M V Flashcards

1
Q

A mother took her child to school to board a bus for a school trip. She left the child on the bus and went home. The bus then departed with the children on board and was involved in an accident caused by the negligence of the defendant. The mother received a telephone call at home notifying her that the child had been severely injured in the bus accident. The mother immediately collapsed from shock and is later diagnosed as suffering from a medically recognised psychiatric illness caused by shock.

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

The mother cannot recover damages for her psychiatric illness because she was not in the actual area of danger created by the defendant’s negligence.

The mother can recover damages for her psychiatric illness because it has been diagnosed as a medically recognised condition.

The mother cannot recover damages for her psychiatric illness because she did not witness the accident in which her child was injured.

The mother can recover damages for her psychiatric illness because she has close ties of love and affection with her child, who was the immediate victim of the defendant’s negligence.

The mother can recover damages for her psychiatric illness because it was preceded by her physical collapse.

A

(C) The mother cannot recover. The mother has suffered psychiatric harm without physical impact. She is a secondary victim of the defendant’s negligence. For a duty of care to be owed to a secondary victim who suffers a medically recognised condition caused by sudden shock, the following must all be satisfied: (1) it must be reasonably foreseeable that a person of normal fortitude would suffer a psychiatric illness; (2) the claimant must have close ties of love and affection to the immediate victim; (3) the claimant must have been present at the accident or its immediate aftermath; and (4) the claimant must have witnessed the accident with her own senses. On the facts, the mother was told about the accident on the telephone, she did not witness it herself, so she does not satisfy all of the criteria for a duty of care to be owed to her. (B) is not correct. A medically recognised psychiatric illness is necessary but is not sufficient, as explained above. (D) is not correct. Close ties of love and affection are necessary but are not sufficient, as explained above. (A) is not correct. The fact that the mother was not in the area of danger means that she could not recover as a primary victim. However, she is not seeking to recover damages for psychiatric harm caused by any danger to her but rather caused by her relationship to another person injured by the defendant’s negligence. She is a secondary victim but cannot recover because she did not satisfy all of the aspects for a duty of care to be owed to a secondary victim. (E) is not correct. The mother’s physical collapse was caused by shock. The special rules for duty of care (described above) apply to shock-induced physical conditions, such as the collapse, in the same way as they apply to psychiatric conditions caused by shock

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2
Q

A teenager purchased a motorbike from a retail shop. He rode it on an off-road track over very rough terrain. As he bounced over a rock he landed hard and the shock absorbers failed, causing him to crash and suffer serious injuries. The shop has since gone out of business, so he made a claim against the manufacturer. The teenager produced evidence showing that the shock absorbers were dangerously inadequate under off-road conditions. He also relied on advertisements showing pictures of the motorbike in an off-road setting. The manufacturer presented evidence that the teenager had received the owner’s instruction manual which warned that the bike was not suitable for off-road use.

In a claim by the teenager against the manufacturer under the Consumer Protection Act 1987, which of the following circumstances would NOT be relevant to the claim?

The fact that the retail shop where the teenager purchased the motorbike has gone out of business.

The expectations of consumers as to the safety of a motorbike.

The advertisements showing the motorbike in an off-road setting.

The warning in the owners’ instruction manual.

The fact that the shock absorbers were dangerously unsafe for off-road conditions.

A

A) The fact that the retail shop has gone out of business is not relevant to the claim. In a claim under the Consumer Protection Act 1987 (‘CPA’), the manufacturer of the motorbike would be a potential defendant as producer of the motorbike. In contrast, the supplier of the product (the retail shop) would be liable under the CPA in very limited circumstances – and even if it were also liable, liability is joint and several, so the teenager can seek recovery of the full amount of his damages from the manufacturer in any case. Therefore, whether the retail shop has gone out of business is not relevant to the teenager’s claim against the manufacturer. (B) is not correct. The expectations of consumers as to the safety of a motorbike are relevant. Liability under the CPA depends on showing that the product was defective, and a product is defective if its safety is not such as persons generally are entitled to expect. (C) is not correct. The advertisements showing the motorbike in an off-road setting are relevant to the issue of whether the product was defective. They are part of the manner in which the motorbike was marketed, and this is one of the factors in determining whether the safety of the product was such as persons generally are entitled to expect. (D) is not correct. The warning in the owners’ instruction manual is relevant to the issue of whether the product was defective. Instructions and warnings issued with the product are factors in determining whether the safety of the product was such as persons generally are entitled to expect. (E) is not correct. The fact that the shock absorbers were dangerously unsafe for off-road conditions is relevant because it supports the argument that the product was defective.

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3
Q

An investor and a sports club owned adjacent plots of land. The sports club was granted planning permission and constructed four tennis courts on its property. The courts were equipped with very bright lights for nighttime use. The courts were in constant use and remained open and illuminated by the lights until late every night. The investor then decided to use his plot of land to build a large dwelling house for himself. Once the house was built it became clear that the lights from the tennis courts interfered with the investor’s enjoyment of the house. He was obliged to install blackout curtains in all the bedrooms. There are no other houses in the vicinity so no one else is disturbed by the lights.

If the investor can establish that the interference from the lights is substantial and unreasonable, which of the following statements best describes the likely outcome if the investor makes a claim in nuisance against the sports club?

The investor will succeed because he has established the grounds for a private nuisance action.

The sports club will succeed in defending the claim because it obtained planning permission to build the tennis courts.

The investor will succeed because any degree of interference with a permitted use of his property is actionable as a nuisance.

The sports club will succeed in defending the claim because the tennis courts were built before the investor decided to build his house.

The investor will succeed because the glare from the lights constitutes a public nuisance for which he is suffering particular damage over and above the damage suffered by the public.

A

A) The investor will succeed in a private nuisance action. Nuisance is an unlawful interference with the claimant’s use and enjoyment of land. An interference is unlawful when it is substantial and unreasonable. Given that the investor has met this standard, he is likely to succeed. (B) is not correct because a grant of planning permission does not authorise a nuisance. (C) is not correct because the interference must exceed what is reasonable before it is actionable as a nuisance. (D) is not correct because it is not a defence to a claim in nuisance that the nuisance was already in existence before the claimant came to the nuisance. (E) is not correct. A public nuisance affects a class of the public. On the facts, no one other than the claimant is disturbed by the lights

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4
Q

Three sisters formed a limited liability partnership (‘LLP’). The eldest sister is the designated member. She also oversees day-to-day management of the LLP. Each sister contributed £200,000 upon formation of the LLP. After two years, the LLP is insolvent: its assets are £150,000 and its liabilities are £275,000. The sisters made no withdrawals from the business. The sister who is the designated member and one other sister each have a net worth in excess of £300,000. The other sister is insolvent.

What is the designated member’s maximum potential liability in the event the LLP is dissolved?

125,000
62,500
0
175,000
275,000
A

C) A limited liability partnership is a partnership that has a separate legal existence. The members are not liable for the debts of the LLP, and that includes the designated member. A designated member is simply the member appointed to perform certain administrative duties (such as to comply with filing requirements of Companies House). It does not matter that the LLP is insolvent or that one of the members is insolvent.

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5
Q

Three friends set up a partnership a number of years ago. The partnership agreement provides that the partnership shall continue so long as there are at least two partners. It also provides that a partner may retire on giving three months’ notice to the partnership, and that following the retirement, the remaining partners would have three months to decide whether to buy the retiring partner’s share; otherwise, the partnership will dissolve. There were no other terms in the partnership agreement. Following a dispute, two of the partners want to expel the third partner.

Which of the following statements is correct regarding expulsion of the partner?

In this partnership, a partner can be expelled by unanimous vote of the other partners.

In this partnership, because the partners have a right to withdraw on three months’ notice, a majority of the partners have a right to expel another partner.

In this partnership, a partner can be expelled if they are declared bankrupt.

In this partnership, a partner may not be expelled.

In this partnership, a majority of partners can apply to court for an order to expel a partner.

A

(D) Unless the partnership agreement provides for expulsion, partners do not have a right to expel other partners. The agreement here does not provide for expulsion and so the right to expel does not exist in this partnership. Therefore, all of the other choices are incorrect because they each provide that the partners have a right to expel.

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6
Q

A trading partnership has been in existence for five years. On 1 January 2021, one partner retires and a new partner joins the partnership. The partnership had already notified existing creditors that the retiring partner was no longer a partner as of 1 January and had also published notice of the retirement in the London Gazette. When calculating the value of the retiring partner’s share, existing debts were taken into account and the retiring partner has received an indemnity from the existing and new partners in respect of those debts.

Creditor 1 sold goods to the partnership on credit on 30 December 2020 and Creditor 2 sold goods to the partnership on credit on 2 January 2021.

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

The retiring partner will not be liable to either creditor. The new partner will be liable for both debts.

The retiring partner will not be liable to either creditor. The new partner will be liable to Creditor 2 only.

The retiring partner will be liable for both debts. The new partner will be liable to Creditor 2 only.

Both the retiring partner and the new partner will be liable for both debts.

The retiring partner will be liable to Creditor 1 only. The new partner will be liable to Creditor 2 only.

