M VIII Flashcards
A man committed a serious offence when he was age 15. At the time, the man was living in a state which had signed the European Convention on Human Rights (‘ECHR’). The man served a sentence of 10 years and was released. Two years later, the state decided to deport the man back to his home country. The man argued that this would be in breach of his right to family life as all his family now live in the state. He has had an unblemished record since his first offence, and he has a job. The state argued that the seriousness of the crime means that the young man remains a danger to the public. The young man was unsuccessful in the highest court of the state. He brings his case to the European Court of Human Rights (‘ECtHR’).
Which of the following statements represents the man’s best argument to convince the ECtHR that he should be allowed to stay?
That deporting him is not reasonable and does not support a reasonable aim, and that there are more reasonable ways of achieving the same aim.
That deporting him is not fair and does not support a fair aim, and that there are fairer ways of achieving the same aim.
That deporting him is not an effective way of achieving the state’s aim and there are more restrictive ways of achieving the same aim.
That deporting him does not rationally support the state’s aim and there are more restrictive ways of achieving the same aim.
That deporting him does not rationally support the state’s aim, and there are less onerous ways of achieving the same aim.
E) The man’s best argument is that deporting him does not rationally support the state’s aim and there are less onerous ways of achieving that aim. The man claims that his deportation would violate his right to family life, which is a qualified right. Interference with qualified rights must be proportional. This choice properly describes the proportionality test. (A) and (B) are incorrect because those choices reference reasonableness and fairness, respectively, which are not terms used in the proportionality test. (C) and (D) are incorrect because they reference “more” restrictive means rather than less restrictive means.
A scouting association appointed a new volunteer scout leader, after ensuring that she had the required qualifications and experience. The association entrusted the leader with the task of taking a group of young adults on an overnight camping trip. Due to the leader’s carelessness in failing to inspect the camp area, the group set up their tents perilously close to an unmarked ravine. During the night, one of the scouts fell into the ravine and was injured. The injured woman brings an action for negligence against the scouting association.
Can the scouting association be liable for the negligent actions of the scout leader?
Yes, because the scouting association could be vicariously liable for the actions of the scout leader if there is a relationship akin to employment.
No, because the scout leader is a volunteer and she is not employed by the scouting association
Yes, because the scouting association is responsible for using reasonable care in selecting scout leaders.
No, because the scouting association has no duty of care towards the injured woman.
Yes, because the scouting association appointed the scout leader and the scout leader is therefore employed by it.
(A) The scouting association can be liable. Although the scout leader is a volunteer and therefore not employed by the scouting association, the claimant may be able to establish a relationship akin to employment sufficient to give rise to vicarious liability on the part of the scouting association. The court may find that such relationship exists because the scout leader’s tort (negligence) was committed as a result of an activity undertaken on behalf of the association, the scout leader’s activity was an integral part of the association’s activities, and the association created the risk of the scout leader’s tort by assigning leadership of the camping trip to her. (B) is incorrect in a case such as this where a relationship akin to employment is created. (C) is incorrect. It is true that the scouting association may itself owe a duty to use reasonable care in selecting scout leaders. However, on the facts, this duty has been complied with because the association made certain that the leader had the required qualifications and experience. (D) is incorrect. The scouting association may be vicariously liable, as explained above. Also, it is not correct to say that the scouting association did not itself owe a duty of care to the injured woman. It is likely to have owed her a duty to use reasonable care in selection of the scout leader (which, on the facts, it did). (E) is incorrect because the scout leader is a volunteer. The fact that she was appointed by the scouting association is not sufficient to make her an employee of the association.
An employee of a chemical manufacturing company has approached a solicitor, asking her to act for him in a personal injury claim involving a chemical spillage at the company. Until two years ago, other solicitors at the firm acted for the same company, advising on a variety of issues, including employment, environmental, and financial issues. The company ended its retainer when it decided to appoint different solicitors as legal advisers.
Which of the following best describes how the solicitor should proceed in the circumstances?
Act for the employee, because the solicitor has easy access to information about the company’s processes.
Refuse to act for the employee, but contact the company and offer to act for it in the case.
Act for the employee, because different solicitors at the firm acted for the company.
