FLK2 Part 2 Flashcards
Question
There has been an increase in the use of a new synthetic drug, which, although lawful, is extremely harmful. The government has decided to take action, and is preparing to introduce legislation into Parliament which would ban the drug. However, the government wishes to go further and make it a criminal offence to have sold or supplied the drug before it was made illegal. A government lawyer has pointed out that this would contravene an absolute right under the ECHR-Article 5, which prohibits retrospective criminal offences.
How should the government lawyer best explain absolute rights as provided for under the ECHR?
Rights that cannot be limited or qualified by the state under any circumstances(A) Absolute rights are rights that cannot be limited or qualified by the state under any circumstances. (B) is incorrect because the state has no ability to restrict absolute rights. (C) is incorrect because it refers to limited rights. (D) and (E) are incorrect because the courts cannot ‘approve’ a breach of an absolute right.QUESTION ID: CNL13
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?
ResponsesPress Enter or Space to submit the answer
(E) The High Court may follow the CJEU judgment even though the regulation is retained EU law. Generally, the UK courts are not bound by any judgments made by the CJEU after the end of the transition period (that is, December 2020), even if those decisions relate to retained EU law. Rather, the courts may ‘have regard’ for those decisions (that is, treat them as persuasive precedent). Thus, the High Court may follow the CJEU judgment because it was issued after the transition period, despite the fact that the regulation has been preserved as direct EU legislation, a type of retained EU law. (A) is incorrect because the High Court cannot make a reference to the Supreme Court in this way. (B) is incorrect because the CJEU judgment is not part of retained domestic case law. It is not a decision from the domestic courts, and it was handed down after the end of the transition period. (C) is incorrect because the CJEU judgment does not form part of retained EU case law. As mentioned, it was handed down after the end of the transition period. (C) is also incorrect because it erroneously suggests that the High Court need not follow retained EU case law. (D) is incorrect because that choice best explains the position if the CJEU judgment was issued before the end of the transition period.
Three friends established a dog walking business as a partnership. They agreed to share all profits in the ratio in which they had contributed capital: Partner 1 £10,000; Partner 2 £8,000; Partner 3 £2,000.
This year the business made a profit of £90,000.
How will the profit be shared?
C) The partners agreed to share profits in the same proportion that they contributed capital. In total the partners contributed £20,000 capital, so the profits are shared:Partner 1: £10,000/£20,000 = one-half of all profits
Partner 2: £8,000/£20,000 = 2/5 of all profits
Partner 3: £2,000/£20,000 = 1/10 of all profits
If the partnership has profits of £90,000, then Partner 1 receives half (£45,000), Partner 2 receives 2/5 (£36,000), and Partner 3 receives 1/10 (£9,000). (C) is the only choice that reflects one of these figures.
A specified sum claim has a total value of £80,000 but the defendant has admitted liability and has already made an interim payment of £20,000, paid to settle a specific ring-fenced element of the claim in its entirety.
Which of the following best indicates the claim value which the claimant should state on the claim form?
£60,000.(B) In a debt claim (that is, a claim for a specified sum), the claim value should reflect the amount of the claim in dispute. An interim payment has been made of £20,000. The amount remaining in dispute in £60,000. This should be the amount quoted on the claim form as representing the claim value. (A) is incorrect because £80,000 includes the interim payment which has already been made. The defendant did not express the payment to be without prejudice and they intended to settle the specific aspect of the claim in its entirety. Therefore, this sum is no longer in dispute and should not be included in the disputed amount. (C) is incorrect because the accrued interest appears separately and independently, so it should not be included in the statement of value. Also £80,000 includes the interim payment. (D) is incorrect because costs are separately and specifically identified on the claim form. Therefore, costs should not be included when calculating the statement of value. (E) is incorrect because although £60,000 is the correct value as explained above, the claimant should not add the interest to it for the purpose of the statement of value.
Parties enter a contract for the sale of stocks and shares of a company. The Statute of Frauds of 1677 provides that a contract for the sale of goods, wares, and merchandise for £10 or more must be evidenced by a signed writing.
Which of the following would be most appropriate rule of language for determining whether the contract for the stock must be evidenced by a writing?