A

E) A retiring partner will always be liable for partnership debts incurred whilst they were a partner, so the retiring partner here will remain liable to Creditor 1. (Note that an indemnity is an agreement between the partners; such an agreement has no effect on the retiring partner’s direct liability to third parties unless the third party also agrees.) However, a retiring partner can avoid liability for debts incurred by the partnership after their retirement if they give notice of their retirement. The partner should give actual notice to people who have dealt with the partnership whilst the partner was a partner and should put a notice in the London Gazette to alert people who have never dealt with the partnership whilst the partner was a partner

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7
Q

Six friends decide to open a business. They are interested in forming a limited partnership because they have heard that this business medium will shield at least some of them from personal liability.

What combination of partners must their limited partnership have?

At least one general partner and two limited partners.
All general partners except only one limited partner.
At least one general partner and one limited partner.
All limited partners.
All general partners.

A

(C) A general partner has unlimited personal liability for partnership debts and is responsible for managing the partnership. A limited partner is not liable beyond their capital contribution and is not permitted to be involved in the management of the partnership. A limited partnership is required to have at least one general partner and at least one limited partner. The other options are therefore incorrect.

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8
Q

A landowner wishes to apply for first registration of his property. While preparing the necessary documents, the landowner discovers that he has lost the title deeds to the property.

What class of title is likely to be granted when the property is registered?

Freehold title.
Qualified title.
Possessory title.
Absolute title.
Leasehold title
A

C) On first registration, Her Majesty’s Land Registry (‘HMLR’) is likely to grant possessory title since the unregistered title deeds to the property have been lost and cannot be produced. Possessory title is the class of title which may be awarded by HMLR if the application for title is based on factual possession of the land rather than documentary evidence. (A) is incorrect because it is not a class of title. A freehold estate is one of the two legal estates in land in England and Wales. (B) is incorrect because qualified title is granted when a specified interest is excepted from the effect of registration and is not covered by the guarantee of title which would otherwise be available. This class of title is not relevant here and is, in any event, rarely granted in practice. (D) is incorrect because absolute title is the best form of title that can be granted by HMLR. Whilst it is theoretically possible to obtain a title absolute with an application relating to lost deeds, the evidence produced to HMLR would have to be extensive and it would be very rare to secure this form of title in these circumstances. (E) is incorrect because this is not a class of title. A leasehold estate is the other of the two legal estates in land in England and Wales

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9
Q

A buyer has agreed to purchase a property from sellers who co-own the beneficial interest as tenants in common. The buyer’s solicitor has advised the buyer to pay the purchase money to two or more trustees so that the interest of the beneficiaries will transfer from the land to the proceeds of sale.

What legal process does the above describe?’
Overriding.
Beneficial transfer.
Severance.
Overreaching.
Declaration of trust.
A

Overreaching

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10
Q

The title to Whiteacre is registered at Her Majesty’s Land Registry. There are three registered charges on the charges register: the first registered in August 2010, the second registered in January 2013, and the third registered in December 2015. All three charges are residential mortgages using standard mortgage deeds. The registered proprietor has stopped making payments to the first lender but has kept up his payments on the other two mortgages.

Which of the following best describes the position of the first lender?

It can take possession proceedings only if it provides notice to the second and third lenders and both decline to take possession proceedings themselves.

It can take possession proceedings and can retain the sale proceeds in their entirety to pay off its charge.

It can take possession proceedings but will have to discharge the mortgages in favour of the second and third lenders out of the sale proceeds before it can pay off its own mortgage.

It can take possession proceedings and repay its own charge out of the sale proceeds first and then must pass on the balance of the sale proceeds to the defaulting registered proprietor.

It can take possession proceedings and repay its own charge out of the sale proceeds first and then must apply any surplus to the other two lenders in the order of registration of the charges.

A

(E) The first lender can take possession proceedings and repay its own charge out of the sale proceeds first and then must apply any surplus to the other two lenders in the order of registration of the charges. When a legal mortgage is entered on the register of title, it will have priority over any interest whose priority is not protected when the mortgage is registered. Here, the mortgages have priority in order of their registration on the register of title. Since the first lender has first priority, it can sell the home, repay its own charge, and then must apply the surplus to the other charges. Any surplus remaining thereafter goes to the registered proprietor. (A) is incorrect because the first lender may take possession proceedings without notifying or allowing the other lenders to do so first. (B) is incorrect because although the first lender can pay itself first out of the sale proceeds due to the doctrine of priority of mortgages, any proceeds left over must be applied to the repayment of the subsequent charges in the order that they were registered. (C) is incorrect because, as explained above, the first lender ranks first in priority and can pay off its own mortgage first. If there are any sale proceeds left once the first lender has been paid off, this will be paid to the second lender, and next to the third lender. (D) is incorrect because any surplus once the first lender has discharged its own charge will go to paying off the second and third mortgages. The defaulting registered proprietor will only receive any funds if there is any money left over once all three charges and the costs of sale have been paid out of the proceeds.

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11
Q

A client is about to commence proceedings for divorce from his spouse. He does not hold a legal interest in the matrimonial home and the title to the home is unregistered.

Which of the following describes how the client’s interest in the matrimonial home should be protected?

As a restrictive covenant on the Land Charges Register.

As a Class F land charge on the Land Charges Register.

As an estate contract on the Land Charges Register.

As a caution against first registration.

As a puisne mortgage on the Land Charges Register.

A

(B) The client’s interest in the matrimonial home should be protected by a Class F land charge. A Class F land charge protects a non-owning spouse’s (or civil partner’s) statutory right of occupation of the matrimonial home under the Family Law Act 1996. (A) is incorrect because a Class D(ii) land charge is the form of protection for a restrictive covenant, which is not at issue here. (C) is incorrect because a Class C(iv) land charge is relevant to protecting an estate contract, which is not at issue here. (D) is incorrect because a caution against first registration is the step that an owner of an interest in unregistered land will take to be notified as and when an unregistered title is submitted for first registration. Though title here is unregistered, the Class F land charge, as explained above, is the correct form of protection for the matrimonial home. (E) is incorrect because a Class C(i) land charge is the land charge that is relevant to protecting a puisne mortgage.

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12
Q

A solicitor is acting for a company that is acquiring freehold premises. The company intends to run a business from the property. The solicitor’s investigation of the unregistered title reveals a covenant that states: “Not to use the property otherwise than as a residential dwelling”.
Which of the following best describes whether the company will be bound by this covenant?

If the company has actual notice of the covenant, the company will be bound by the covenant.

If the covenant is registered as a restrictive covenant land charge, the company will be bound by it.

If the covenant is registered as an equitable easement land charge, the company will be bound by it.

If the covenant is more than 20 years old, the company will not be bound by it.

If the party with the benefit of the covenant cannot be found, the company will not be bound by the covenant.

A

(B) If the covenant is registered as a D(ii) land charge (restrictive covenant), the company will be bound by it. In the unregistered system, a D(ii) land charge is used to register restrictive covenants. If the covenant is registered as a D(ii) land charge, this constitutes notice of the covenant and will bind a buyer of the land. If the covenant is not so registered, it will not be binding. (A) is incorrect because, as explained above, registration as a D(ii) land charge is what constitutes notice – merely knowing about the covenant is not sufficient notice and does not bind a buyer. (C) is incorrect because the relevant protection is a D(ii) land charge. A D(iii) land charge protects an equitable easement. (D) is incorrect because the age of the covenant is irrelevant as to whether it will be binding. The covenant must be registered as a D(ii) land charge to bind a buyer. (E) is incorrect because this is not a relevant consideration for this issue.

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13
Q

Five friends buy a property together, each contributing £50,000. Four of the friends are over 18. One is 17 and her contribution came from money she just inherited from her grandmother. When they buy the property, the friends make no agreement as to co-ownership.
Which of the following statements best describes how the legal estate will be held?

All five friends will hold the legal estate as joint tenants.

The first two friends named in the transfer deed will hold the legal estate as joint tenants on trust for all of them.

The four friends who are over 18 will hold the legal estate as tenants in common on trust for all of them.

The four friends who are over 18 will hold the legal estate as joint tenants on trust for all of them.

All five friends will hold the legal estate as tenants in common.

A

purchased by more than one person, under the Trusts of Land and Appointment Act 1996 (‘TLATA’), a trust of land automatically arises for the benefit of all of the buyers. Under TLATA, up to the first four buyers named in the transfer deed who are over age 18 will hold the legal estate as joint tenants on trust for all of them. The trust is limited to the first four because the legal estate cannot be held by more than four trustees. (A) is incorrect because, as explained above, the legal estate may be held by a maximum of four trustees. (B) is incorrect because, under TLATA and the circumstances here (five purchasers), the first four over age 18 will be held to hold as joint tenants and not the first two. (C) is incorrect because under TLATA, no more than four can hold the legal estate. Further, the legal estate must be held as a joint tenancy. (E) is incorrect because, as explained above, this is not what happens under TLATA and the legal estate must be held as a joint tenancy

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14
Q

A brother and sister buy a piece of land together. Title to the land is registered. They enter into a declaration of trust on completion declaring that if the land is sold, the brother is entitled to 20% of sale proceeds and the sister 80%.