Act for the employee, because the company ended its retainer two years ago.
Act for the employee, provided appropriate safeguards are in place regarding confidential information.
(E) The fact that the company is a former client does not end the duty of confidentiality. There may well be confidential information, for instance, in relation to environmental matters. (D) is therefore incorrect. The firm cannot act where it holds confidential information material to the employee’s case, unless either (1) measures are taken to ensure there is no real risk of disclosure, or (2) the former client consents. (A) is incorrect because the information is confidential to the company. (B) is incorrect because it is improper to contact another solicitor’s client in such circumstances. (C) is incorrect because the entire firm owes a duty of confidentiality to the company. Therefore, if it holds confidential information that is material to the matter, it cannot act for the employee unless safeguards are in place or the company consents.
A solicitor is acting for a client in relation to the purchase of a substantial shareholding in a company. The transaction is progressing well but the client is due to go on holiday and will be out of contact for a few days. The client gives the solicitor authority to sign any necessary documents on the client’s behalf in his absence. The solicitor duly signs the share purchase contract. 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 best describes the activity specified in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, which the solicitor carried out in signing the share purchase contract?
Advising
Arranging
Dealing as Agent
Managing
Safeguarding
C) Under the general prohibition of FSMA, a solicitor 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 might be remembered with the mnemonic device ‘ADAMS’. Activities = Advising, Dealing as an agent, Arranging, Managing, and Safeguarding. Dealing as agent is buying, selling, subscribing for, or underwriting investments as agent for a client. Here, the solicitor contracted for the purchase of the shares as agent on the client’s behalf, which is the specified activity of dealing as agent. (A) is incorrect because, in signing the share purchase agreement, the solicitor was not advising, that is, giving advice to the client which the client would then act upon. (B) is incorrect because the solicitor was not making arrangements, that is, arranging for another person to buy, sell, subscribe for, or underwrite a particular investment. As explained above, in signing the share purchase agreement, the solicitor contracted for the purchase of the shares herself on behalf of the client. (D) is incorrect because the solicitor was not managing, that is, managing assets belonging to another person in circumstances which involve the exercise of discretion. The solicitor was not exercising discretion as to which shares to buy, but rather implementing an agreed share purchase transaction. (E) is incorrect because the solicitor was not safeguarding, that is, administering or safeguarding (looking after) the shares. This specified activity is more relevant to probate and trust work
A husband runs a printing business. His wife asks him to print a number of brochures for her pet grooming business. The husband agrees to print the brochures for £100. After the brochures have been printed, the wife refuses to pay.
What is the position under contract law?
The wife has no legal obligation to pay. As they are married, this constitutes a domestic and social arrangement where there is a presumption that the parties do not intend to be legally bound.
The wife has a legal obligation to pay. As they are married, this constitutes a domestic and social arrangement where there is a presumption that the parties intend to be legally bound.
The wife has a legal obligation to pay. Even though they are married, they both were acting in a commercial context.
The wife has no legal obligation to pay as she agreed to do so before the brochures were printed, so there is no consideration for the parties’ promises.
The wife has a legal obligation to pay her husband for any costs incurred in the printing so he is not out of pocket, but nothing more.
C) Even though the parties are husband and wife, and there is a presumption that they do not intend to be legally bound, that presumption would be rebutted by the fact that they are both acting in a business capacity. (A) is therefore incorrect for the same reason. Whilst marriage raises a presumption that there is no legal intent, it can be rebutted by evidence to the contrary, as in this scenario. (B) is incorrect because in a domestic and social arrangement there is no presumption that the parties intended to be legally bound. That is the position in a commercial context. (D) is incorrect because the timing of the wife’s agreement is irrelevant. The promise to pay was consideration for both promises and is executory (a promise to do something in the future). (E) is incorrect because in this context the law does not distinguish between costs incurred and the contractual obligation to pay. Either the wife is legally obliged to pay or she is not, and in this case it would appear that she Is.
