality is a rule of public policy which prevents a claimant from recovering compensation for damage suffered as a result of their own illegal actions. So, the claimant cannot recover damages for harm suffered whilst he is taking part in criminal activity (jumping out of the taxi without paying the fare). The defence of illegality is a complete defence, defeating the claim entirely.

Question 5

A teenager was a spectator at a motorbike race. He was standing next to the track when two of the bikes collided together just in front of him. Debris flew into the air and a piece hit the teenager on the arm, causing a minor injury. The teenager was so shocked that he has now begun to suffer from post-traumatic stress disorder (‘PTSD’). Evidence shows that the crash was caused by the negligence of the race organisers.

In an action by the teenager against the race organisers to recover damages for the harm he suffered, which of the following best states the likely outcome?

Answer 5

The teenager is likely to recover damages for both the cut to his arm and the PTSD because the PTSD was a consequence of his physical injury.

The teenager will likely be able to recover all of his damages in a negligence action. The organiser owed the teenager a duty of care in respect of the personal injury which he suffered, and this duty extends to psychiatric harm which is consequential on physical injury. The facts show that the duty was breached and that this caused the teenager’s damage, both the physical injury and psychiatric harm.

Question 6

A double glazing company agrees with a home owner to install new windows in the homeowner’s house on 15 August. On 12 August, the double glazing company telephones the homeowner and says that the windows will not be ready for installation until 22 August. The homeowner reluctantly says that they accept the delay.

Can the home owner change their mind on 14 August and enforce the contract based on the original installation date?

Answer 6

No, the homeowner has expressly waived their right to insist on the original date.

The homeowner will not be able to enforce the original date because they waived their right to insist on the original date. Generally, for a variation of a contract to be enforceable, it must be supported by consideration to be enforceable. However, equity provides a way around this. Where a party promises not to enforce the other party’s obligation, the courts may conclude that the agreement is at least temporarily effective through waiver. The waiving party can reinstate the original obligation. However, they must give reasonable notice. Here, the homeowner agreed that the company could delay installation, which would constitute a waiver. It is unlikely that the court would find giving notice of reinstate the day before performance was reasonable.

Question 7

A man is employed to drive a lifting truck in his employer’s warehouse. One day, the windscreen on the truck shattered suddenly. A piece of glass flew into the man’s eye and injured him. The employer had purchased the truck from a reputable supplier and had carried out regular checks and maintenance. Expert tests have not revealed why the windscreen shattered and have not been able to identify any defect or lack of care in its design or manufacture.

In an action by the employee against the employer to recover damages for his injury, which of the following best states the likely outcome?

Answer 7

The employer is not likely to be liable to the employee because the employee cannot prove that anyone was negligent in the design, manufacture, or use of the truck.

The employer is not likely to be liable. An employer owes its employees a duty to take reasonable care to provide them with safe work equipment. This duty is expanded by statute: The Employers’ Liability (Defective Equipment) Act 1969 (‘the 1969 Act’) provides that where an employee suffers personal injury in the course of his employment caused by defect in equipment provided by his employer for the purposes of the employer’s business, and the defect is attributable to the fault of a third party (whether identified or not), the injury shall be deemed to be also attributable to negligence on the part of the employer. On these facts, however, the employee cannot prove that the failure of the truck windscreen was caused by fault on the part of anyone. Because there is no fault to be attributed to the employer under the statute, the employer does not appear to be in breach of its duty and is not likely to be liable to the employee.

Question 8

A car enthusiast is looking for engine oil suitable for their 1958 Jaguar. They find a supplier advertising specialist oil for vintage cars. They telephone the supplier to check that the oil is suitable for the Jaguar and the supplier says that it is. They complete the supplier’s order form and send it to the supplier with payment. The supplier then delivers the oil. It turns out the oil is not suitable for the Jaguar. The supplier’s order form contained an exclusion clause which says ‘The statutory implied condition of satisfactory quality is hereby expressly excluded’. The car enthusiast nevertheless claims the supplier breached their contract.

Can the supplier rely on the exclusion clause?

Answer 8

No, because the clause does not cover the breach.