How will the declaration of trust be reflected on the register of title?

A notice will appear on the Charges Register

A Form A restriction will appear on the Proprietorship Register.

A Form A restriction will appear on the Property Register.

It will not be reflected in any way on the register of title.

A Form B restriction will appear on the Proprietorship Register.

A

(B) The declaration of trust will be reflected on the register of title as a Form A restriction on the Proprietorship Register. A restriction is used to prevent any dealing with the land otherwise than in accordance with the terms of that restriction. Where property is owned as tenants in common, there will be a standard form of restriction (Form A) that appears in the Proprietorship Register. The Proprietorship Register indicates the current legal owners of the property. Here, the declaration of trust indicates the brother and sister hold the behind-the-scenes beneficial interest as tenants in common. Thus, there will be a Form A restriction on the Proprietorship Register to indicate the existence of their beneficial interests, though the detail of the contents of the declaration of trust will not appear on the register. (A) is incorrect because a notice is placed on the Charges Register to indicate any encumbrances which affect the land, such as covenants or mortgages, which are not relevant here. (C) is incorrect because, as explained above, the restriction appears on the Proprietorship Register, not the Property Register. (D) is incorrect because, as explained above, the declaration of trust will be reflected on the register of title as a Form A restriction. While the detail of the declaration of trust does not appear on the register, the restriction is the means of putting the world on notice that there is an agreement behind the scenes as to the beneficial ownership. (E) is incorrect because the appropriate restriction is a Form A, not Form B, restriction.

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15
Q

A landlord leased commercial premises to a tenant for five years. The tenant has not paid the rent due under the lease for six months. The landlord drafted the lease himself and did not include a forfeiture clause in the lease. The landlord now wants to bring the lease to an end as he has found someone else willing to take a tenancy of the premises.

Can the landlord bring an end to the lease?

Yes, because a forfeiture provision is implied into every lease.

No, because the landlord waived the implied right of forfeiture by drafting the lease himself.

No, because there is no forfeiture clause in the lease, but the landlord can sue for non-payment of rent.

Yes, because a covenant for quiet enjoyment will be implied into the lease and the landlord can use this provision to regain possession.

Yes, because the landlord is entitled to demand a surrender of the lease due to the non-payment of rent.

A

(C) The landlord cannot bring the lease to an end because there is no forfeiture clause, but he can take proceedings for non-payment of rent. Forfeiture is the right of the landlord to re-enter the premises and bring the lease to an early end due to default by the tenant. The forfeiture remedy will not be implied into a lease on the landlord’s behalf, so the lease must contain an express provision for forfeiture. (A) and (B) are incorrect because, as explained above, the forfeiture remedy will not be implied into the lease; the lease must contain an express provision. There is no such waiver of this right if the landlord drafts the lease himself. (D) is incorrect because a covenant for quiet enjoyment offers protection to the tenant, not the landlord. The tenant is entitled to damages if the landlord interferes with the tenant’s enjoyment of the premises. This is not a remedy available to the landlord. (E) is incorrect because the landlord is not entitled to demand a surrender. A surrender is a deed which brings a lease to an end.

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16
Q

A landlord and a tenant orally agreed to a lease of an apartment for a term of two years. At that time, they agreed to rent payments at the market rate. The lease did not include any other provision as to rent. The tenant immediately took possession and began paying rent. One month later, a major corporation opened an office building next door, and rents in the neighbourhood increased significantly. After the first year, the landlord notified the tenant that he was increasing the rent by 50%. The tenant refused to pay more than the original rent amount. The landlord declared the lease void and ordered the tenant to leave.

In an action to determine the rights of the parties, what will be the result?

The tenant may stay in the apartment but must pay the higher rent.

The tenant may stay in the apartment and may continue paying the original rent.

The landlord may remove the tenant immediately.

The landlord may remove the tenant one month after a notice of termination of the lease is received by the tenant.

The landlord may not remove the tenant but may sue the tenant for the higher rent amount.

A

(B) The tenant will prevail and may stay in the apartment and continue paying the original rent amount. Generally, a lease must be made by deed. However, a legal short lease for three years or less may be created in writing or orally without a deed if: (1) the tenant takes possession of the leased premises, and (2) the lease is at market price rent. Here, the tenant took possession immediately and the lease was at market price rent. Thus, the tenant has a valid lease for two years at the market price rate and cannot be removed or forced to pay the higher rate a year into the term. (A) is incorrect because a landlord cannot increase the rent due under a lease in the middle of the lease term unless the language of the lease provides for such an increase, which it did not here. (C) and (D) are incorrect because a landlord may not force a tenant to leave before the end of the term of a valid lease so long as the tenant satisfies the conditions of the lease. Here, the tenant has refused to pay the higher rent, but this is not a breach of the original conditions of the lease. (E) is incorrect because, as explained above, the landlord is not entitled to raise the rent on the tenant in the middle of the term and therefore cannot sue the tenant for the higher rent amount.

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17
Q

A landowner decides to sell part of his land to a farmer. The farmer is keen on the sale but expresses concern about rights of way. In particular, she wants to ensure that the parcel she buys has access to a pathway that crosses over the landowner’s land. For the sake of certainty, the landowner wants to enter into a deed before the sale which specifies the rights of access for the parcel to the pathway. He asks his solicitor to prepare this document.

Is the solicitor likely to draft the deed the landowner has requested?

Yes, because the rights must be created by deed or they will take effect in equity only.

No, because there will not be a dominant and servient tenement in separate ownership.

Yes, because the right is capable of forming the subject matter of an easement.

No, because the landowner can rely on implied easements in equity.

No, because the right does not benefit the landowner’s property .

A

(B) The rights cannot be created before the sale as there will not be a dominant and servient tenement in separate ownership. An easement is a right which exists over a piece of land (the servient tenement) which benefits a different piece of land (the dominant tenement). Here, there are not yet two different pieces of land. A person cannot give himself an easement over his own land. The part of the land forming the farmer’s parcel must be sold before an easement can be created. (A) is incorrect because, as explained above, the landowner has asked the solicitor to draft a document creating an easement before part of the property is sold, which is not possible. The solicitor can draw up a deed of easement after the land has been sold and divided. If a deed is not used, the grant will be ineffective at law but may be enforceable in equity. (C) is incorrect because while the right is capable of forming the subject matter of an easement after the sale, an easement cannot be created when the landowner still owns the whole property. (D) is incorrect because the landowner and farmer are seeking certainty and reliance on implied rights that may be granted in limited circumstances will not provide this. (E) is incorrect because whether the right benefits the landowner’s property is irrelevant. One of the characteristics of an easement is that it must benefit the dominant tenement, which would be the farmer’s parcel after the sale. In any event, as explained above, an easement cannot be created before the land is divided.

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18
Q

A landowner sold a house which used a shared driveway. The landowner’s transfer to the buyer included the following covenant: “The transferee and his successors in title will contribute one-quarter of the cost of the upkeep of the shared driveway”. The original buyer sold the house four years ago to the current owner, who included an indemnity covenant in the transfer. The landowner now wants to require the current owner of the house to contribute to the cost of the shared driveway.
Is the landowner likely to be successful in enforcing the covenant against the current owner?

No, because there is no privity of contract between the landowner and the current owner.

Yes, because there is privity of estate between the landowner and the current owner.

Yes, because the current owner gave an indemnity covenant in the transfer from the original buyer.

Yes, because there is privity of estate between the landowner and the current owner.

No, because positive covenants are always unenforceable against successors in title.

A

C) The landowner is likely to be able to enforce the covenant against the current owner because the current owner gave an indemnity covenant in the transfer from the original buyer. A positive covenant is one that requires a positive act to comply. Generally, positive covenants bind only the original contracting parties. However, if the original covenantor obtains an indemnity covenant from the next buyer, liability under the covenant will continue. Here, the current buyer gave an indemnity covenant to the original buyer (the original covenantor). Thus, the landowner will be able to enforce the covenant against the current owner. (A) is incorrect because, as explained above, the current owner gave an indemnity covenant which makes her liable under the covenant despite the lack of privity of contract between the current owner and the landowner. (B) and (D) are incorrect because privity of estate is irrelevant here. Privity of estate describes the relationship between a landlord and a current tenant and is not relevant to the enforceability of positive covenants in the freehold context. (E) is incorrect because, as explained above, while positive covenants generally bind only the original contracting parties, it is possible to enforce a positive covenant against a successor in title under certain circumstances, such as through the indemnity covenant given here.

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19
Q

A painter and an art dealer have asked a solicitor to act for them in the sale of a painting. The parties have differing views on the painting’s value, and the solicitor has explained that she cannot act for both of them in this matter because there is a conflict of interest. The parties reply that they believe the solicitor will treat them both fairly in the negotiations and that they both consent to the solicitor acting.

Which of the following statements best describes whether the solicitor should act for both parties?

Regardless of the fact that the parties gave consent to the solicitor acting, there is still a conflict of interest and the solicitor should not act for both parties.

The solicitor may act for both parties because they have a substantially common interest and each party has consented to the solicitor acting. Should any points of conflict arise during the retainer, the solicitor will need to advise one of the parties to take independent legal advice.