Expressio unius est exclusio alterius.(A) Under this legal maxim, if one or more things of a class are expressly mentioned in a statute, the things not mentioned are excluded. (B) is incorrect because noscitur a sociis simply means that words are interpreted in the context of the words that surround it. Since the word stock or share is not within the Statute of Frauds provision this is not helpful here. (C) is incorrect because in pari materia is a rule of language that considers other statutes on the same subject to interpret the statute in question. Since we have no other statute here to help, this rule is not helpful here. (D) in incorrect. Ejusdem generis is not helpful here as it is used to interpret the meaning of a general word when more specific words follow it. Goods, wares, and merchandise all seem a bit general and so do not help here. (E) The literal rule is incorrect because it is a rule of interpretation rather than one of language.QUESTION ID: ELS004
QUESTION ID: ELS004
Question
A woman was part of a large crowd watching an air display. Suddenly two of the planes collided and crashed in flames. Both pilots were killed. There was no danger to the spectators as they were well away from the site of the crash, but the woman was extremely shocked by what she saw and began to suffer from post-traumatic stress disorder (‘PTSD’) as a result. Evidence shows that the crash was caused by the negligence of the display organiser.
In an action by the woman against the display organiser to recover damages for her PTSD, which of the following best states the likely outcome?
ResponsesPress Enter or Space to submit the answer
The woman is not likely to be successful because she did not know personally the pilots who were victims of the crash.(D) The woman is not likely to be successful. For a successful claim in the tort of negligence, the woman must show that the organiser owed her a duty of care. Under the circumstances here, she will not be able to do so. The woman has suffered psychiatric harm without any physical impact. She was not in the area of danger, so she is a secondary victim. No duty of care is owed to a secondary victim unless she can show that: (1) she suffered from a medically recognised psychiatric condition; (2) psychiatric harm was foreseeable in a person of ordinary fortitude; (3) she was present at the accident or its immediate aftermath; (4) she witnessed the events with her own unaided senses; and (5) she had close ties of love and affection with the immediate victim. On the facts, the woman satisfies all of these requirements except the last one. She did not know personally the pilots who were the victims of the attack, so no duty of care was owed to her in respect of her psychiatric harm. (A) is not correct because the statement is too broad. It is true that in some circumstances no duty of care is owed in respect of psychiatric harm caused without physical impact. However, it is not correct to say that psychiatric harm is never recoverable. (B) is not correct. Under the circumstances, the organiser did not owe the woman a duty of care, as discussed above. (C) is not correct because it does not state the correct reason why the woman is not likely to be successful. The claim is not likely to be successful because she did not know the victims. (E) is not correct. It is true that, where the claimant is a secondary victim, psychiatric harm must be reasonably foreseeable. However, this is not the only requirement for a duty to arise; all of the requirements discussed above must be satisfied.QUESTION ID: TRT142
A builder built a house for a homeowner. The builder finished the house on 20 August 2004, and the homeowner immediately moved in.
On 25 September 2020, the homeowner discovered that the foundation to the house had a flaw due to faulty construction of the home which could not have been discovered by an inspection. The homeowner wants to initiate a claim against the builder, but they are concerned about the length of time that has passed since the house was built. Nonetheless, he consults a solicitor on 27 September 2020.
If the homeowner were to initiate a claim against the builder, would the claim be timely?
ResponsesPress Enter or Space to submit the answer
The homeowner is out of time because the limitation period expired on 20 August 2019, 15 years after the house was finished.(E) The Latent Damage Act 1986 applies to this case. That Act provides that a claim can be brought within six years of the date of accrual or three years from the earliest date on which the claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence (the starting date). However, there also is a longstop provision of 15 years. That is the latest date a claim may be brought no matter when the negligence is discovered. Here, that date is 20 August 2019. So, the homeowner is out of time earlier because the longstop period has expired. (A) is incorrect. A claimant may bring an action six years from accrual, which begins when the building was delivered to the claimant, not six years from when the defect was discovered. The ‘discovery’ part of the Latent Damage Act is three years. (B) is incorrect because it does not take into account the longstop provision of the Act. (C) is incorrect because the longstop period is 15 years, not 20. (D) is incorrect because it does not take the possibility of the limitations being measured by discovery into account.QUESTION ID: DIS149
A mother is walking along a street with her son aged 5. She does not hold his hand nor exercise any other restraint. Suddenly and without warning, he runs into the road in front of a van, being driven carefully and within the speed limit. The van driver brakes very hard and avoids hitting the child. However, the driver suffers a whiplash injury to his neck as a result.