The enthusiast’s claim will be for breach of the implied statutory condition of fitness for purpose. The condition applies in this case because the enthusiast has made their purpose known expressly to the supplier. The exclusion clause covers only satisfactory quality, so it does not cover the breach that has arisen. (A) is incorrect because this seems to be a consumer contract, so it is subject to the Consumer Rights Act 2015 (‘CRA’), rather than the Unfair Contract Terms Act 1977 (‘UCTA’). (If the UCTA had applied, then the clause would have been subject to the reasonableness test, not void; under the CRA it is void.)

Question 9

A car dealer advertises a car for sale in the newspaper. The advert states ‘beautifully maintained Aston Martin DB9 previously owned by James Bond actor Daniel Craig - £100,000 or near offer’. A James Bond enthusiast sees the advert and offers the car dealer £95,000 which the car dealer accepts, telling him it had always been his dream to drive a car owned by 007. On delivery of the car, the enthusiast notices in the registration document that there have been no previous owners by the name of Daniel Craig.

Can the enthusiast bring the contract to an end?

Answer 9

Yes. The term regarding previous ownership goes to the root of the contract and is therefore a breach of a condition which would entitle the enthusiast to repudiate the contract.

The fact that the car was owned by Daniel Craig is the reason the James Bond enthusiast purchased it. It is therefore so fundamental that it goes to the root of the contract, and so would be classified as a condition. Breach of a condition entitles the innocent party to terminate the contract.

Question 10

A manufacturer in England enters into a contract with a shipowner to transport a consignment of machine parts to a buyer in Japan. The contract contains a clause excluding liability for any damage to the machine parts caused by the shipowner or anyone else involved in their carriage. The shipowner enters into a separate contract with a port operator to load the machine parts onto the shipowner’s ship. The port operator’s employees damage the machine parts whilst loading them.

Can the port operator rely on the exclusion of liability in the contract between the manufacturer and the shipowner?

Answer 10

Yes, because the port owner can rely on the Contracts (Rights Against Third Parties) Act 1999 (unless it has been excluded).

This question is about the doctrine of privity of contract. The port operator is not a party to the contract between the manufacturer and the shipowner. However, under the Contracts (Rights of Third Parties) Act 1999, a third party has a right to enforce a provision of the contract if they were named in the contract (specifically or by class) and it appears the term was intended to be enforceable by the third party. Here, the contract excludes liability for the shipowner and for “anyone else involved” in carriage of the goods. The port operator appears to be within the described class (that is, someone involved in carriage of the goods), and the clause clearly applies to third parties. Even before the 1999 Act, in cases such as this, the courts have found that there is an implied collateral contract with a person who is intended to benefit from an exclusion clause

Question 11

Three business associates form a general partnership. A supplier brings a successful breach of contract claim against the partnership and the partners.

How can the supplier collect the judgment?

Answer 11

The supplier will be able to collect the judgment from the personal assets of all the partners.

A partnership creditor can recover the debt from the partnership or from any of the partners, as each partner is liable for the debts of the partnership. (A) is incorrect because a partnership does not have limited liability, and therefore a creditor can pursue the partners personally for their debt.

Question 12

A bartender, who was also an aspiring musician, admired a violin that a street performer played on the street outside his pub for several weeks. Based on the violin’s appearance and the quality of the sound that it produced, both the street performer and the bartender genuinely believed that it was an old Italian violin, but the matter was never discussed between them. Eventually, the performer agreed to sell the violin to the bartender for a large sum of money. After receiving the violin, the bartender took the violin to be appraised and discovered that it was actually a modern reproduction worth considerably less than he had paid for it.

Is the bartender entitled to claim that the contract is void?

Answer 12

No, because this is a mistake as to the subject matter of the contract. Such contracts cannot normally be set aside.

The circumstances in which a court will find a contract void due to a common mistake as to the quality of the subject matter (as opposed to its existence) are very limited. A contract for the sale of an old master which subsequently turns out to be a modern copy is mentioned by the courts as an example of a mistake that would not render the contract void. Similarly, if a violin turns out to be a modern replica rather than an old Italian violin, this is a mistake as to the quality of the subject matter that would not render the contract void.

Question 13

At trial, a witness called on behalf of the claimant gives evidence that contradicts evidence previously given in their signed witness statement. This evidence seriously undermines the claimant’s case.

How should trial counsel for the claimant proceed?

Answer 13

Ask the judge to declare the witness a ‘hostile’ witness so that counsel can cross-examine the witness to prove they made an inconsistent statement in the past.

