Mixed Set 2 [FLK1] Flashcards
In judicial review - what is breach of natural justice?
decision makers should approach decisions with fairness and be impartial - if not, it is a breach of natural justice
Can a partnership agreement be verbal?
Yes
Is right to call and examine witnesses a reserved legal activity?
Yes
It is a criminal offence for 3P to conduct reserved legal activities
Do you have to give notice of a public assembly?
No
dont confuse it with public procession!
what is a public assembly
2 or more persons + in a public space + which is wholly or partly open air
what powers do they police have for a public assembly
they cannot ban it! unlike a public procession!
But they can impose conditions
When the D is outside the jurisdiction and you want to serve the CF in D’s jurisdiction, what do you do (general)?
How is the process diff. if the CF is to be served in N Ireland or Scotland?
you can serve it in D’s jurisdiction provided you obtain permission from the courts of E&W
then the CF will be served in N Ireland/ Scotland with a notice containing grounds on which the client is entitled to serve the CF out of jurisdiction
who makes a derivative claim and when?
it is made by a member of the company on behalf of the company against 1 or more DIRECTORS for breach of duty, negligence or mismanagement
damages awarded go to the company (not the individual member)
who makes an unfair prejudice claim and when?
made by the member for issues arising between directors and members
damages awarded directly benefit the member
- who is a primary victim
- if a primary victim doesnt suffer physical injury but only psych injury, what do they have to show?
- someone that suffers the harm or is exposed to the risk of the harm
- that the physical injury was FORESEEABLE (no need to show foreseeability of psych injury)
When is acceptance effective when it is via fax?
Acceptance is effective when it reaches the recipient’s fax machine (like email)
(acceptance is not when it is sent, read or understood)
What is the postal rule?
Acceptance is effective on dispatch (unlike fax/ email…which is effective when it reaches the recipient’s server)
Does parliamentary privilege provide absolute protection to MPs?
Yes, re statements said in Parliament, even if the maker of the statement said it KNOWING it to be false and WITH the express intent of causing damage to the person.
How do you name a sole trader on a CF?
client name + “trading as” or “T/as” + trading name of client’s business
what primary test does the FCA apply to determine if an individual employee can be designated as an approved person
employee must demonstrate that they are fit and proper in terms of competence, qualifications, training
OLA 1957, who is an “occupier”? What is the test?
degree of occupancy control
not degree of visible control
What is a comfort letter?
used to comfort a recipient that a financial/ contractual obligation with a 3P can and will be met
if you are a creditor who made an unauthorized investment and now the company has gone into liquidation - will you come under the statutory order for payment of debts?
yes as a postponed creditor
what is the magnitude of risk test in tort?
DOC must match the level of risk
ie compare likelihood of harm against the measures needed to prevent it
Who appoints life peers?
Monarch on the advice of the PM
Who should be given notice of a company’s general meeting under model AOA?
members and directors
(no need to give creditors of any kind or employees notice)
Example of unilateral offer
Reward for lost dog
this is treated as a definitive offer
the first person to satisfy the condition can claim it
what is an AOA
contract between the company and its members
Tort
To use “necessity” as an absolute defence, what do you need to show?
- there is a situation of overwhelming urgency and an action is taken to prevent greater damage
- action should be REASONABLE in the circumstances
In an LLP, what % of member approval do you need for the following as a default provision in the absence of a partnership agreement?
- name change
- change in the nature of business
- adding a new member
- any other change
- 100%
- 100%
- 100%
- majority of the members
Limitation period for personal injury
3 years
it starts running from:
- date on which the action accrued; or
- when you find out about it issue, whichever is later
When UK law and retained EU law conflict, who must issue a declaration of incompatibility?
courts
when you make an application for freezing injunction without notice, what is required?
evidence as to why no notice was given (not evidence as to why the injunction should be granted)
What does per incurium mean?
it means that a decision was made through lack of care eg a binding precedent has been overlooked
what is noscitur a sociis
“it is known by its associates”
a principle of statutory interpretation used to determine the meaning of a word or phrase by the context in which it appears
what is per incurim
a decision made by oversight of significant statutes/ legal precedents
what is expressio unius est exclusio alterius
“the expression of one thing is the exclusion of another.”