In an action by the van driver against the mother in the tort of negligence, which of the following best states the likely outcome?
The mother is liable to the van driver because she should have supervised her son more carefully.(D) The mother is liable to the van driver. The mother has a relationship of control over her young child. In these circumstances, she does have a duty to take reasonable care to prevent him from causing harm to the van driver. She has breached this duty by failing to take reasonable care to supervise the child, and her breach has caused the damage. (A) is not correct because the mother had a duty to take reasonable care to prevent the child from causing harm, as explained above. (B) is not correct because it does not explain correctly why the mother is likely to be liable. The mother is not liable because the child was negligent. She is liable for her own negligence – as explained above. (C) is not correct. It may be that the child himself was not negligent. However, the mother herself was negligent in failing to supervise. (E) is not correct. It is true that, in general, a duty of care is not owed in respect of an omission to act. However, the mother has a relationship of control over the child so, as an exception to the general rule, she does owe a duty to take reasonable care to prevent him from causing harm to others.QUESTION ID: TRT028
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?
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.(B) 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). (A) is not correct. The CPA applies where damage is caused by a defect in a product, but it is not applicable on these facts, as discussed above. (C) is not correct. It is true that a court may be prepared to infer a failure to take reasonable care from the existence of a defect in a product. Where a duty of care is owed, such inference could help to establish breach. However, on the facts, no duty of care is likely to be owed by this manufacturer to this customer, as explained above. (D) is not correct. The status of the retailer as a defendant does not affect the liability of the manufacturer. (E) is not correct. The product was purchased by the customer from the retailer. There was no contract between the customer and the manufacturer.QUESTION ID: TRT103
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?
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. - not selected, this is the correct answer
(C) 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. (A) is not correct. For a successful claim for breach of statutory duty, the claimant must show that the statute was designed to prevent the type of harm that the claimant suffered. Here, the statute appears to be intended to protect children from the dangers of being left alone and members of the public near the vehicle if the child were somehow to put it into gear. However, it does not appear to be intended to prevent a child from harming others by leaving the car and riding on shopping carts. So, even though the mother breached the duty of care imposed by the statute, the shopper’s harm does not appear to be of a kind which the statute was intended to prevent. (B) is not correct. It is true that the harm suffered by the shopper was not the kind which the statute was intended to protect. However, as discussed above, the claim is likely to succeed because the mother breached her general duty of care to supervise her child. (D) is not correct. Parents ordinarily are not vicariously liable for the torts committed by their children. They may be directly liable, however, for failure to supervise, as discussed above. (E) is not correct. A statute may give rise to a civil claim even where it does not state whether a breach of the duty imposed would give rise to such claim.QUESTION ID: TRT110
The defendant was the occupier of a small workshop employing three staff. Access to the workshop was via a lift from the ground floor to the first floor. The lift was controlled from inside the workshop on the first floor. A factory inspector needed to examine the lift shaft. The staff foreman agreed to turn the lift off until the inspection was complete. As the inspector was inside the lift shaft carrying out the inspection the lift suddenly descended, causing him a severe injury. Evidence at trial indicated that the staff foreman had turned the lift off as he agreed to do. The inspector’s expert testified that there was nothing wrong with the lift that would cause it to malfunction and operate when it was turned off.
Which of the following statements best explains whether the factory inspector is likely to have a successful claim against the defendant in respect of his injury?