The best option is for the court to declare the witness a ‘hostile’ witness. If the judge is happy to do so, this will enable the barrister to cross-examine the witness on the facts of the case.

Question 14

Three friends set up a partnership 10 years ago. On 1 April, one partner retires and is replaced by a new partner. The partnership notified existing creditors of the change on 31 March, and a notice was published in the London Gazette on 6 April.

The partnership entered into two contracts to buy goods on 2 April, one with an existing supplier and one with a new supplier.

Which of the following best describes the liability of the new partner and the retiring partner?

Answer 14

The new partner will be liable for both debts and the retiring partner will be liable for the debt to the new supplier.

The new partner will be liable for both debts and the retiring partner will be liable for the debt to the new supplier. A partner is liable for all debts incurred whilst they were a partner. Here, the new partner came into the partnership on 1 April and both debts were incurred on 2 April. Therefore, the new partner is liable for both debts. A retiring partner is liable for debts incurred by the partnership after they retire until the correct notice is given: existing suppliers are entitled to actual notice of retirement, whereas a notice in the London Gazette is sufficient notice for anyone who has never dealt with the partnership whilst the retiring partner was a partner. Here, a notice was published in the London Gazette on 6 April, and the contract with the new supplier was made before that–on 2 April. So, the retiring partner is liable on that debt. On the other hand, the contract with the existing supplier was made the same day (2 April) and that supplier was given notice earlier, on 31 March. So, the retiring partner is not liable on that debt. It follows that the other choices are incorrect.

Question 15

The High Court has to interpret a regulation that has been preserved as direct EU legislation. In a judgment from 2021, the CJEU authoritatively provided a definition of a key part of the regulation. This part of the regulation is relevant to the case before the High Court.

Which of the following best explains how the High Court should approach the CJEU judgment?

Answer 15

The High Court may follow the CJEU judgment even though the regulation is retained EU law.

Question 16

A manufacturer produces furniture which is sold to retailers in kit form, for assembly by them before sale to the ultimate purchaser. A retailer assembles one of the desks and sells it to a customer. The customer runs a small business and places the desk in his office at work. The first time the customer uses the desk, it collapses. No one is hurt but the customer’s office computer, used for his business records, is smashed. The evidence shows that the desk collapsed because of a manufacturing defect which the retailer had failed to notice when assembling it. The retailer has now gone out of business, so the customer seeks a remedy from the manufacturer.

In relation to a claim by the customer against the manufacturer for damage to the computer, which of the following statements best describes whether the manufacturer will be liable to the customer?

Answer 16

The manufacturer will not likely be liable to the customer because the retailer had the opportunity to examine the product during assembly prior to sale.

The manufacturer will not likely be liable to the customer. The customer would be unable to pursue a successful claim in the tort of negligence because the manufacturer is unlikely to owe them a duty of care. A manufacturer does owe a duty of care to the end consumer, provided the product was put into circulation in the form in which it was intended to reach the end consumer with no reasonable probability of an intermediate examination. However, on the facts, the product was subject to an intermediate examination when it was assembled by the retailer. The customer would also be unable to pursue a successful claim under the Consumer Protection Act 1987 (‘CPA’). The CPA does not cover damage to business property (the computer), nor does it cover damage to the defective product itself (the desk).

Question 17

Four friends want to open a hobby supply business. They each plan to contribute £12,000. They each also plan to work full time in the business, and each would like an equal say in its management, though they would like to run the business with as little formality as possible. Although none of the friends is wealthy, they strongly would prefer not risking any personal assets beyond their contributions. Finally, they would prefer to not pay corporation tax.

Which of the following business mediums would best suit the friends?

Answer 17

A limited liability partnership.

The friends should form a limited liability partnership (LLP). An LLP is run like a partnership, but it is treated as an entity apart from the members. Therefore, the members may fully participate in management, but they are not liable for debts of the LLP beyond their contributions. Despite being an entity apart from the members, an LLP is taxed like a partnership, meaning it does not pay corporation tax; rather, each member pays income tax on their share of profits.