Because the parties have a substantially common interest, the solicitor may act for both parties provided each party gives written consent to the solicitor acting.

Because the parties have a substantially common interest and both parties want the same outcome, there is no conflict of interest, and the solicitor is therefore permitted to act for both parties.

The solicitor should not act for both parties, but may act for one party and refer the other party to another member of the solicitor’s firm to act in the matter.

A

Regardless of the fact that the parties gave consent to the solicitor acting, there is still a conflict of interest and the solicitor should not act for both parties.

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20
Q

A solicitor accidentally emails a client care letter to the incorrect person (not the client). The client care letter contains information about the client and their matter. The solicitor immediately contacts the recipient and requests that they delete the email and do not use it. The recipient confirms they will do this.
Which of the following statements best describes the solicitor’s obligations?

The solicitor does not need to do anything because the mistake has been rectified.

The solicitor does not need to do anything because the client has not suffered any loss as a result of their mistake.

The solicitor should notify the client about what has happened and inform the firm’s compliance officer for legal practice (COLP).

The solicitor should report the matter to the firm’s compliance officer for legal practice (COLP), but does not need to notify the client about what has happened.

The solicitor should report the matter to the firm’s compliance officer for finance and administration (COFA), but does not need to notify the client about what has happened.

A

(C) A solicitor must be honest and open with clients if things go wrong. The solicitor should tell the client about the misdirected email because they may wish to take steps to protect themselves from any potential cyber crime issues, bearing in mind that their confidential information has inadvertently been sent to a third party. The solicitor should also tell the firm’s COLP about the issue so that they can determine whether or not the firm’s insurers need to be notified. (A) and (B) are incorrect because a breach of confidentiality has occurred and this needs to be reported to the firm’s COLP and the client. (D) is incorrect because the solicitor should also inform the client about what has happened. (E) is incorrect for the same reason, and because the matter should be reported to the firm’s COLP, not the COFA.

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21
Q

A firm of solicitors is not authorised by the Financial Conduct Authority to carry on a ‘regulated activity’ as defined in the Financial Services and Markets Act 2000 (‘FSMA’) and related secondary legislation.
Which of the following activities would the firm be able to conduct in its business if no FSMA exclusion or exemption applies?

Safeguarding a client’s debentures.

Advising a client on purchasing Premium Bonds.

Arranging for a client to purchase an insurance policy.

Managing a client’s pension scheme payments.

Contracting for a client to purchase company shares.

A

(B) Under the general prohibition of FSMA, a firm of solicitors may not carry on regulated activity in the UK unless they are authorised or exempt from authorisation. A regulated activity is defined as an activity specified in the Regulated Activities Order relating to an investment specified in the Order, which is carried out in the course of business, and to which no exclusions apply. The specified activities and investments might be remembered with the mnemonic device ‘ADAMS F.M.DIPS’. Activities = Advising, Dealing as an agent, Arranging, Managing, and Safeguarding. The specified investments most relevant to a solicitor = Funeral plans, Mortgage contracts, Debentures, Insurance contracts, Pension schemes, and Shares in a company. The firm would be able to advise a client on the purchase of Premium Bonds because while advising is a specified activity, Premium Bonds are not specified investments. (A), (C), and (D) each clearly involve specified activities (safeguarding, arranging, and managing, respectively) and specified investments (debentures, insurance policies, and pension schemes). (E) clearly involves a specified investment as well (company shares) and contracting on behalf of someone is dealing as an agent (a specified activity).

22
Q
Two businessmen enter into a contract for the sale of a quantity of goods. After the contract has been concluded, it turns out that one of the businessmen is a rogue, and the goods he was selling were stolen.
What rights (if any) does the buyer have under contract law?

None. If the seller does not own the goods they are selling, there is no consideration and therefore no valid contract.

Unless there was an express term in the contract dealing with ownership, the buyer will have no rights.

The buyer can sue the seller for breach of contract as the Sale of Goods Act 1979 will imply a term into the contract that the seller has title to the goods.

The buyer can sue the seller for breach of contract as the Consumer Rights Act 2015 will imply a term into the contract that the seller has title to the goods.

The buyer can sue the seller for breach of contract as the Supply of Goods and Services Act 1982 will imply a term into the contract that the seller has title to the goods.

A

(C) Legislation implies terms into a contract in relation to the seller’s right to sell the goods, in other words, that the seller has good title. The Sale of Goods Act 1979 (‘SGA’) implies this term in relation to a contract between two businesses so (C) is the correct answer. (A) is incorrect. If the seller does not have title then they will be in breach of contract and the buyer will be entitled to sue because of the rights implied by the SGA. (B) is incorrect as it is not necessary for the parties to have expressly agreed to a contractual term dealing with title; the relevant legislation will imply such a term. (D) is incorrect as the parties are both businessmen, and the Consumer Rights Act 2015 applies to consumer contracts. (E) is incorrect as the Supply of Goods and Services Act 1982 relates primarily to the transfer of property in goods (other than sale), the hire of goods, and the supply of services, including the supply of goods as part of those services. The SGA is the relevant legislation in this scenario.

23
Q

A UK importer agrees to buy a consignment of sugar from a dealer in Brazil. The importer’s bank promises the Brazilian dealer that it will pay for the consignment if the importer fails to pay.

What requirements must be met so that the promise by the bank will become a binding contract?

The bank’s promise must be made by deed, because this is a guarantee.

The bank’s promise must be made by deed, because there is no consideration for the promise.

The bank’s promise must be made in writing, because this is a guarantee.

The bank’s promise must be made in writing, because there is no consideration for the promise.

The bank’s promise will be binding as long as the parties intend to create legal relations.

A

(C) The bank’s promise must be made in writing because this is a guarantee. A guarantee is a promise to pay a debt owed by another party if that party fails to pay. It is one of the categories of contract which must be made in writing. (A) is incorrect because there is no requirement that a guarantee be made by deed, although in fact guarantees are often made by deed in case there are issues with consideration. (B) is incorrect because the Brazilian dealer’s agreement to sell the consignment to the UK importer is consideration for the bank’s promise. The consideration is moving from the promisee, the Brazilian dealer. (D) is incorrect because a promise which is not supported by consideration will be binding only if it is made by deed-it is not sufficient that it be in writing. In any event, there is sufficient consideration for this promise, as described above. (E) is incorrect because, in the case of guarantees, the usual requirements for a contract to be binding are supplemented by an additional requirement that the guarantee be in writing.

24
Q

A freelance solicitor with four years’ post-qualification experience is drafting a set of standard terms and conditions of trading for a client. The freelance solicitor only carries on this type of work for clients.
Which statement best describes the professional indemnity insurance coverage which the Solicitors Regulation Authority requires the freelance solicitor to have?

The freelance solicitor must have adequate and appropriate insurance cover only.

The freelance solicitor must have insurance cover at the minimum level required by the SRA only.

The freelance solicitor must have insurance cover at the minimum level required by the SRA and that insurance must be adequate and appropriate only.

The freelance solicitor is not required by the SRA to have professional indemnity insurance because the SRA does not impose any insurance obligation on freelance solicitors.

The freelance solicitor is not required by the SRA to have professional indemnity insurance because the solicitor is not carrying out a reserved legal activity.

A

E) Freelance solicitors do not have an obligation to maintain adequate and appropriate indemnity insurance in accordance with the SRA’s requirements unless they are carrying out reserved legal activities. Reserved legal activities include carrying on notarial services, conducting litigation, and preparing reserved instruments involving property interests. Drafting a set of standard terms and conditions of trading for a client is not a reserved activity. Therefore, the freelance solicitor is not required by the SRA to have professional indemnity insurance. (A), (B), and (C) are incorrect as there is no reserved legal activity and therefore no requirement to have professional indemnity insurance. (D) is incorrect because the SRA requires freelance solicitors to have professional indemnity insurance if they are carrying on a reserved legal activity.

25
Q

A solicitor enters into a conditional fee agreement with their client in a personal injury claim. The agreement states that if the solicitor wins the case, they will be paid a success fee of an additional 25% of the solicitor’s usual rate of £200 per hour. The client’s claim is successful, they are awarded damages of £50,000, and the court orders the other side to pay the client’s costs. The solicitor has billed for 20 hours of work on the case.

Which of the following best describes the costs position?

The solicitor will be paid £5,000 by the client’s opponent.

The solicitor will be paid £5,000 by the client.

The solicitor will be paid £1,000 by the client and £4,000 by the client’s opponent.

The solicitor will be paid £4,000 by the client and £1,000 by the client’s opponent.

The solicitor will be paid £12,500 by the client from the damages awarded.