The inspector may succeed because the court may be prepared to infer that a breach of duty must have occurred.(B) The inspector may succeed because the doctrine of res ipsa loquitur (‘the thing speaks for itself’) may apply. For res ipsa loquitur to apply three conditions must be satisfied. There must be an absence of explanation for how the accident occurred. The thing which caused the accident must have been under the control of the defendant. The accident must be such as would not normally happen if proper care had been taken. Each of these is satisfied on the facts, so the doctrine may apply to help the inspector establish a breach of the duty owed to him. (A) therefore, is not correct. (C) is not correct. The defendant is the employer of the three staff in the workshop. If one of the staff carelessly turned the lift back on, it is likely that they committed the tort of negligence against the inspector and it is likely that they were acting in the course of their employment. Therefore, the defendant employer would be vicariously liable. (D) is not correct. Even if a member of the staff acted of their own accord, the employer would be vicariously liable, as stated in (C). (E) is not correct. For the defence of voluntary assumption of risk to apply, the claimant must have had full knowledge of the risk and freely and voluntarily assumed the risk. On the facts, these requirements are not satisfied.
A manufacturing company owns a factory that produces stainless steel. The factory obtains its electricity by a direct cable from a power station. When the factory was built many years ago, there were no houses nearby. More recently, a large amount of residential housing has been built around the factory. The factory undergoes maintenance once a month and the electricity to the factory is shut down for safety purposes.
Occasionally, putting the factory’s electricity back online triggers a fault at the power station and the area served by the station suffers a temporary blackout. The manufacturer did investigate whether it would be possible to avoid having to cut off the factory’s electricity during maintenance, but found that this was not possible, and the blackouts continued.
In the past year, there have been six blackouts caused by maintenance at the factory, and all occurred between the hours of midnight and 3 a.m. when the factory’s maintenance is usually completed. Nearby residents have now brought an action for nuisance against the manufacturer, objecting to the presence of the factory in a residential area.
Which of the following statements would be the manufacturer’s best argument for avoiding liability in nuisance?
The blackouts are only occasional and at night.(D) The manufacturer’s best argument is that the blackouts only occur occasionally at night. Nuisance is an unlawful interference with the claimant’s use and enjoyment of land. To be unlawful, the interference must be substantial and unreasonable. One factor in assessing reasonableness is the intensity and duration of the interference. On the facts, blackouts that occur occasionally (six times in the course of one year) and at night may very well not be a substantial and unreasonable interference. (A) is not correct. The question of duty of care is relevant to a claim in the tort of negligence, but here the claim is in the tort of nuisance. Liability in private nuisance does not depend on establishing that a duty of care was owed. Liability in private nuisance is based on unlawful interference with land, and intangible damage such as interference by a blackout is actionable. (B) is not correct. Where the interference is with comfort and convenience, such as having electrical power in your home, the character of the neighbourhood is relevant in assessing whether the interference is unreasonable. (C) is not correct. If the interference remains substantial and unreasonable, despite the exercise of reasonable care, then it amounts to a nuisance for which the defendant can be liable. (E) is not correct. It is not a defence to a claim in nuisance that the claimant came to the nuisance.QUESTION ID: TRT012
A manufacturer of musical instruments received an order for a custom made guitar, and entered into a contract with the customer to supply the guitar for a total contract price of £750, payment on delivery. After the guitar had been delivered, the customer decided that they wanted to learn to play the piano rather than the guitar, and notified the manufacturer that they no longer required the guitar and would not be paying for it. The manufacturer terminated the contract and took the guitar back. They had already spent £250 making the guitar so immediately commenced proceedings against the customer for breach of contract. Before the case reached court, the manufacturer sold the guitar to a third party for £650.
What damages would the court be likely to award in this scenario?