Why the answer wouldn’t be limited partnership:

Limited partnership is not a good choice because in a limited partnership, at least one partner (the general partner) is personally liable for the partnership’s debts. The liability of the members in the case of a private company limited by shares, a public limited company, and a limited liability partnership is limited to their capital contribution

Question 18

In a medical negligence claim, the parties have disclosed reports from their respective experts. The experts disagree on a number of matters in their reports and are required to hold a joint discussion regarding their conclusions.

Which of the following best describes the conduct of the joint discussion between the experts?

Answer 18

Only the experts will attend. They will identify the issues between them, try to agree where possible, and file a joint statement.

Typically, only the experts will attend the meeting. The court requires the experts to try to agree where possible and, where not possible, to set out clearly the areas of disagreement with reasons why. A joint statement is required.

Question 19

A statute provides the following:

“For the protection of children and members of the public, no driver of a motor vehicle shall leave a child under age five alone and unattended in the vehicle”.

A mother parked her car at the market and left her five-year-old child in the car while she did her shopping. The child left the car and began riding on shopping carts in the parking lot. The child struck an elderly shopper with a cart, injuring her.

In a claim by the injured shopper against the mother of the child, which of the following statements best describes the outcome?

Answer 19

The claim is likely to succeed because the mother breached her duty of care to supervise her child.

The claim is likely to succeed because the mother breached her duty of care to supervise her child. While a defendant generally does not owe a duty to exercise control over a third party to prevent them from causing harm to the claimant, such a duty may arise when the defendant has control over the third party or has assumed responsibility for the third party’s actions. For example, a parent has control over their young child and has a duty to take reasonable care to prevent the child from causing harm to others. Here, the mother acted unreasonably by leaving her five-year-old child alone in her car while she went into the market to shop. Her breach of her duty of supervision was a cause of the harm suffered by the shopper, so the shopper’s claim is likely to succeed.

Question 20

A greengrocer in London has a contractual dispute with a banana supplier from Portsmouth. The parties have been negotiating through their solicitors, and each has nominated their solicitor to receive all communications and proceedings. After negotiations break down, the greengrocer wants to commence proceedings against the supplier.

Which of the following best states the legal position regarding service of the claim in this case?

Answer 20

The solicitors for the greengrocer must serve the proceedings upon the nominated solicitors, as that is the only valid method of service available under the facts.

Question 21

In 2019, the Scottish Parliament enacted the Renewable Energy Act 2019. In 2021, it emerged that the Act breaches retained EU law. In response, the Scottish Parliament held a non-legislative vote to state that it intends for the legislation to be valid.

Which of the following best explains the legal position?

Answer 21

The Act is invalid because it breaches retained EU law.
The Act is invalid because it breaches retained EU law. The European Union (Withdrawal) Act 2018 preserved the supremacy of EU law up until the end of the transition period. This means that if there is a conflict between retained EU law and legislation passed before the end of the transition period, the retained EU law will prevail. Because, here, the Scottish Parliament passed the Act in 2019, before the end of the transition period (in December 2020), the retained EU law will prevail.

The Act is invalid because it breaches retained EU law. The European Union (Withdrawal) Act 2018 preserved the supremacy of EU law up until the end of the transition period. This means that if there is a conflict between retained EU law and legislation passed before the end of the transition period, the retained EU law will prevail. Because, here, the Scottish Parliament passed the Act in 2019, before the end of the transition period (in December 2020), the retained EU law will prevail.

Question 22

A landowner had a swimming pool and a changing cabin constructed in her large garden. The pool was installed entirely within the confines of the landowner’s property. However, one corner of the changing cabin extended a very short distance onto a far corner of her neighbour’s land. At the time of the construction, neither the neighbour nor the landowner was aware that the changing cabin extended onto the neighbour’s property.

Which of the following statements best describes whether the neighbour will be successful in a claim for trespass?

Answer 22

The neighbour will be successful, because the changing cabin extends onto the neighbour’s land.

The neighbour will be successful. The presence of the cabin in the neighbour’s land amounts to trespass. Trespass to land is an unlawful direct interference with the claimant’s possession of land. The defendant’s actions must be intentional, but the defendant need not intend to trespass. So, a mistake in placing the cabin on the neighbour’s land would not excuse the landowner because the landowner intended that the cabin be constructed where it was

Question 23

Two trading companies are negotiating over the sale of a consignment of 200 tonnes of soya beans. The seller offers to sell the beans to the buyer at ‘a price to be agreed’. The buyer accepts the offer. The beans are delivered.