A company owns and runs a fitness gym. On several occasions over the past few months, company employees have caught a youth entering the gym without permission to use the fitness equipment. They warned him against entering without paying, but he did it again the following week. He began to use one of the fitness machines which then collapsed onto him, causing him a serious injury and smashing his expensive mobile phone. The evidence later showed that the machine had a worn safety bolt. The company running the gym had been aware of this serious and dangerous defect but had not found time to have it repaired.
In a claim by the youth against the company for damages for his personal injury and property loss, which of the following statements is correct?
The youth is not likely to have any successful claim against the company because he entered the premises and used the machine without permission, so the company did not owe him a duty of care.
The youth is not likely to have any successful claim against the company because, while the company owed a duty of care to the youth, it was not in breach of that duty.
The youth is not likely to have any successful claim against the company because, while the company owed a duty of care to the youth to take reasonable care to see that he does not suffer injury to his person, it was not in breach of that duty, and because it did not owe him a duty of care as to his property.
The youth is likely to have a successful claim against the company for all of his damages because the company breached its duty to take reasonable care to see that he does not suffer injury to his person or property.
The youth is likely to have a successful claim against the company for his personal injury, but not for his mobile phone, because the company breached its duty to take reasonable care to see that he does not suffer death or personal injury.
(E) The youth can recover damages for his personal injury but not for his mobile phone. The youth suffered an injury caused by the state of the premises (the defective fitness machine). The company is the occupier of the premises. The youth is not a lawful visitor; he entered the premises as a trespasser. In these circumstances, the duty owed is governed by the Occupiers’ Liability Act 1984. An occupier owes a duty to a trespasser provided the following are satisfied: the occupier is aware of the danger (the company knew of the defect); the company was aware that a trespasser may come into the vicinity (it was aware of the youth’s previous trespasses); and it would be reasonable to expect the occupier to offer protection (the defect was serious and dangerous). The duty is to take reasonable care to see that the trespasser does not suffer injury. The duty does not cover damage to property. On the facts, the duty appears to have been breached because the occupier was aware of the dangerous defect in the machine but had not found time to have it repaired. Causation of damage is also satisfied. Therefore, the youth should have a claim in respect of his personal injury but not for the damage to his mobile phone. (A) is not correct because the company did owe the youth a duty to take reasonable care to see that he does not suffer injury to his person. (B) is not correct. The company does appear to be in breach of the duty owed to the youth, as discussed above. (C) is not correct in two respects. First, the youth is not likely to have a successful claim in respect of his mobile phone because he was a trespasser. Second, the company did breach its duty as to the youth’s personal injury, as discussed above. (D) is not correct. The company’s duty to see that the youth does not suffer injury applies only to personal injury, not to property damage.
Recently, an American lawyer retained a client who trades with businesses in Wales. The client is concerned over the fact that the Welsh Parliament has passed an Act that amends certain retained EU law. The UK government has not passed any regulations barring the Welsh Parliament from modifying this particular retained EU law. Moreover, the retained EU law concerns a matter falling within the Welsh Parliament’s legislative competence.
Which of the following best explains the legal position?
The Act is valid because the Welsh Parliament is not bound to comply with this retained EU law.
The Act is not valid because the Welsh Parliament is bound to comply with this retained EU law.
The Act is not valid because it has not been approved by the Supreme Court.
The Act is valid because it has been approved by the UK Parliament.
The Act is valid because the devolved legislatures may legislate contrary to any retained EU law.
(A) The Act is valid because the Welsh Parliament is not bound to comply with this retained EU law. With the end of the transition period (in December 2020), the devolved legislatures are now free to legislate contrary to retained EU law falling within their legislative competence, unless excepted by regulations passed by the UK government under the European Union (Withdrawal) Act 2018. Because the UK government has not passed any such regulations, and this retained EU law falls within the Welsh Parliament’s legislative competence, the Welsh Parliament was free here to legislate contrary to the retained EU law. (B) is incorrect because legislation passed by the Welsh Parliament after the end of the transition period does not need to comply with this retained EU law. (C) and (D) are incorrect because those procedures do not exist. (E) is incorrect because it is too broad. The devolved legislatures may legislate contrary to retained EU law, assuming the retained EU law is within the devolved institutions’ legislative competence and is not excepted by regulations passed by the UK government.
A legal research intern wants to explore the appeals process and so asks a senior judge to explain the direction that appeals can be made.