A

(C) The solicitor will be paid £1,000 by the client and £4,000 by the client’s opponent. 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 successful, the other side is liable for the client’s normal fees and the client is liable for the success fee. Here, there is a conditional fee agreement in place with a 25% success fee. The claim has been successful, and costs have been awarded in the client’s favour. The solicitor has done 20 hours of work at £200 per hour, which totals £4,000. This is the solicitor’s normal fee and can be recovered from the opponent since the opponent has been ordered to pay the client’s costs. The success fee of £50 per hour (25% of £200) is payable by the client, totalling £1,000 (£50 x 20 hours). (A) is incorrect because the opponent is liable for only the client’s costs at the normal hourly rate. The client is liable for the success fee. (B) is incorrect because the other side has been ordered to pay the client’s costs, so the client will be liable for only the success fee. (D) is incorrect because the figures are transposed. As explained above, the opponent will pay £4,000 for the solicitor’s normal fees and the client will pay £1,000 for the success fee. (E) is incorrect because the success fee is calculated as a percentage of the solicitor’s hourly rate, not as a percentage of the damages awarded

26
Q

A solicitor plans to begin working for a charity. She will be advising tenants on lease-related issues and will occasionally conduct litigation.

Do the SRA Standards and Regulations require the solicitor to ensure that the charity takes out professional indemnity insurance in respect of her services?

Yes, in respect of conducting litigation only.

Yes, in respect of advising tenants only.

Yes, in respect of all services she provides.

No, because the solicitor is not carrying out reserved legal activities.

No, because the charity is a not-for-profit body.

A

(C) Solicitors in non-commercial bodies who are carrying on reserved legal activities must ensure that the body takes out adequate and appropriate professional indemnity insurance. Although the carrying on of reserved legal activities is what triggers the insurance obligation, the indemnity insurance must provide adequate and appropriate cover in respect of all services that the solicitor provides. The solicitor here is carrying out a reserved legal activity (conducting litigation) and therefore must ensure the charity has taken out adequate and appropriate insurance cover in respect of all her services. This means that even though advising tenants on lease-related issues is not a reserved legal activity, the insurance must provide cover for those services as well. (A) is therefore incorrect. (B) is incorrect because the insurance also must provide cover for conducting litigation, as this is the reserved legal activity which triggered the insurance obligation. (D) is incorrect because the solicitor is carrying out a reserved legal activity (conducting litigation). (E) is incorrect because a solicitor in any non-commercial body (such as a not-for-profit body) who is carrying on reserved legal activities has an obligation to ensure that the body takes out indemnity insurance.

27
Q

A solicitor is acting on the sale of a client’s assets, which include high-value art pieces. The solicitor is using a specialist art dealer to facilitate the sale and to maximise the amount the pieces will sell for. The contract the solicitor has with the art dealer provides that the art dealer will pay the solicitor 1% of the value of each art piece for referring the work to them.

Is the solicitor entitled to retain the commission?

Yes, because the contract for the sale is between the solicitor’s firm and the art dealer.

Yes, because it was the solicitor’s decision to use this particular art dealer.

Yes, provided the solicitor notifies the client about the commission.

No, unless the client has agreed that the solicitor may retain the commission.

No, the solicitor cannot retain the commission under any circumstances.

A

No, unless the client has agreed that the solicitor may retain the commission.

28
Q

A seller sells boxes to a commercial buyer. The contract incorporates the seller’s standard terms and conditions of business, which contain the following exclusion clause: ‘We exclude all the statutory warranties relating to conformity with description, satisfactory quality, and fitness for purpose’. The boxes are not of satisfactory quality.

What remedies are available to the buyer?

The buyer can terminate the contract and reject the boxes, but the exclusion clause prevents it from claiming damages.

The buyer has no remedy, because the contract includes a clause excluding statutory warranties based on the quality.

The buyer can claim damages and/or terminate the contract and reject the boxes, unless the seller can prove that the exclusion clause is reasonable.

The buyer can claim damages and/or terminate the contract and reject the boxes, because the exclusion clause does not cover the breach.

The buyer can claim damages and/or terminate the contract and reject the boxes, because the exclusion clause is void.

A

The buyer can claim damages and/or terminate the contract and reject the boxes, because the exclusion clause does not cover the breach.

29
Q

A yacht broker and a buyer enter into a contract for the sale of a 100-ft. yacht for £750,000. After the contract has been formed, the yacht broker discovers that the manufacturer of the yacht is unable to supply him with the model the buyer requires. Following the yacht broker’s breach of contract, the buyer looks elsewhere and manages to obtain the yacht he requires for £725,000.

What legal remedy would the buyer be entitled to as a result of the yacht broker’s breach of contract?

Specific performance.
Punitive damages.
Nominal damages.
Restitution.
Expectation damages.
A

(C) Damages are awarded to the innocent party to compensate them for their loss, by putting them back into the position they would have been in had the contract been properly performed. In this scenario, the buyer has obtained the model of yacht that was the subject matter of the contract with the yacht broker, for £25,000 less than they were originally going to pay. Therefore, there is no financial loss suffered, so (C) is the correct answer, as the most the buyer could expect in this situation is nominal damages, that is, a small sum of money to reflect the fact that the buyer has suffered a legal wrong even though there is no actual financial loss. (A) is incorrect because specific performance, as an equitable remedy, would be awarded only where damages were not an adequate remedy, which is not the case in the scenario, particularly as the buyer was able to source an equivalent yacht. (B) is incorrect because generally punitive damages are not awarded in contract cases. (D) is incorrect because restitution is concerned with unjust enrichment, that is, it is about restoring gains, rather than compensating for loss, on the basis that a wrongdoer should not profit from their wrongdoing. This is not relevant to this scenario. (E) is incorrect because the expectation measure of damages is about putting the innocent party back into the position they would have been in had the contract been performed. Therefore in this scenario, as there is no financial loss, damages for loss of expectation would not be relevant.

30
Q

A solicitor works for a conveyancing firm that is a member of the Solicitors Regulation Authority (‘SRA’). The solicitor is acting for a client in the sale and purchase of a family home. The solicitor discovers a problem with the title of one of the properties and advises the client to take out defective title insurance to cover any risk. Neither the solicitor nor her firm is authorised by the Financial Conduct Authority to carry on a “regulated activity” as defined in the Financial Services and Markets Act 2000 (‘FSMA’) and related secondary legislation.

Which of the following statements is most accurate regarding the advice to take out defective title insurance under the FSMA?

The solicitor is not carrying out a regulated activity because there is no specified investment.

The solicitor’s firm needs to appoint an insurance distribution officer before carrying on the regulated activity.

The solicitor is not carrying out a regulated activity because the incidental exclusion applies.

The solicitor’s firm needs to notify the Financial Conduct Authority that it is carrying on activities in relation to insurance policies.

The solicitor cannot rely on the Designated Professional Bodies exemption because an insurance policy is involved.

A

(B) If a firm is carrying out activities in relation to insurance policies, there are additional requirements which it needs to meet. These include appointing an insurance distribution officer as well as notifying the SRA that the firm is carrying out activities in relation to insurance policies and being put on a register of providers. (A) is incorrect because there is a specified investment here, the insurance policy. (C) is incorrect because the incidental exclusion is not available when the specified investment is, as here, an insurance policy. (D) is incorrect because the requirement is for the firm to notify the SRA, not the Financial Conduct Authority, that it is carrying on activities in relation to insurance policies. (E) is incorrect because the Designated Professional Bodies exemption is available when insurance policies are involved. It is the incidental exclusion, as explained above, which is not available for insurance policies.

31
Q

A solicitor is dealing with a complaint from a client about one of the solicitor’s colleagues. The client has requested that the solicitor reduce the bill of costs by 50% because he feels that the colleague was responsible for many delays in the matter and was rude to him. The solicitor has investigated the matter and can see that the colleague was somewhat brusque with the client and that there were some delays on the matter. In order to resolve the issue quickly, the solicitor decides to reduce the bill by 50% to comply with the client’s request. The solicitor drafts a letter to the client to confirm this. The draft letter further explains to the client that the offer to reduce the bill is dependent on the client confirming that he will not make a complaint to the Legal Ombudsman or the Solicitors Regulation Authority.

Which of the following statements best describes whether the draft letter is acceptable?

Whilst it is acceptable to make the offer on the basis that the client will not escalate their complaint to the Legal Ombudsman, the solicitor must not attempt to prevent the client from reporting a matter to the Solicitors Regulation Authority.

Whilst it is acceptable to make the offer on the basis that the client will not escalate their complaint to the Solicitors Regulation Authority, the solicitor must not attempt to prevent the client from reporting a matter to the Legal Ombudsman.

The solicitor must not include the clause that prevents the client from making a complaint to the Legal Ombudsman or reporting a matter to the Solicitors Regulation Authority.

It is acceptable to include the clause that prevents the client from making a complaint to the Legal Ombudsman or reporting a matter to the Solicitors Regulation Authority.

It is acceptable to include the clause that prevents the client from making a complaint to the Legal Ombudsman or reporting a matter to the Solicitors Regulation Authority, provided the solicitor advises the client to take independent legal advice.

A

(C) A solicitor must not attempt to prevent anyone from providing information to the SRA or any other body exercising regulatory, supervisory, investigatory, or prosecutory functions in the public interest. Therefore, the solicitor should not attempt to prevent the client from making a complaint to the Legal Ombudsman or the Solicitors Regulation Authority. (A), (B), and (D) are incorrect for this reason. (E) is incorrect because advising the client to take independent legal advice does not resolve the initial breach of the SRA Code of Conduct in stipulating that the offer is dependent on confirmation that the client will not make a complaint.