The manufacturer would receive £100 damages to reflect the difference between the contract price and the price they received from the third party.(E) Damages are intended to compensate the innocent party by putting them back into the position they would have been in had the contract been properly performed. In this scenario, putting the manufacturer back into the position they would have been in had the contract been performed would mean damages of £750. However, damages are intended to be compensatory, and the manufacturer mitigated their loss by selling the guitar to a third party, so they are only £100 short of the full contract price and therefore this would be the amount that the court would award. To award the full contract price would result in a windfall for the manufacturer and the full damages award would therefore be seen as punitive, which is contrary to civil law. Therefore (E) is the correct answer. (A) is incorrect as the manufacturer has clearly suffered a loss as they have not received the full £750 contract price, even having mitigated their loss by selling the guitar to a third party. (B) is incorrect because the manufacturer has mitigated their loss to the amount of £650, therefore the only compensation they are entitled to receive is the difference between £650 and the contract price, that is, £100. (C) is incorrect because nominal damages will be awarded only where a claimant has not suffered any loss, and as we have already seen, the manufacturer has suffered a loss of £100. (D) is incorrect because the reliance interest measure of damages is not relevant here. If the manufacturer had not been able to mitigate their loss, they would have claimed the full £750 contract price from the customer to reflect their performance interest, rather than the £250 they had expended in making the guitar. The reliance interest measure of damages is more appropriate where it is unclear what financial position the innocent party would have been in had the contract been properly performed. In this scenario it is clear that the manufacturer would have been paid £750 if the customer had not breached the contract
A company has the following income and gains for its most recent tax year ended 31 March .
- £210,000 trade profit
- Interest of £15,000
- Dividends of £10,000
- Capital gain of £10,000
It also has a capital loss brought forward from the prior tax year of £30,000.
What are the company’s total taxable profits?
£225,000(A) £225,000. Companies pay tax on taxable total profits, which is the sum of income from all sources (except dividends-companies usually don’t owe taxes on dividends) and net gains (gains less capital losses). Capital losses can be brought forward from previous years to offset capital gains, but they cannot be used to offset any other type of income. If capital losses exceed capital gains, the excess can be carried forward to offset capital gains in future years. Thus, the previous year’s capital loss can be used to offset the current year’s £10,000 capital gain and the remaining £20,000 of capital loss will be carried into the future. So, that leaves the company’s trade profits of £210,000 and its interest income of £15,000 to be taxed. £210,000 + £15,000 = £225,000.QUESTION ID: TAX120
A woman went to watch her daughter compete in a cycling race. She had a clear view and could see the competitors coming down the road towards the finishing line, recognising her daughter from her distinctive clothing. Suddenly, the gantry over the finish line collapsed onto the group of cyclists. The mother saw it collapse onto her daughter and has begun to suffer from post-traumatic stress disorder (‘PTSD’) as a result. Evidence shows that the gantry collapsed because of the negligence of the company which erected it.
In an action by the mother against the company to recover damages for her PTSD, which of the following best states the likely outcome?
The mother is likely to be successful because the company did owe her a duty of care in respect of her psychiatric harm.(A) The mother is likely to be successful. The mother will pursue her claim in the tort of negligence and needs to show that the defendant owed her a duty of care. She has suffered psychiatric harm without physical impact, but she was not in the area of danger, so she is a secondary victim. For a duty of care to be owed to a secondary victim she must show that psychiatric harm was foreseeable in a person of ordinary fortitude, that she was present at the accident (or its immediate aftermath) and witnessed the events with her own unaided senses, and that she has close ties of love and affection with the immediate victim. On the facts, all of these conditions are satisfied. She must also show that the harm amounted to a medically recognised psychiatric condition, which is also satisfied. So, the mother was owed a duty of care. The facts show that the duty was breached and that the breach caused the mother’s damage. Therefore, the claim is likely to be successful. (B) is not correct. The mother is likely to have a successful claim for the reasons set out above. Also, the statement in this choice is too broad because there are circumstances in which a duty of care is owed in respect of psychiatric harm caused without physical impact, as discussed above. (C) is not correct. The mother is likely to have a successful claim for the reasons set out above. The fact that the mother was not in the area of danger means that she is not a primary victim. However, she is owed a duty of care as a secondary victim. (D) is not correct. The lack of any physical injury does not mean that no duty of care was owed, because the woman satisfies the requirements for a duty of care to be owed in respect of psychiatric harm suffered without physical impact, as explained above. (E) is not correct. It is true that the mother is likely to be successful, but this choice does not give the correct reason. While the woman has suffered psychiatric harm, that does not make her a primary victim. As discussed above, she is a secondary victim.QUESTION ID: TRT145
Question
A longstanding client of a firm of solicitors informs them that a relative has slipped on a wet patch in a supermarket and needs advice on what steps they can take to get compensation for their injury. The client wants to refer their relative to the firm and requests that the firm shares 10% of its fees with him.