Which of the following is not a direction by which an appeal can be made?
The Crown Court to the Court of Appeal The Court of Appeal to the Supreme Court The High Court to the Supreme Court The High Court to the Court of Appeal The Crown Court to the High Court
(E) Appeals from the Crown Court will be heard in the Criminal Division of the Court of Appeal, as can be seen in (A). As in (B) the Court of Appeal decision can be appealled to the Supreme Court, and as in (D) the High Court’s decision can be appealed to the civil division of the Court of Appeal. (C) the High Court’s decision can be appealed straight through to the Supreme Court if the matter is of public significance.
A solicitor is acting for a claimant in a claim against their former financial adviser. The parties complied with the pre-action protocol but could not settle the claim. As a result, the claimant issued proceedings. The claimant’s solicitor then received notice that the claim was proposed to be allocated to the multi-track. The claimant’s solicitor is confident of success but is aware of potential weaknesses in the claim and of the escalating costs now that court proceedings are underway. Therefore, the solicitor would like to explore settlement at this stage.
Which of the following describes the most appropriate course of action for the solicitor to adopt with a view to achieving settlement at this stage of the claim?
The claimant’s solicitor should make an immediate application for summary judgment.
The claimant’s solicitor should request further information to narrow the issues stated in the defence.
The claimant’s solicitor should ask the defendant for an interim payment.
The claimant’s solicitor should write an open letter to the defendant asking them to admit liability for the advice.
The claimant’s solicitor should ask the court to order a stay for alternative dispute resolution to enable potential settlement to be explored.
(E) The solicitor should ask for a stay for alternative dispute resolution (for example, mediation or negotiated settlement). This is likely to be granted by the District Judge and it will give the parties the opportunity to consider the strengths of their respective cases and actively engage to see if settlement can be achieved at this point. (A) is incorrect because an application for summary judgment asks the court to enter judgment for the applicant without proceeding to trial because evidence shows the other party has no real prospect of success. As the facts indicate the solicitor is aware of weaknesses in the claim and we are at an early stage of the proceeding, it is unlikely an application for summary judgment will succeed. (B) is incorrect because, although a request for information can narrow issues, such a request is not a mechanism to promote settlement. (C) is incorrect because the grant of an interim payment is not a settlement device either; it is merely an application asking the court to order the other party to pay something before the case is settled. Such an order can be ‘without prejudice’ - meaning the court could rule in the paying party’s favour later. (D) is incorrect because the defence already disputes liability. The defendant is unlikely to respond to a request to admit with anything other than a reiteration of the denial set out in the defence.
A consumer wanted to invest her modest savings. She could not afford to pay for financial advice. However, she obtained free advice from an investment advisor who has the practice of providing the first half hour of consultation free of charge. The consumer invested her savings in reliance on the advice. Unfortunately, the investment fell in value and she lost all her money. An independent review later showed that her loss was caused by the negligence of the investment advisor, whose advice had been totally inappropriate.
In a claim in tort by the consumer against the advisor, which of the following best describes the duty of the advisor?
The advisor did not owe a duty of care to the consumer because the advice was given for free.
The advisor did not owe a duty of care to the consumer because she suffered pure economic loss.
The advisor did owe a duty of care to the consumer because he was in business as an investment advisor.
The advisor did owe a duty of care to the consumer because he knew that she was relying solely on his advice to invest her savings and it was reasonable for her to do so.
The advisor did not owe a duty of care to the consumer because it was not reasonable for her to rely on his advice without further independent enquiry.