32
Q

The Law Society has produced a statement of best practice for conveyancing. It contains a set of steps to follow when acting in the sale and/or purchase of a home for an owner-occupier.
What is this statement of best practice called?

The Portal
The Conveyancing Quality Scheme
The Protocol
The Accreditation
The Code
A

(C) The full name of this statement of best practice is the Law Society Conveyancing Protocol. Thus, all of the other choices are incorrect. It should be noted that (A) is the name of Her Majesty’s Land Registry’s web-based system for accessing title and other documents, and (B) (the CQS), is a quality standard for residential conveyancing practices. If a firm has CQS accreditation, use of the Protocol in conveyancing transactions is compulsory.

33
Q

A solicitor is acting for a buyer and the buyer’s lender in relation to the purchase of a residential flat. The mortgage is on standard terms. Pre-exchange, the solicitor discovers that the property is structurally unsound. The solicitor reports this to the lender in writing without liaising with the buyer first. Upon receipt of the solicitor’s letter, the lender withdraws the mortgage offer. The buyer is very angry and threatens to complain about the solicitor.

Has the solicitor breached any duties under the Solicitors Regulation Authority Code of Conduct?

Yes, because the solicitor should not have agreed to act for both the buyer and the buyer’s lender.

No, because the solicitor is entitled to report information to either the buyer or the buyer’s lender first.

No, because the solicitor’s duty to report adverse matters to the lender overrides the duty of confidentiality to the buyer.

No, because the duty of confidentiality to the buyer is deemed waived when a solicitor represents both the buyer and the buyer’s lender.

No, because the duty of confidentiality to the buyer is deemed waived when a solicitor represents both the buyer and the buyer’s lender.

A

E) Reporting the matter to the lender without first seeking the buyer’s consent is a breach of the duty of confidentiality to the buyer. In residential conveyancing transactions, if the buyer needs a mortgage to fund their purchase, the buyer’s solicitor will often act for the buyer’s lender as well, as is the case here. The lender will expect the buyer’s solicitor to report to them any issue which might affect the value of the property or which might affect the lender’s decision to lend. But the buyer’s solicitor must have the consent of the buyer to report such issues to the lender. Here, the solicitor did not have the buyer’s consent to report the structural issues to the lender before doing so. Thus, the solicitor has breached his duty of confidentiality to the buyer. (Note that if the buyer had refused to allow the solicitor to disclose the information, the solicitor probably would have had to cease acting for the lender because he would be unable to represent the lender effectively.) (A) is incorrect. As explained above, when the buyer is getting a mortgage in a residential transaction, the buyer’s solicitor will often act for the buyer’s lender as well. The buyer’s solicitor should not act for the lender when there is a conflict of interest or a ‘significant risk’ of a conflict of interest between the buyer and lender, but the risk of conflict is low when the mortgage is on standard terms, as here. The buyer’s solicitor must cease acting for the lender, however, if any conflict of interest arises. (B), (C), and (D) are incorrect. As explained above, the solicitor’s duty of confidentiality to the buyer is paramount. The solicitor must obtain consent from the buyer to report matters to the lender before doing so.

34
Q

A man wants to sell his property. He knows that an adjoining property owner has taken a shortcut through his property for over 20 years, although the route of the shortcut is not clearly visible on the ground. The right of way is not mentioned on the man’s register of title. The man is worried that the existence of the shortcut might deter some buyers from purchasing his property and, thus, does not want to mention the issue in the contract of sale.

Which of the following best describes the legal position?

The man does not need to disclose the right of way in the contract of sale because it is not visible from physical inspection.

The man does not need to disclose the right of way in the contract of sale but should be wary of making a misrepresentation in relation to it.

The man should disclose the right of way in the contract of sale because it is a patent defect.

The man should disclose the right of way in the contract of sale because it is a latent defect.

The man does not need to disclose the right of way in the contract of sale but should do so as a matter of best practice.

A

(D) The man should disclose the right of way in the contract of sale because it is a latent defect. A latent defect is an issue which is not apparent from physical inspection of the property. The right of way is not mentioned in the title, but the adjoining property owner is likely to have acquired a prescriptive right by long use (use over 20 years). A latent defect must be disclosed by the seller in the contract. If a seller breaches their duty of disclosure, the buyer may have the right to withdraw from the contract after exchange and claim damages for losses. (A) is incorrect because, as explained above, a latent defect falls within the seller’s duty of disclosure in relation to the contract. (B) and (E) are incorrect because, as explained above, the latent defect must be disclosed in the contract. As a general statement, however, a seller should always be wary of making any misrepresentation in relation to a matter affecting the property being sold. (C) is incorrect because the defect is latent, not patent. A patent defect is one which is apparent from physical inspection of the property and the seller is not obliged to disclose these in the contract. A right of way is often visible upon physical inspection of the property but the question makes it clear that this is not the case in this scenario.

35
Q

Recall from Land Law that another event that triggers registration is the grant of a first legal mortgage (that is, one given by deed) that allows for forfeiture of the property if the borrower defaults (most mortgages do - that’s the whole point of a mortgage).

So what would you do if, whilst examining the epitome of title, you discover that the owner gave a mortgage deed ten years ago, and the land is not registered?

A

The same thing we just discussed for the 2010 conveyance: insist that the seller’s solicitor make the necessary application for first registration at the land registry.

36
Q

A solicitor works at a law firm which specialises in personal injury matters. Recently, there have been important changes in the civil procedure rules that will affect the practice of the solicitors within the firm. The firm has advised all staff that, due to the difficult economic climate, there is no budget for training this year. As a result, the solicitor fails to learn about the changes.

Which of the following statements best describes whether the solicitor and firm are subject to regulatory action?

The firm, and not the solicitor, is subject to regulatory action.

Both the firm and the solicitor are subject to regulatory action.

Neither the firm nor the solicitor is subject to regulatory action.

The solicitor, and not the firm, is subject to regulatory action.

The SRA must decide whether the solicitor or the firm is primarily responsible for the solicitor’s failure to learn about the changes, as only one of the parties can be subject to regulatory action.

A

(B) A solicitor must maintain their competence to carry out their role and keep their professional knowledge and skills up to date. Additionally, a firm must ensure that their managers and employees are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal ethical and regulatory obligations, up to date. Many different types of learning activities will be valid, including in-house presentations and training sessions, team meetings, circulation of relevant articles and information, and shadowing opportunities. (A), (C), (D), and (E) are incorrect because both the solicitor and the firm are subject to regulatory action in this situation

37
Q

A homeowner in Manchester brings a claim against a ladder company from Liverpool for injuries the homeowner sustained when a ladder the company sold collapsed. The claim alleges that the grade and thickness of metal used in the ladder was not sufficient to support the weight that the company claimed the ladder could hold. The ladder was made several years ago by a Chinese subcontractor hired by the company, based on designs made by the subcontractor.

After the company’s solicitor advises the company on the duty of disclosure, an officer of the company tells the solicitor that to the extent that any records relating to the ladder still exist, they would be in China, in possession of the subcontractor. The court has made an order for standard disclosure.
Which of the following statements most accurately describes the manufacturer’s obligations with respect to the documents in China?

The manufacturer has a duty to disclose any relevant documents relating to manufacture of the ladder that were ever in its possession.

The manufacturer has no duty to disclose any documents in China as they are outside of a UK court’s jurisdiction.

The manufacturer has no duty to disclose any documents in China as they are not in the manufacturer’s possession.

The manufacturer has a duty to conduct an exhaustive search for documents in China.

The manufacturer has an absolute duty to search for documents in China.

A

(A) The duty of disclosure is wide ranging. The manufacturer must disclose any documents relating to manufacture of the ladder that were ever in its possession. Under standard disclosure, parties must disclose relevant documents (that is, documents upon which they will rely, as well as documents which affect their case or their opponent’s case) that are or were within their control. (B) and (C) are incorrect as the manufacturer would have a duty to disclose documents in China if they are in the manufacturer’s control, which includes documents the manufacturer has or had a right to possess, inspect, or copy. The mere fact that documents may be in China does not foreclose disclosure. (D) and (E) are incorrect because the duty to search for disclosable documents does not necessarily require an exhaustive search and is not absolute - the court expects each party to make only a reasonable and proportionate search, and what is reasonable and proportionate depends on the nature of the case, its value, and its importance.

38
Q

A man brings a civil claim for battery against another man when attempts at alternative dispute resolution fail. The claim alleges that the defendant hit the claimant with a shovel whilst the two were arguing about a hedge bordering their property. The claimant is seeking £20,000 damages.

The defendant believes the claimant is seeking too much money and so makes a Part 36 offer of £12,000. The claimant does not accept the offer and instead makes a Part 36 offer of £17,000. The defendant does not accept the offer. At trial, the court awards the claimant £11,000.

What costs order would you expect the trial judge to make?

The claimant will be ordered to pay the defendant’s costs from the end of the relevant period of the claimant’s offer because the claimant recovered less than their offer.

The claimant will be ordered to pay all of the defendant’s costs because the claimant recovered less than the defendant’s Part 36 offer.

The defendant will be ordered to pay all of the claimant’s costs because the claimant won their claim.