Is the firm able to do this?
ResponsesPress Enter or Space to submit the answer
No, because this arrangement would result in the payment of a prohibited referral fee.(D) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) prohibits the payment or receipt of referral fees in claims for damages following personal injury or death. Because the client wants the firm to share its fees in exchange for the client’s referral of a personal injury matter, this arrangement would result in the payment of a prohibited referral fee. (A) is incorrect because a solicitor or firm generally may share their fees with any third party (even non-lawyers), but the arrangement here would result in the payment of a prohibited referral fee. (B) is incorrect because payments in exchange for a referral are generally permitted (with certain exceptions in personal injury matters or where the client is subject to criminal proceedings). (C) is incorrect. This choice states the general rule for permitted fee sharing arrangements, but this is a prohibited referral fee because it is a personal injury matter. (E) is incorrect because this is a prohibited referral fee, and the client’s consent will not solve the problem.QUESTION ID: ETH109
A retailer sells a tumble dryer to a consumer. The contract contains a clause excluding the retailer’s liability for breach of the statutory implied condition of satisfactory quality. The tumble dryer is poorly designed. As a result, it catches fire and the consumer is injured. The consumer sues the retailer. The court finds that the tumble dryer was negligently designed.
Can the retailer rely on the exclusion clause to avoid liability for the injury to the consumer?
No, because liability for breach of the statutory implied conditions cannot be excluded.(D) This is a consumer contract and so it is subject to the Consumer Rights Act 2015 (‘CRA’). Under the CRA, a trader cannot exclude, among other terms, statutory implied terms going to the quality or fitness of the goods. A negligently designed tumble dryer is not of satisfactory quality. Since the implied quality term could not be excluded, the trader (the retailer) would be liable for damages caused by the goods. (A) is incorrect because it is focusing on the wrong party. It is true that the CRA prohibits a trader from excluding liability for personal injury or death arising from the trader’s own negligence, but here the negligence was by the manufacturer (negligent design). The retailer’s liability is based on selling goods that are not of satisfactory quality rather than on any negligence by the retailer. (B) is incorrect because, as just indicated, the retailer is liable for selling a defective product even though the retailer was not negligent. (C) is incorrect because this exclusion is prohibited and so it is not open to the trader to show that the exclusion is fair. (E) is incorrect because the reasonableness test is imposed by the Unfair Contract Terms Act 1977 (‘UCTA’). The UCTA does not apply to consumer contracts. QUESTION ID: CTR132
Question
A solicitor is approached by a potential client with a personal injury claim. The client does not have any insurance to cover his legal fees and enquires whether the solicitor will accept the case on a contingency fee basis. The solicitor thinks that this will be a costly case to bring but one which is of potentially high value. She therefore proposes a damages based agreement with a success fee of 25% of the damages awarded.
Is the solicitor permitted to enter into a damages based agreement on the basis described?
ResponsesPress Enter or Space to submit the answer
Yes, because damages based agreements can be for 25% of the damages in personal injury cases.(E) The solicitor is permitted to enter into a damages based agreement for no more than 25% of the damages in personal injury cases. In a personal injury case, the legal costs payable under a damages based agreement cannot be more than 25% of the sum recoverable, excluding future losses. In non-personal injury cases, the sum payable can be no more than 50%. Here, the solicitor has proposed a success fee of 25% of the damages awarded in a personal injury case, which is permitted. (A) is incorrect because damages based agreements are available in personal injury cases. (B) is incorrect because, as explained above, the allowable success fee for personal injury claims is no more than 25% of the damages awarded. (C) is incorrect because, as explained above, there is a limit of 25% of damages awarded in personal injury cases and 50% in non-personal injury cases. (D) is incorrect because although the solicitor will consider the risk and reward when setting the success fee, the solicitor is still subject to the limitations on the success fee explained above
A trader is suing a supplier because the goods the supplier provided did not quite meet the description in the contract. The directions order in the case requires the parties to serve their disclosure list by 25 June. The defendant serves their list on 25 June, but the claimant has failed to do so. The defendant then makes an application to strike out the claim, which the court has listed for a hearing before the District Judge. Thereafter, the claimant makes an application for relief from sanctions. The trader hands a bundle of documents to the supplier, which the trader says represents its disclosable documents.