(D) The advisor did owe a duty of care to the consumer. The consumer would consider a claim in the tort of negligence and would need to establish that the advisor owed her a duty of care. The consumer has suffered pure economic loss. The advisor would only owe a duty of care in respect of such loss if there were a special relationship involving an assumption of responsibility by the advisor and reasonable reliance by the consumer. This choice correctly recognises such a relationship. The advisor knew the purpose of the advice, that it would be communicated to the consumer, and that she would rely on it without independent enquiry. She did rely on it and it was reasonable for her to do so. (A) is not correct. The fact that the advice was given for free does not prevent the duty of care from arising. On these facts, a duty would be owed. (B) is not correct. It is true that the consumer suffered pure economic loss. However, it is not correct to say that the advisor did not owe a duty of care in respect of such loss, as explained above. (C) is not correct. On these facts, it is true that the advisor owed a duty of care to the consumer. However, this choice does not give the correct reason. The duty does not arise simply because the advisor was in business as an investment advisor. Rather, it arises because of a special relationship involving an assumption of responsibility by the advisor and reasonable reliance by the consumer. (E) is not correct. It is true that it must be reasonable for the consumer to rely on the advice. On the facts, it does appear reasonable for the consumer to have relied on the advice without further independent enquiry. Her savings were modest, she could not afford to pay for advice, and the advisor offered a free consultation knowing the purpose of the advice and that it would be relied on. Therefore, a duty of care is owed.
A worker at a petrochemical plant was severely burned when a pipe carrying hot oil exploded. The worker brought an action against the company that manufactured the pipe. At trial, the worker presented evidence that the pipe burst because it had corroded at a higher than normal rate, and that this was caused by small fissures formed in the pipe coating during manufacturing. The manufacturer presented evidence that the risk of such fissures was known but could not be entirely eliminated despite its rigorous checking process, which met the highest industry standards.
Which of the following statements best describes whether the worker will succeed in a claim against the manufacturer?
The claim is not likely to succeed because the manufacturer could not have discovered the defect in the pipe even with the exercise of reasonable care, so the ‘state of the art’ defence in the Consumer Protection Act 1987 will apply.
The claim is likely to succeed because the manufacturer is liable in negligence because the pipe was defective and injured the worker.
The claim is not likely to succeed because the manufacturer did not fall below a reasonable standard of care and so is not liable in negligence.
The claim is likely to succeed because the fact that the pipe was defective means that the manufacturer is liable under the Consumer Protection Act 1987.
The claim is not likely to succeed because the defective pipe was being used in the course of a business, so the Consumer Protection Act 1987 does not apply.
(D) The claim is likely to succeed because the manufacturer is liable to the worker under the Consumer Protection Act 1987 (‘CPA’). The manufacturer is a potential defendant under the CPA as producer of the pipe. The pipe is defective because its safety was not such as persons generally are entitled to expect. The manufacturer is liable to the worker because he suffered damage caused by the defect in the product. Liability under the CPA is strict; it is not necessary to prove that the defect was caused by any fault on the part of the manufacturer. On the facts, there is no defence to the claim under the CPA, as discussed below. (A) is not correct because the ‘state of the art’ defence under the CPA will not apply. This defence applies where the producer could not have discovered the defect because of the state of scientific and technical knowledge at the time. However, this defence has been narrowly interpreted. It does not apply where the risk of a defect is known about, even if the knowledge does not exist to enable it to be avoided. (B) is not correct because it does not state the correct reason why the claim is likely to succeed. The manufacturer is not likely to be liable in negligence. A duty of care was owed to the worker, but the manufacturer does not appear to have fallen below a reasonable standard of care, so is not in breach of duty. (C) is not correct. It is true that the manufacturer is not likely to be liable in negligence because it did not fall below a reasonable standard of care. However, the claim is likely to succeed under the CPA, as explained above. (E) is not correct. The CPA does apply and the claim is likely to succeed, as explained above. The CPA does not apply to damage caused to property used for business, but that is not the case here. The CPA does apply where damage is caused by a defective product, even if the product is used for business purposes, as is the pipe in the question
A customer takes their suit to a dry cleaners for cleaning. On the wall behind the dry cleaners’ counter is a prominent notice which says ‘All cleaning is subject to our standard terms and conditions, a copy of which is available on request’. The customer leaves their suit with the dry cleaners and is given a ticket, but does not ask to see the terms and conditions. The terms and conditions say that the dry cleaners exclude all liability for any loss of or damage to items left for cleaning, however caused.
Is the exclusion of liability likely to be incorporated into the contract between the customer and the dry cleaners?
Yes, because sufficient steps were taken to bring the exclusion to the customer’s attention.
No, because the terms and conditions were brought to the customer’s attention too late.