The defendant will be ordered to pay all of the claimant’s costs up to the end of the relevant period of the claimant’s offer, and the claimant will be ordered to pay the defendant’s costs incurred thereafter.

The defendant will be ordered to pay all of the claimant’s costs up to the end of the relevant period of the defendant’s offer, and the claimant will be ordered to pay the defendant’s costs incurred thereafter.

A

(E) The defendant will be ordered to pay all of the claimant’s costs up to the end of the relevant period of the defendant’s offer, and the claimant will be ordered to pay the defendant’s costs incurred thereafter. If a defendant makes a Part 36 offer, the claimant does not accept the offer, and the claimant wins the claim but does not beat the offer at trial, the defendant will usually be ordered to pay the claimant’s costs up to the end of the relevant period of the defendant’s offer, and the claimant will usually be ordered to pay the costs the defendant incurred thereafter.

39
Q

The owner of a clothing store issued proceedings against a supplier for breach of contract. The case was assigned to the multi-track, and it progressed to disclosure. The District Judge has listed the case for a Case Management Conference.

When must the parties file the disclosure report?

Each party must file a disclosure report not less than 28 days before the first Case Management Conference.

Each party must file a disclosure report not less than 14 days before the first Case Management Conference or otherwise with the Directions Questionnaire.

Each party must file a disclosure report not less than 21 days before the first Case Management Conference.

Each party must file a disclosure report not less than 28 days before the first Case Management Conference or otherwise with the Directions Questionnaire.

Each party must file a disclosure report not less than 14 days before filing the Directions Questionnaire.

A

(B) In a non-personal injury, multi-track claim such as the contract claim here, each party must file their disclosure report at least 14 days before the first Case Management Conference. The parties must discuss and agree the scope of the disclosure requirements in the case. (A), (C), and (D) are incorrect because 14 days is the correct timescale. (E) is incorrect because the filing of the disclosure report is tied to the Case Management Conference, not the filing of the Directions Questionnaire. Furthermore, although a party could file the report with the Directions Questionnaire, it is not required to be filed before the Directions Questionnaire

40
Q

A solicitor has invested a significant amount of money in a company. The company wants to bring a risky but potentially lucrative claim against its competitor, and wants to instruct the solicitor because his fees will be reduced due to his connection with the company.

Should the solicitor accept instructions to act on behalf of the company?

Yes, because he has good knowledge of the company’s finances and so has the skill and expertise to act.

Yes, provided the company’s directors give their written consent and hold the appropriate board meeting to authorise that course of action.

No, the solicitor should decline to act on the basis of an own interest conflict.

Yes, because the solicitor and the company share a substantially common interest in bringing a successful claim against the competitor.

Yes, provided the risks are explained in writing to the company and a limited retainer is created.

A

(C) The fact that the solicitor has a financial stake in the company may mean that the solicitor will not give impartial advice with respect to this risky claim. As this creates an own interest conflict, the solicitor is prohibited from acting. (A) is incorrect. While it might be true that the solicitor has the skill and expertise to act, this does not override the own interest conflict. (B) is incorrect because the own interest conflict would override the consent of the directors. (D) is incorrect because the ‘substantially common interest’ exception applies to client conflicts, not own interest conflicts. A solicitor must not act if there is an own interest conflict. (E) is incorrect because a limited retainer would not be possible in these circumstances and the own interest conflict is the key point.

41
Q

A householder sees that workers employed by a building company have come to her neighbour’s house to paint the windows. As the workers carry out their duties, they play loud music on the radio. The work takes one day to complete. The householder is angry at the disturbance caused by the music and decides to pursue a claim in private nuisance.

In relation to the householder’s claim in private nuisance, which of the following is correct?

The householder is not likely to have a successful claim in nuisance because the noise disturbance only lasted for one day.

The householder is likely to have a successful claim against her neighbour in respect of the noise caused by the contractor she employed, but her damages will be minimal.

The householder could not pursue a successful claim against the workers who caused the noise because any claim would be against their employer, who would be vicariously liable for the noise.

The householder is likely to have a successful claim against the workers themselves because their noise interfered with her quiet enjoyment of her land, but her damages will be minimal.

The householder is not likely to have a successful claim in nuisance because there was no tangible damage caused to her property.

A

(A) The householder is not likely to have a successful claim. Private nuisance is an unlawful interference with the claimant’s use and enjoyment of land. An interference is unlawful when it is substantial and unreasonable. Private nuisance also requires there to be a continuing state of affairs. On the facts, neither of these appear to be satisfied because the noise disturbance only lasted for one day. Therefore, she is not likely to have a successful claim. (B) is not correct. First, on the facts, there does not appear to be an actionable nuisance, as stated above. Second, a person is only liable for nuisances created by independent contractors where the activities with which the contractor is engaged carry a special danger of causing a nuisance. This does not appear to be satisfied on the facts (the contractors were engaged to paint the house, not to do an inherently noisy activity). (C) is not correct. If the workers had caused an actionable nuisance, then the householder could have claimed against them personally. If the nuisance had been caused during the course of their employment, then the claim could also have been pursued against their employer, who would be vicariously liable for their tort. (D) is not correct. It is not sufficient for the householder to show that the noise made by the workers interfered with her quiet enjoyment of her land. She must also show that the interference was substantial and unreasonable and resulted from a continuing state of affairs, as discussed above. (E) is not correct. Private nuisance provides a remedy for unlawful interference with the use and enjoyment of land. This does not require tangible damage to property; intangible damage such as interference with amenity caused by noise is recoverable in nuisance.

42
Q

A solicitor acting for a claimant has attempted to serve the claim form upon the defendant by faxing the court papers to the fax address that appears on the defendant’s headed notepaper. The defendant’s solicitor wishes to dispute that this represents good service because the defendant has not provided express consent to service by this method.
Which of the following statements best describes the process for the defendant’s solicitor to raise this as an issue?

The defendant should plead in the defence that the claimant has not validly served the proceedings.

The defendant must indicate on the acknowledgment of service that they believe service to be defective and make an application within 14 days seeking an order for re-service.

The defendant should raise validity of service as a preliminary issue at the first case management conference.

The defendant should make an immediate application to strike out the claim.

The defendant should inform the claimant’s solicitor of the invalidity of service and invite them to re-serve the proceedings in the correct manner.

A

(B) If a defendant proposes to argue that service was not valid, the appropriate course of action is to file the acknowledgement of service stating that the validity of service is not accepted. Then the defendant should lodge an application within 14 days seeking an order to have the claimant re-serve the proceedings in a proper manner. This may be difficult for them if the time period for service has expired. (A) and (C) are incorrect because the issue should be brought to the court’s attention at the earliest possible stage. It would be too late for the defendant to include it in the defence or bring it up at the case management conference. (D) is incorrect because the likely order is for re-service, not to strike out the claim. (E) is incorrect because, whilst this is an informal option, the defendant’s best interests would be to proceed formally as per (B).

43
Q

A solicitor is representing a defendant in a personal injury claim worth £35,000. The claimant was injured when a display rack fell from the wall in the defendant’s store and hit the claimant. The claimant alleges that the defendant used bolts to mount the display that did not meet the specifications in the display’s assembly instructions. The defendant was careful to use proper bolts, but no longer has documentation to prove this. Therefore, with court permission, the defendant instructs their solicitor to hire a materials engineer to determine the strength of the bolts used.

Which of the following states the legal position with respect to the defendant’s expert’s report?

The report may not give an opinion on matters central to the party’s case.

The report may give an opinion on matters central to the case only if the expert is reasonably certain as to their opinion.

The report may not include the expert’s opinion and is limited to facts which the expert has observed.

The report may not include the expert’s opinion if the opinion relates to an inference.

The report may give an opinion on matters central to the party’s case only if the expert is certain as to their opinion beyond reasonable doubt.

A

(B) An expert’s report may give an opinion on matters central to the case so long as the expert is reasonably certain as to their opinion. Therefore, (A) is incorrect. (C) is incorrect because unlike lay witnesses (whose testimony usually is limited to facts they observed), an expert witness may give evidence in the form of their opinion. (D) is incorrect as an expert may give evidence regarding opinion, inference, or conclusion so long as the matter is within their area of expertise and they are reasonably certain as to the opinion, inference, or conclusion. As the expert need only be reasonably confident, (E) is incorrect because it states the expert must be confident beyond reasonable doubt, which is too high a standard.

44
Q

An electrician was injured when the equipment that was supplied by his employer malfunctioned whilst the electrician was re-wiring an office. The electrician commences proceedings against his employer in the County Court. The employer blames the manufacturer of the equipment, who had recently supplied the equipment directly to the employer. The employer believes that the manufacturer should bear at least part of the responsibility for the accident.

How should the employer best proceed with respect to the manufacturer?

Deny liability in their defence, blame the manufacturer, and wait for the claimant to amend the claim form to join the manufacturer.

Deny liability in their defence, blame the manufacturer, and write an open letter to the claimant’s solicitors inviting them to cease the claim and commence a new action against the manufacturer.

Serve a contribution notice upon the claimant, offering to accept a proportion of the blame if the claimant adds the manufacturer as a defendant.

