Hard questions sqe

Question 1

Trustee stole money from 2 trusts, what order will they be able to recover?

T Remedies against trustees - proprietary claims

Answer 1

Trustee money goes first then

Withdrawals are decided first out basis (Clayton’s Case)- which ever trust money was taken first gets dissipated first. (and able to claim whatever was bought first)
But in Barlow Clowes- court may disapply for a more proportionate division of the balance.

Question 2

Consideration (and variation)- when can you use Promisory estoppel

Answer 2

Gen rule- part payment is not good consideration
exception in High Trees- 5 elements: clear promise to supend or waive, promisee change position and rely on promise, need not be detrimental reliance
inequitable for the promisor ro go back on the promise
Promissory estoppel is a shield not a sword.

Question 3

Test to determine if self defence reasonable

Criminal defences

Answer 3

a) defendants genuine belief of the circumstances- subjective. cannot reply on vol. intox for reason of belief, or if it caused the belief.
**Cannot **reply on psychatriac condition for belief - R v Martin 2001

b) nature and degree of the forse in those pereived circumstance- objective

Question 4

HR- porportionality test

Answer 4

* Bank Mellat v HM Treasury sets out a four part test for proportionality:

Is the objective important enough to justify limiting a fundamental right?

Is the measure/ restriction rationally connected to the objective?

Could a less intrusive measure be
used?

Has a fair balance been struck between the rights of the individual and the interests of the community?

Question 5

Preaction steps for service out of jurisdiction:

Answer 5

need court permission to apply.
need to include grounds relying on to use english courts

Exception for permission where contract contains English jurisdiction clause.
Permission not required if doing service within England

Question 6

aspects of arbitration

Answer 6

Pros: Private and confidential
Binding on parties
3rd party with expertise on area, solutions more practical than court

cons: some remedies not available
binding with limited rights of appeal
unlikely to be cheap- pay arbitration experts

Question 7

Appeal Process

Answer 7

Have to request permission to appeal, no right to appeal.
Ground: real prospect of success, or compelling reasons like the question of law/general public policy at stake.

21 days to appeal against county or high court
If denied by lower court, it can go to court of appeal but needs a real prospect success+ law/pub policy and must raise an important point of principle or practice.

Question 8

Limitation periods
Tort gen, personal

Contract, deed

Fraud

Answer 8

Tort:
** General:** 6 years s.2 LA, can be overridden- starts where financial worse off from breach

Personal Injuries- 3 year {runs from the date on which the cause of action accrued; or the date, if later, of the claimant’s knowledge (knowledge of the needed facts to bring a claim) }
**Contract: ** (6 years S 5. LA 1980)- starts soon as broken. If contract by deed then 12 years
Fraud, concealment or mistake S 32. LA- 6 years from the time the claimant knew of the fraud, concealment or mistake.

Question 9

steps to revise costs budget

Answer 9

1. budget variation summary sheet must first be submitted to the other party for agreement.
2. The court will then decide whether to approve, vary or disapprove the revision

Question 10

Dates that only court can adjust

Answer 10

Pre-trial reviews
Return of listing questionnaires

Trial dates

Trial periods

Case management conferences

Question 11

Dates that D and C can agree to adjust

Answer 11

std disclosure

Question 12

conseq of not accept part 36 offer

Question 13

order of proceedings in a court matter at court

Answer 13

Preliminary issues, Examination in chief, cross examination and re-examination of the claimant and its witnesses, the same process for the defendant and its witnesses, closing speeches, the judgment.

Question 14

Omissions and Positive Action in Negligence

Gen rule
Exceptions:

Answer 14

Rule: There’s generally no duty of care for omissions (failures to act). This means individuals are typically not liable for failing to prevent harm to others, even if foreseeable

Exceptions:

1. Duty Not to Make a Situation Worse: If you voluntarily choose to intervene
2. Special Relationships of Control: A duty to take positive action to prevent harm arises when a special relationship of control exists over another person or object.
   eg. employer- employee, school-children, parents-children, instructor-pupil

Question 15

Goal of Damages fro Breach of Contract

Answer 15

To compensate the innocent party for losses suffered due to the breach. This means aiming to put them in the financial position they would have been if the contract was performed correctly.
Its based on the actual losses flowing directly from the breach.
Calculation: (AC-HC)= Claim amount
The actual cost incurred by the innocent party to achieve the contract’s objective because of the breach. (AC)
-
The cost they would have incurred had the contract been fulfilled as agreed. (HC)

eg contract for 10k, paid 2000 upfront, breach, cost of 12000k to finish. claim for (AC actual- HC)- (14000- 10000)= 4000