Yes, because merchants are free to exclude liability so long as the fact that the contract is subject to terms is clearly displayed.
No, because the customer did not ask for a copy of the terms and conditions.
No, because the terms of the exclusion needed to be drawn specifically to the customer’s attention.
(E) It is possible to incorporate terms, including exclusions of liability, into a contract by referring to them in a notice. However, the more onerous or unusual the term, the greater the effort required to bring it to the other party’s attention. This is a particularly broad exclusion of liability covering, for example, damage caused by the dry cleaner’s negligence. It is unlikely to be incorporated into the contract unless the exclusion itself (and not just the fact that all cleaning is subject to terms and conditions) has been drawn specifically to the customer’s attention. Therefore, (A) is incorrect. (B) is not correct because the contract was concluded at the latest when the suit was accepted for cleaning and the customer was handed the ticket, and the customer should have seen the notice before then. (C) is incorrect because it is too broad. As explained above, exclusion is possible, but onerous exclusions require more specific notice. (D) is incorrect because a notice such as this is capable of incorporating terms and conditions into a contract even if they have not been read.
A junior solicitor is supervising a large team of paralegals, all of whom provide legal services in the personal injury department of a law firm. The solicitor’s supervision extends to managing issues such as requests for holiday leave and other employment-related matters.
Which of the following statements best describes what the SRA expects in terms of supervising non-solicitor employees?
The SRA does not have any expectations about supervision of non-admitted staff.
The SRA expects supervising solicitors to remain accountable for the work carried out by non-solicitor staff.
The SRA expects owners of the firm, not individual solicitors employed in it, to ensure the supervision of non-solicitor staff.
The SRA expects solicitors to supervise non-solicitor staff in employment-related matters only.
Supervision is not a regulatory concern.
(B) In acting as a supervisor or manager to others providing legal services, a solicitor must remain accountable for the work carried out through them and effectively supervise work being done for clients. The owners of an SRA-authorised firm must ensure that there is effective supervision. This is justified because of the need to ensure that the firm is well managed and a safe place from which to deliver services to clients. (A) is incorrect because the SRA’s expectation is that all staff in an SRA-authorised firm (whether legally qualified or not) are subject to effective supervision. (C) is incorrect because both firms and individual solicitors have supervisory responsibilities. (D) is incorrect because the SRA requires supervision of the provision of legal services and not just employment-related matters. (E) is incorrect because regulatory expectations as to supervision are contained in the SRA Standards and Regulations.
A client is contemplating suing her former solicitor for negligent advice in respect of her divorce settlement. The client contends that she received significantly less than her legal entitlement because of her solicitor’s negligent failure to seek disclosure of her former husband’s assets and negotiate a proper settlement.
The client first consulted the solicitor on 10 May 2018, received written advice recommending settlement on 1 August 2018, and the settlement was concluded on 1 September 2018.
Which of the following best describes the applicable limitation period?
Three years starting from the date of the first consultation.
Six years starting from the date of the first consultation.
Three years starting from the date of the advice recommending settlement.
Three years starting from the date the settlement was concluded.
Six years starting from the date the settlement was concluded.
(E) The limitation period for a non-personal injury (‘PI’) negligence-based claim is six years. The time starts to run from the accrual date, which is the date the tortious act occurred. Here, that would be the date at which the negligent settlement took place. (A), (C), and (D) are incorrect as the three-year period applies only to PI negligence-based claims. (A) and (B) are also incorrect because there was no negligence at the point of the initial consultation. (C) is further incorrect because the advice does not cause injury until the settlement is finalised.
A manufacturer failed to pay a supplier for goods the manufacturer ordered, claiming the goods were not delivered. The supplier did not want to jeopardise its relationship with the manufacturer, who, at the time, was the supplier’s biggest customer. However, the relationship between the two has soured and the manufacturer seldom places orders with the supplier. The supplier decides that it will make a claim for the debt. However, the end of the limitation period is near. It ends on 20 November. On 5 November, the supplier’s solicitors issue court proceedings to stop the limitation clock running.
Which of the following best describes the deadline for service of the claim form upon the manufacturer?
The claimant must serve the claim form before 20 November.