It suggests that if certain items are listed in a statute, other items not listed are intended to be excluded.
what is ejusdem generis
“of the same kind” and is used to interpret general words at the end of a list that also contains more specific items, where the general words are treated as applying only to items of the same type as those specifically listed
under standard disclosure, what docs should you disclose?
docs that you will RELY on, even if they adversely affect/ support your case or the other party’s case
when is a company’s promise to pay additional sums enforceable to a supplier?
when the promise leads to practical benefit for the company + it is made voluntarily by the company
then, it is seen as valid consideration
DOC for medical professionals
DOC for medical advice
the standard of a reasonable person enjoying the skill which he claims to possess
magnitude of risk - ie inform patients of all MATERIAL risks and all reasonable alternatives
what does “non-justicable” mean?
give an example
decisions that cannot be reviewed by the court (thus should only be decided by parliament or the executive)
eg: royal prerogative powers, prerogative of mercy, public policy direction taken by govt (eg funding of local authorities)
What is the standard used when the courts are trying to interpret a provision of a contract?
the meaning which the doc would convey to a REASONABLE person with the same background knowledge of the parties at the time of the contract
(no need to look into pre-contractual negotiations!)
When does a floating charge become fixed?
A floating charge does not require the assets to be specified at the time the charge is created and allows the company to continue using the assets in the normal course of business. This type of charge becomes “fixed” only at the point of enforcement, typically if the company defaults on the loan.
What is:
mortgage
fixed charge
equitable mortgage
A mortgage typically involves granting a security interest in real property.
A fixed charge requires specifying the assets at the time of the agreement and restricts the company from disposing of the assets without the creditor’s consent, which is not suitable for assets needed for day-to-day operations.
An equitable mortgage might be possible through an agreement or by depositing title deeds with a lender. However, this is less common in commercial contexts and generally less secure than a legal mortgage.
contracts for a minor
- are they enforceable?
- if it is a non-necessary service, until when is it enforceable?
- what is an example of a non-necessary service
- yes but only if they confer a benefit on the minor
- until it is repudiated BY the MINOR
- contract with a sports agent/ manager
Former member of UK parliament (ceased being MP over 1 year ago) - what kind of CDD?
at least standard CDD
because since it is over 1 year ago, the MP is not classified as a PEP
Under Rylands -
- should the thing that escapes occur naturally or non- naturally?
- should it be brought onto the land?
- should the accumulation constitute a non-natural use of land?
- is the forseeability of the damage at the time of escape required?
- give an example of what will NOT be rylands
- non- naturally
- yes, and accumulated
- yes
- yes
- if you have a water tank stored in your building basement and the pipe leaks and the leaking water ruins your neighbour’s property. this is because the facility to supply water (water tank) is a natural use of the land (basement). also, you are not “accumulating” water, but rather arranging an adequate supply to meet the needs of the building tenants
- what kind of benefits is the solicitor obligated to inform the client about?
- what should the solicitor do with the benefits?
- must account for any FINANCIAL benefits received as a result of their instructions, except where client agreed otherwise
- they must either:
- pay the benefit to the client; or
- off set the benefit against fees; or
- obtain clients CONSENT to keep it
PT 4.1 SRA COC
just informing the client of the benefit is not enough!
If your client requests a detailed assessment re disputed fees - who will hear the case?
Costs Judge in the Senior Court Costs Office (part of HC)
Which bills need HoL approval?
- prolonging the parliament beyond 5 years
- private bills
- bills which start at HoL
- bills sent to HoL less than 1 month before the end of a session
What is a private bill?
they only change the law as it applies to specific individuals or orgs, rather than the general public
if you receive a privileged doc of the opposing party accidentally - can your client rely on it?
maybe, subject to the discretion of the court
Multi Track
1. What is done in the Cost and Case Management Conference?
2. What is the Costs Management Order based on?
- Court will consider the budgets made by the parties and make a Costs Management Order
- Procedures involved in each step of the proceedings
When can a summary judgement be made?
After D files an AoS or defence (either) or… at any other time with the court’s permission
When is an application for strike out submitted?
when there is no REASONABLE GROUND for defending a claim
(dont confuse with summary judgment: where there is no reasonable prospect for defending the claim and there is no other compelling reason why the claim should be disposed of at a trial)
Disputes
- When do you serve a “notice to prove”?
- When should it be served?
- When you want to admit a UNCERTAIN document at trial (eg an alleged defective works statement), but could not do it earlier (before the deadline for the exchange and service of a witness statement). At trial, the burden is placed on the maker of the statement to prove the authenticity of the doc.
- either by last date of serving witness statements or within 7 days of disclosure of the document, which ever is later.
When can a default judgement be set aside?
If D can show a real prospect of defending the claim or there is some other good reason
This is usually accepted when there is some admin oversight in updating the company’s reg. address to receive docs.