Can the seller claim payment for the beans?

Answer 23

Yes, there is a contract and the seller has a contractual entitlement to payment of a reasonable price.

If no price has been agreed and none can be determined from the dealings between the parties, the Sale of Goods Act 1979 obliges the buyer to pay a reasonable price. This has the effect of supplying the missing term, and it means that there can still be a valid contract for the sale of goods when no price has been agreed.

Question 24

Question
A woman entered a stationers and asked the price for printing a wedding invitation in accordance with a sample displayed in the shop’s window. The shop assistant quoted the woman a price for 100 invitations. The woman placed an order with the shop assistant and paid the named price in full. The next day, the shop assistant called the woman and said there had been a mistake as to the price: the invitations selected by the woman actually cost 20% more. The woman refused to pay any additional money. The shop assistant said nothing further. The shop delivered invitations to the woman on time, but in a different style, worth the same price as the woman paid. Because her wedding was quickly approaching, the woman reluctantly used the inferior invitations.

Will the woman’s claim against the stationer for damages for breach of contract succeed?

Answer 24

Yes, because the invitations the woman received were inferior to the ones she ordered.

The woman’s claim will succeed because the invitations she received were inferior to the product she contracted to purchase. An offer was made by the stationer when the shop assistant quoted the woman a price in response to her inquiry about purchasing the invitations. Price quotations may be considered as offers if given in response to a specific inquiry. The woman accepted the offer by placing her order. Thus, a contract was formed at that time between the woman and the stationer for the purchase of those particular invitations at the price quoted.

Question 25

An employee of a company providing financial advice has a clause in their contract of employment restricting them from working as a financial adviser within a radius of 50 miles around the company’s offices for six months after they leave their employment.

Which of the following statements best describes the status of this clause?

Answer 25

It is void for initial illegality unless it is reasonably necessary to protect the employer’s legitimate interests.

This is a restraint of trade clause, sometimes called a ‘restrictive covenant’. A restrictive covenant is void for illegality as a restraint of trade unless a court finds that it is reasonably necessary to protect the employer’s legitimate interests. The court will consider, amongst other things, the activities prohibited and the duration and geographical scope of the prohibition. (Note that financial advisers tend to work over a very broad geographical area, so a 50-mile radius is by no means unrealistic.) (A) is incorrect because as just indicated, there is no absolute right to impose a restraint of trade

Question 26

A landowner and his tenant, a farmer, entered into a written contract. It was customary in their industry for a landowner to give his tenants a seed and labour allowance to keep the land well maintained and suitable for growing crops. The contract between the landowner and the farmer expressly states that no sums are due to the farmer from the landowner.

The farmer has requested his seed and labour allowance from the landowner. Is he entitled to it?

Answer 26

No. The parties have expressly agreed that the landowner is not required to pay anything to the farmer under the contract.

Terms can be implied into contracts by custom and usage, but terms agreed expressly between the parties will override any such terms. Thus (A) (an answer suggesting the parole evidence rule) is the correct answer. (B) is incorrect as implied terms are one of the exceptions to the parol evidence rule.

Question 27

A craftsperson entered into a written agreement with a carpenter for the construction of a garden shed on the craftsperson’s property for her to use as a workshop. The contract provided that the carpenter would receive the contract price when the garden shed was fully completed. Halfway through construction, a piece of a defunct satellite re-entered the Earth’s atmosphere and a large chunk of it crashed directly into the partially constructed shed, causing a fire and destroying the shed.

What is the carpenter entitled to recover under the contract?

Answer 27

Nothing.

The carpenter will not be able to recover anything under the contract because he has not performed his duty. The requirement for complete performance was not discharged by frustration because construction has not been made impossible, but rather merely more costly. The carpenter can rebuild the shed. Thus, he is not entitled to any recovery.

Question 28

A man and a woman decide to open a clothing store together. They file all papers necessary to register the business as a limited liability partnership (LLP). Each contributes £20,000 to the business, and both sign a lease on behalf of the LLP on the premises they will use as a store. The man then signs a contract on behalf of the LLP to purchases racks to display merchandise, and the woman signs a contract on behalf of the LLP to purchase clothes for the business to sell.