The claimant must serve the claim form within 14 days of issue, that is, by 19 November.
The claimant must serve the claim form within 14 days of 20 November, that is, by 4 December.
The claimant must serve the claim form within four months of issue, that is, by 5 March.
The claimant must serve the claim form within one month of issue, that is, by 5 December
(D) A claimant must serve an issued claim form within four months of the date of issue, failing which the court will not permit the claimant to continue with the claim. It will be extremely difficult to persuade the court to allow the claim to continue if the claimant fails to serve in time. (A) is incorrect because the claimant need only issue the claim form, not serve it, by the end of the limitation period. (B) is incorrect because the period is four months, not 14 days. Fourteen days refers to the period that the claimant has available to serve Particulars of Claim following service of the claim form. (C) is incorrect for the same reason - it refers to the period for serving the Particulars of Claim. Additionally, the trigger date is not 20 November, which represents the end of the limitation period. (E) is incorrect because the period is four months, not one month.
A client is contemplating entering into a conditional fee agreement with a solicitor to fund a professional negligence action against another solicitor. Additionally, the client wishes to enter into an after the event insurance policy.
Which of the following best describes what the after the event policy will cover?
The solicitors’ costs (own solicitor and other side) whether or not the client is successful.
The solicitors’ costs (own solicitor and other side) and disbursements whether or not the client is successful.
The solicitors’ costs (own solicitor and other side) and any damages payable to the other side.
The disbursements and the other side’s solicitor’s costs in the event the claim is unsuccessful.
The disbursements and the other side’s solicitor’s costs in the event the claim is successful.
(D) If the claim is unsuccessful, the after the event insurance policy will cover disbursements and the other side’s solicitor’s costs. Disbursements are expenses incurred by the solicitor to progress the claim, such as experts’ reports, court fees, medical records, and so on. After the event policies also cover the risk of having to pay costs to the other side if the client’s claim is unsuccessful. (A) and (B) are incorrect as the policy will only cover liability to pay the other side’s costs and the client’s own disbursements. After the event insurance is often associated with a conditional fee agreement, so the client will likely not have any liability to pay his own solicitor’s costs if unsuccessful, but this would be due to the conditional fee agreement rather than the after the event insurance policy. (C) is incorrect as an after the event policy does not cover payment of damages. (E) is incorrect because after the event insurance does not apply when the claim is successful. In that case, disbursements and costs are recovered from the defendant.
A firm intends to carry out a marketing campaign in which it will advertise that it will share 25% of its fees with anyone who refers personal injury clients to them.
Which of the following best describes whether the arrangement is permissible?
The arrangement is permissible because the share of fees paid by the firm will be for marketing purposes.
The arrangement is not permissible because it will result in the payment of prohibited referral fees.
The arrangement will only be permissible if the firm has an agreement in writing with anyone who refers clients to the firm, and if the firm notifies each referred client of the arrangement.
The arrangement is not permissible because referral fees are prohibited in all matters.
The arrangement will only be permissible if each referred client consents to the arrangement.
(B) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) prohibits the payment or receipt of referral fees in claims for damages following personal injury or death. Because the firm will share its fees in exchange for referrals of personal injury matters, this arrangement would result in the payment of prohibited referral fees. (A) is incorrect because the fee paid will be in exchange for the referral, not for marketing; therefore, it will be a prohibited referral fee. (C) is incorrect. This choice states the general rule for permitted fee sharing arrangements, but this is a prohibited referral fee because it is a personal injury matter. (D) is incorrect because payments in exchange for a referral are generally permitted, but are prohibited in personal injury matters. (E) is incorrect because this is a prohibited referral fee, and the client’s consent will not solve the problem.
The police learn that an animal rights group intends to hold a protest outside a scientific laboratory that conducts testing on animals. The area where the group intends on protesting is restricted to only employees of the laboratory. The laboratory is located in central England, and around 40 activists are likely to attend. A previous protest two months ago caused damage to the windows of the laboratory, and some activists have stated that they “want to finish the job this time”.
Which of the following best explains what the police can do in advance of the protest?
Because the protest is a trespassory assembly, the police can apply to the Home Secretary to ban it.