Deny liability in their defence, blame the manufacturer, and issue a Part 20 claim form seeking a contribution and/or indemnity from the manufacturer.

Pay the claim and start a new action against the manufacturer to recoup their losses.

A

(D) If a defendant believes someone who is not presently a party to the claim is liable (at least in part) for the claimant’s loss, the defendant should deny liability and issue a Part 20 claim (that is, a claim against the third party) within the proceedings. That non-party thereby becomes a third party in the claim and can be held liable for the claimant’s losses. (A) is incorrect because the claimant does not have an incentive to join the manufacturer. (B) is not the best choice for the reason just stated - there is no guarantee that the claimant will cease the claim and issue one against the manufacturer in response to the open letter. (C) suffers the same flaw - there is no guarantee the claimant will comply (indeed, as a practical standpoint, they are unlikely to give up the claim against the manufacturer - a bird in the hand is worth two in the bush). (E) is a possibility, but it is not very efficient, as it would require two proceedings rather than just one. Therefore, it is clearly not the best choice.

45
Q

A man was injured whilst working at his employer’s factory. The man’s solicitor sends a letter of claim to the man’s employer, seeking £27,000 damages. The company refused to settle, arguing that the man’s own negligence was the primary cause of his injury. The man’s solicitor sends the claim form to the County Court Money Claims Centre (CCMCC) in Salford for issuance. After issuance, the company acknowledges service and files a defence.

Which of the following best describes how the court will likely proceed after receiving the defence?

The court will keep the claim in the CCMCC in Salford but will transfer it for trial if the claim does not settle.

The court will transfer the claim to the hearing centre closest to the company’s address.

The court will transfer the claim to a neutral hearing centre, somewhere between the claimant’s and the defendant’s location.

The court will choose a hearing centre to case manage the claim based on court availability at the time of allocation.

The court is likely to transfer the claim to the hearing centre closest to the claimant’s home.

A

(E) Following receipt of a defence or admission, the court will normally transfer a claim to the hearing centre local to the defendant’s home address (if the defendant is an individual) or the claimant’s preferred hearing centre (if the defendant is a company). Here, since the defendant is a company, the court is likely to transfer the case to the hearing centre closest to the claimant. This is for the convenience of the claimant. (A) is incorrect because Salford is for issue, not case management. (B) is incorrect because whilst the case would normally transfer to the hearing centre closest to the defendant, this will not happen here because the defendant is a company. (C) is not correct because the court will not look to find a venue convenient to both parties. (D) is incorrect because the decisions of which court will case manage at this stage is not based on availability.

46
Q

A missile company conducted a routine rocket engine test at a remote site. The rocket engine was mounted on a concrete test stand, with the thrust of the engine directed downward into the ground. When the engine was fired up, huge clouds of flame and smoke filled the air, and particles of debris from the rocket fell onto an adjoining farm. The particles of debris were blown away shortly thereafter by the wind without any damage to the land.
Which of the following best states the reason why the company will avoid liability in trespass?

The farmer bought and operated his farm knowing that the company used the adjoining property for testing its rocket engines.

Neither the company nor any of its employees set foot upon the farmer’s land.

The company had no reason to anticipate that the tests would cause any of the results that occurred.

The rocket testing program is essential to military security, so the company’s conduct was excused as a necessity to protect the public.

There is no damage to the farmer’s land.

A

The company had no reason to anticipate that the tests would cause any of the results that occurred.

47
Q

On behalf of a pedestrian, a solicitor initiates a claim against a driver who had injured the pedestrian in an accident. The solicitor sends a letter of instruction to an expert witness requesting that the expert prepare a report showing how the accident occurred.

Which privilege, if any, would the report fall under?

Legal advice privilege.
Litigation privilege.
Without prejudice privilege.
Common interest privilege.
The report is not privileged and must be disclosed.
A

(B) Litigation privilege relates to communications with third parties (for example, experts and barristers) for purposes of preparation for trial. Here, the report was prepared to assist the pedestrian’s solicitor for trial. However, note that if the pedestrian wishes to rely on the report at trial, it must be exchanged with the other party, and the privilege is lost. (A) is incorrect. Legal advice privilege relates to communications with a client, so there is no litigation privilege regarding the report. (C) is incorrect. Without prejudice privilege arises from settlement negotiations. The communication and report here were not related to settlement. (D) is incorrect. Common interest privilege may apply when there are multiple defendants or claimants. The privilege allows such parties to send documents (for example, correspondence) amongst themselves without fear that those documents will become subject to inspection. The correspondence and report here were not exchanged between co-parties and so this privilege does not apply. (E) is incorrect. Litigation privilege will be lost only if the pedestrian wishes to rely on the report.

48
Q

A dentist is the defendant in a claim for injuries caused by inadequate dental treatment. The dentist has repeatedly flouted the requirements of the pre-action protocol for the resolution of clinical disputes by repeatedly ignoring requests for alternative dispute resolution. The dentist also failed to respond adequately to the letter of notification, as their letter of response was unclear regarding the extent to which they admit breach of duty and causation. The claim settled shortly after issue of proceedings.
What order is the court likely to make as a result of the defendant’s pre-action conduct?

An order for the dentist to pay an additional 25% damages to the claimant as a penalty for failure to comply with the protocol.

An order that the dentist should not be permitted to challenge the claimant’s bill of costs.

An order finding the dentist in contempt of court.

An order for the dentist to pay interest on the claimant’s damages at a rate higher than normally would be allowed and costs to be paid on an indemnity basis.

An order that the claimant can have an additional three months to serve the bill of costs

A

D) When the court believes that the claim should have been capable of resolution without the issue of proceedings, it may order the defendant to pay interest on the claimant’s damages at a rate higher than normally would be allowed. The court may also order the defendant to pay the claimant’s costs on an indemnity basis, that is, the court giving the benefit of the doubt to the receiving party as to whether the costs were reasonably incurred. (A) is incorrect because the court does not have the power to award additional punitive damages to the claimant in this situation. (B) is incorrect because the court cannot tie the defendant’s hands in the costs proceedings in this manner. (C) is incorrect because a party will not be found to be in contempt of court by failing to comply with the protocol, which does not carry the same weight as CPR. (E) is incorrect because the court is not in a position to influence the costs assessment process in this manner.

49
Q

A claim is being pursued under the personal injury protocol. The defendant responds to the letter of
claim by admitting negligence but disputing quantum.

According to the protocol, what is the earliest point at which the claimant can issue proceedings?

The claimant can issue proceedings immediately.
Three months from the defendant’s response.
Fourteen days from the defendant’s response.
Twenty-one days after serving the medical report and an up-to-date schedule of loss.
Twenty-eight days after serving their witness statement and medical report.

A

(D) The claimant must serve the medical report and an up-to-date schedule of loss and allow 21 days for the defendant to make an offer. If no acceptable offer is forthcoming, they are free to issue proceedings. (A) is incorrect because the claimant must supply the medical report and schedule and allow the 21-day period for an offer. To issue immediately would not be in the spirit of the protocol. (B) is incorrect because the three-month period applies only if liability is not admitted; this gives the defendant time to investigate the claim. (C) is incorrect because there is no requirement under the protocol for the claimant to give the defendant 14 days’ notice of intention to issue. (E) is incorrect because the claimant is not required to serve their medical report at this stage. In addition, 21 days’ notice is appropriate,

50
Q

A worker was employed by employer X and subsequently by employer Y. Both employers exposed the worker to excessive levels of noise, in breach of their duty of care to him. The worker now suffers from industrial deafness caused by the excessive noise. The worker issues proceedings against employer Y. The court finds that employer X and employer Y both made a material contribution to the worker’s injury. The court finds that industrial deafness is a divisible injury, of which 75% was caused by employer X and 25% by employer Y.

In relation to the amount of damages recoverable by the worker, which of the following statements is correct?

The worker is entitled to recover 100% of his damages from employer Y.

The worker is entitled to recover 100% of his damages from employer Y unless employer Y seeks a contribution from employer X to reflect employer X’s share of responsibility.

The worker is only entitled to recover 25% of his damages from employer Y.

The court can order employer X to pay a contribution to the damages paid to the worker by employer Y.

The worker will not need to pursue a claim against both employer X and employer Y to recover his damages in full.

A

(C) The worker is only entitled to collect 25% of his damages from employer Y. The worker has suffered an injury which is divisible. This means that damages can be apportioned between employer X and employer Y according to the share of the injury which each of them caused. Each is only liable to pay for the share of the damage which they caused. Employer Y was found to have caused 25% of the worker’s injury, so the worker can recover only 25% of his damages from employer Y. Therefore, (A) is not correct. (B) is not correct. Employer Y cannot seek a contribution from employer X because contribution only applies where both employers are liable for the same damage. In the case of a divisible injury, the employers are not both liable for the same damage. They are each liable only for the share of the damage which they caused, as explained above. (D) is similarly incorrect. Employer Y is only liable to pay damages to the worker for the share of his injury which employer Y caused. There is no scope for employer Y to seek a contribution from employer X. (E) is not correct. Since both employers are each only liable to pay damages for the share of the injury which each caused, the worker would need to pursue a claim against both employers to recover his damages in full