Despite their best efforts, the man and woman close the store after one year because it is operating at a loss. After liquidating the assets of the business, £10,000 is left owing to the landlord, £4,000 is left owing on account of the racks, and £9,000 is left owing on account of the clothes that were purchased for the store.

Which of the following statements is correct regarding liability for the debts still owed?

Answer 28

Neither the man nor the woman can be held liable for any of the debts remaining.

Neither the man nor the woman can be held liable for any of the debts remaining. In a limited liability partnership (LLP), the members are not liable for the debts of the partnership. Here, the facts indicate that the man and the woman filed all papers necessary to form an LLP. The fact that they signed various contracts on behalf of the partnership does nothing to change the rule. As all the other choices suggest that the man or woman can be held liable for some or all the debts of the LLP, they are incorrect.

Question 29

A pedestrian was injured in an accident caused by the negligence of a driver. The pedestrian suffered a fractured skull because of her pre-existing brittle bone condition. A person not suffering from that condition would only have suffered bruising and headaches as a result of the accident. The pedestrian was taken to hospital for treatment but then acted entirely unreasonably and in complete disregard of medical advice and discharged herself from hospital. On the way home, the pedestrian collapsed as a result of her head injury and suffered a broken wrist in the fall. The driver denies liability for all of the pedestrian’s injuries.

In a claim by the pedestrian against the driver, which of the following statements best describes the likely outcome?

Answer 29

The pedestrian will recover damages for her fractured skull but not for her broken wrist, because her actions in discharging herself from hospital broke the chain of causation between the driver’s negligence and her broken wrist.

The pedestrian will recover some of her damages. The driver owed the pedestrian a duty of care and was in breach. On the causation of damage issue, the pedestrian will recover damages for her fractured skull because the ‘egg shell skull rule’ applies to this injury. However, she will not recover damages for her broken wrist because her actions in discharging herself from hospital broke the chain of causation between the driver’s negligence and her broken wrist. The claimant’s own actions can break the chain of causation where the claimant has acted entirely unreasonably, and this is the case on the facts.

Question 30

A carpenter agreed with a property developer to perform carpentry work on a property that the developer was contracted to renovate, at an agreed contract price of £2,000. The developer had a separate contract with the property owner to undertake the renovation work by an agreed date, with a penalty if the work was not completed in time. It became apparent to the developer that the carpenter was not going to finish the work on time, so the developer offered the carpenter an extra £500 to do so. After the work was completed (on time), the developer refused to pay the carpenter the additional sum offered.

Would the carpenter be successful in recovering the £500 if he took the developer to court?

Answer 30

Yes, the work being carried out on time meant the time penalty clause was not invoked, which would be sufficient consideration for the promise to pay £500.

The carpenter finishing his work on time conferred a practical benefit on the developer because the penalty was not invoked. This is sufficient consideration for the promise of the additional £500

Question 31

A woman enters into a contract with a driving school to provide her with driving lessons. The only express terms of the contract relate to the price and the duration of the lessons. The woman is injured in an accident during a driving lesson. She wishes to make a claim on the driving school’s insurance, but she learns that the driving school does not have the insurance that it was required by law to have.

Will the woman be able to recover damages from the driving school under the contract?

Answer 31

Yes, because the courts will imply a term into the contract that the driving school is required to have insurance because it is necessary to make the contract work.

The courts will imply a term into a contract if the term is necessary to make the contract work as intended (sometimes referred to as the ‘business efficacy test’). Here, possession of the necessary insurance is essential for the lessons to take place, so a term requiring the driving school to take out that insurance is likely to be implied. Since the driving school did not take out such insurance, the woman may sue the school for breach of contract.

Question 32

The solicitor for the defendant has been struggling to locate a witness with whom the solicitor has spoken previously. The witness has not provided a signed statement, but the solicitor believes that, if the witness can be located and called to court to give evidence, their testimony would be helpful to the defendant’s case. The solicitor is unsure whether they will be able to obtain a signed statement from the witness before the date set in the directions order for the exchange of witness statements, as that date is just a couple of days away.

What are the most appropriate steps the solicitor can take with a view to getting the witness’s testimony before the court?

Answer 32

The defendant’s solicitor should seek permission to serve a witness summary, briefly summarising the evidence that the witness would give if called.

The solicitor should seek permission to serve a witness summary. At trial, the court will place such weight on this evidence as it feels appropriate in the circumstances.