Because the protest is a trespassory assembly, the police can apply to the local council to ban it.
Because the protest is a public assembly, the police can apply to the Home Secretary to ban it.
Because the protest is a public assembly, the police can apply to the local council to ban it.
Because the protest is a trespassory assembly, the police must direct the protestors to conduct the protest in a manner so as to prevent disorder or damage to property.
(B) Because the protest is a trespassory assembly, the police can apply to the local council to ban it before it takes place. A trespassory assembly includes any assembly of 20 or more persons on land to which the public have no right of access, which is likely to be held without the permission of the occupier, and which may cause significant damage to buildings of scientific importance. The planned protest here meets this definition. Because the protest is to take place outside of London, the application to ban the assembly has to be made to the local council rather than the Home Secretary. (A) is incorrect because the Home Secretary can ban trespassory assemblies only in London and Greater London. (C) and (D) are incorrect because the protest does not qualify as a public assembly, as the public have no right of access to the land. (E) is incorrect because the police have the ability to ban a trespassory assembly before it occurs. They are not required (nor are they likely) to allow it to proceed.
A cyclist suffers multiple injuries following a collision with a car. The solicitors for the cyclist write to the driver’s insurers indicating that they are intending to bring a claim. They subsequently send a letter of claim to the driver, with a copy to his insurers, stating that they will commence formal legal proceedings unless they receive a formal admission of liability within 21 days.
The driver’s insurers respond on Day 20, stating that they are investigating the claim and will come back to the cyclist’s solicitors as soon as possible with confirmation of whether liability can be admitted. The cyclist instructs his solicitors to ignore this and issue proceedings, having already obtained a medical report.
What is the likely impact of the cyclist’s pre-action conduct?
The cyclist is in breach of the personal injury protocol, and he is likely to be penalised in costs or interest.
The court will not consider the conduct of the cyclist to be unreasonable if the claim is subsequently settled.
The court will debar the cyclist from relying upon the medical report obtained prior to commencement.
The driver will be entitled to apply to strike out the claim.
The court will discount any award of compensation by 10% to take into account the unreasonable nature of the cyclist’s pre-action conduct.
(A) The cyclist is in breach of the Personal Injury Protocol because the protocol provides that if a defendant responds to a letter of claim, the claimant must then give the defendant three months to investigate the claim. As the claimant did not comply, the judge is likely to be unhappy at the pre-action conduct of the claimant and his solicitors, and the judge may deprive the cyclist of interest on his damages. The judge also may order the cyclist to pay part of the driver’s wasted costs because the claim may have settled earlier without significant cost of court proceedings, if the cyclist had complied with the protocol. (B) is incorrect because the court is very likely to find the conduct of the cyclist unreasonable. (C) is incorrect because the rules do not provide for denial of relying on a medical report as a penalty for non-compliance with the protocol. (D) is incorrect because failure to accord with protocol does not automatically give the other party a right to judgment or to strike out the claim. (E) is incorrect because the rules do not permit the court to reduce the damages to reflect non-compliance with protocol.
The current government lacks a majority of seats in the House of Commons. This leads the Commons to pass a motion of no confidence in the government.
Which of the following best explains what happens next under the Fixed-term Parliaments Act 2011?
The Prime Minister must immediately resign.
The Queen must immediately dismiss the Prime Minister.
A general election must be held if the House of Commons has not passed a motion signaling confidence in the government within 14 days of the no confidence motion
A general election must be held immediately.
A general election must be held if, within seven days of the no confidence motion, the House of Commons has not passed a motion signaling confidence in the government.
(C) A general election must be held if the House of Commons does not pass a motion of confidence in the government within 14 days of the no confidence motion. Normally, general elections in the House of Commons are held every five years. However, under the Fixed-term Parliaments Act 2011, an earlier election will be held if the Commons passes a motion of ‘no confidence’ in the government and that is not followed within 14 days by a motion of confidence in the government. (A) and (B) are incorrect because those events do not necessarily follow a no confidence vote. (D) is incorrect because an election does not immediately follow the no confidence vote. Rather, the 14-day period must expire without a vote of confidence in the government. (E) is incorrect because the period is 14 days, rather than seven days.