Which of the following orders will the court most likely make at the hearing?
The court is likely to make an ‘unless order’, requiring the claimant to serve its disclosure list within 14 days, failing which the court will strike out the claim.(C) The court likely will make an ‘unless order’. The defendant acted correctly in trying to force the issue by making an application. Courts will generally first issue an unless order before striking out a claim. Thus, although the defendant properly made an application to strike the claim for failure to disclose, because the claimant applied for relief from sanctions, the court is likely to grant a short period for the claimant to comply. If the claimant fails to comply within this timescale, the court will then strike out the claim. Therefore, (A) is incorrect. (B) is incorrect because formal disclosure is required, so the court will not permit the claimant to proceed without serving a formal disclosure list. (D) is incorrect because the court will make an appropriate order at this hearing. It would be a waste of court time to adjourn and bring the parties back to court in a month’s time. (E) is incorrect because the court will wish to actively case manage the claim and make an order which enforces compliance with the court directions and in default, strike out.QUESTION ID: DIS010
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?
Yes, there is a contract and the seller has a contractual entitlement to payment of a reasonable price.(D) 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. (A), (B), and (C) are incorrect because each suggests there is no contract. A provision for the price to be determined by a third party (such as an expert or an arbitrator) as suggested in (B) would have been another way of resolving the uncertainty, but it is not necessary. Similarly, a provision for the price to be determined unilaterally by one of the parties as suggested in (C) would have been another way of resolving the uncertainty, but it, too, was not necessary. (E) is incorrect. There is a contract here. A quantum valebat is a restitutionary remedy that applies if goods have been supplied when there was no entitlement to payment under the contract (for example, because partial performance of an entire contract has not been accepted), or if a contract has not been formed. QUESTION ID: CTR145
An engineering company engages a gardener to clear a patch of waste land behind its offices. The company has no expertise in gardening, so it takes care to select a well-qualified gardener and then leaves it entirely to him to determine how the work is to be carried out. The contract for the work states that the gardener is not engaged as an employee and that the company will not incur any liability for his actions. When carrying out the work, the gardener carelessly sprays very strong weed killer over the fence onto the premises of a next-door garden centre, where it causes extensive damage to plants in stock. The proprietor of the garden centre brings an action against the engineering company to recover the cost of the damaged plants.
In an action by the proprietor against the company, which of the following is correct?
The company is not vicariously liable for the negligence of the gardener because he was not an employee of the company, nor in a relationship ‘akin’ to employment.(A) The company is not vicariously liable. An employer is only vicariously liable for the torts of its employees or, under certain circumstances, persons who are in a relationship ‘akin’ to employment. The gardener does not satisfy either of these, so the company is not vicariously liable for his negligence. (B) is not correct. For a relationship ‘akin’ to employment to arise, the following must be satisfied: the tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant; the tortfeasor’s activity was part of the business activity of the defendant; and the defendant, by engaging the tortfeasor to carry on the activity, created the risk of the tort. In addition, there must be close connection between the relationship and the tort. On the facts, these requirements are not satisfied, so a relationship ‘akin’ to employment does not exist between the gardener and the company. (C) is not correct. It is true to say that the contractual label which the parties have attached to their relationship is not conclusive. However, on the facts, none of the tests for determining whether someone is an employee appear to be satisfied. The gardener’s work is not integrated into the business of the company (engineering), it does not exercise any control over his work (it has no expertise), and there are no other factors to suggest that the true nature of the relationship is that of employer-employee. (D) is not correct because it does not give the correct reason why the company is not vicariously liable. The company may owe a duty to take care in selecting a competent contractor which, on the facts, it has fulfilled. However, compliance with this duty would not protect the company from being vicariously liable. (The company is not vicariously liable, but for other reasons). (E) is not correct. The first requirement for an exclusion of liability is that it must have been brought to the attention of the claimant (the proprietor of the garden centre). This has not happened here because the contract containing the purported exclusion was made between the engineering company and the gardener.
