Mixed Set 3 [FLK1] Flashcards
Are ECtHR judgements binding on national courts?
Are ECtHR judgements binding on Member States?
No
Yes (ie binding on national govts)
In CDD, when do you carry out regular CDD + enhanced ongoing monitoring?
where business relationship/ transaction is with a person who is established in high risk 3rd world country
When you have questions about an expert’s report:
- can you contact the expert directly without the court’s permission if you want to challenge the expert’s assumptions?
- up to what standard should your questions to the expert be?
- for what all experts are written questions allowed?
- by what date should the questions be raised?
- who should expert’s responses be shared with?
- what happens if expert does not respond?
- yes, you can put written questions directly
- they must be proportionate and for the purpose of clarifying the report
- experts appointed by the other party/ joint single expert
- within 28 days of receipt of the expert’s report
- responses become part of the report and must be shared with all parties
- the court MAY direct that the expert’s evidence cannot be relied upon at trial, either in whole or in part, and/or order that the expert’s fees be irrecoverable by the instructing party.
In Carbolic Smoke Ball - was the reward to the advert considered a unilateral offer and enforceable?
Yes
This is because adverts are usually ITT, EXCEPT when it is directly from the manufacturer
Further, it was NOT an advertising puff as it came with a money-back reward
Thus, where there is an offer for a reward + completion of the specific task = binding unilateral offer (there is no need for communication). Here, acceptance of the unilateral offer is through performance.
Can courts examine parliamentary proceedings? What doctrine does this come under?
No, they cannot
The doctrine of Parli. Supremacy (incl. freedom of speech and the R for each house to manage its internal affairs w/o external interference)
Which all legislatures in the UK need Royal Assent before a Bill becomes law?
Wales
Scotland
N. Ireland
Tort
When is a duty of care imposed for omissions?
Generally - there is no DOC to act (therefore you will not be liable for an omission to act)
Exceptions:
- where you assume responsibility of another (eg doc-patient, fiduciary duty etc), then you have a duty to act positively
- when you intervene despite there being no duty, then you have a duty not to make matters worse
- if you are in a position of control and you reasonably foresee the likelihood of damage being caused to someone in close proximity and you fail to take reasonable care in the exercise of that control (eg police not letting prisoners escape and cause damage)
What is the principle of ultra vires in CA 2006?
No act (eg a contract) can be questioned on the ground of a lack of capacity in the company’s constitution
eg if a director is not authorised to sign a contract acc to the AOA but signs it anyway, the contract will still be enforceable as the supplier acted in good faith and had no reason to know about the director’s authority limits
When a rugby player gets injured, can the defence submit “volenti” as a defence?
Yes, as pro rugby players (contact sports) are specifically aware of the risk of severe injuries (eg broken nose) that can be sustained during normal play and accept it
Where do you appeal next and against what?
- D pleads “not guilty” and is convicted in Mag Court
- D pleads “guilty” and is convicted in Mag Court
- D can appeal sentence/ conviction/ both - must appeal to CC
- D can appeal sentence - must appeal to CC
When do you plead “non est factum” ie not my deed?
when a person signs a document under the mistaken belief that it significantly differs in nature from what it actually is, effectively nullifying the deed’s binding nature
the plea follows a party to void a contract if it can be demonstrated that the mistake was made despite all reasonable precautions being taken to understand the document’s nature
A company must send its members annual acc + report within 9m of the end of the relevant accounting period, or earlier if annual acc and reports were filed with CH before the 9m deadline.
Does it matter if the member owns under 5%? Do they still get a copy of the annual acc + report??
Doesn’t matter how much % they own
They get the docs as long as they are a member
Is the decision of the Legal Ombudsman binding?
If yes, on who?
And who can enforce it?
Yes
It is binding on the parties
It is enforceable by HC or County Court
- Exemplary damages
- Punitive damages
- Liquidated damages
- Unliquidated damages
- awarded when D’s conduct is WILLFULLY oppressive and malicious
- intended to punish D for egregious WRONGDOING and to DETER others from similar actions
- applies when contract specifies that X amount must be paid as damages in case of breach of contract
- are compensatory damages that are not pre-determined (in the contract) and are determined by the court - they are awarded to compensate C for actual loss suffered
What does restitution mean?
What is reliance loss?
Restoring the party to the position they were in before the contract
Compensation for losses incurred due to reliance on the contract
When a public body makes a decision about something, do they have to give reasons for their decision?
What is the standard required for their decisions?
Can they alter their reasons later?
Yes
The reasons must be CLEAR and DETAILED
No option to add reasons later (if those reasons are challenged in court)
What are the legal requirements associated with obtaining a search order?
Applicant must provide:
1. Undertaking in damages
2. Immediate commencement of proceedings
3. Full and frank disclosure
Final divided
- What res is required?
- Who recommends dividends? SH or Directors?
- Can SH exceed the recommended amount?
- What are the SH powers?
- Can SH declare dividend without director approval?
- When does the final declaration of dividends occur?
- OR
- Directors
- No
- Approve/ reduce/ reject dividend recommended by directors (but cannot exceed recommended amount)
- No
- Approval occurs the GM, after the recommendation from the directors
Common law - 4 requirements to ensure workplace safety
- provision of suitable and safe equipment
- maint. of safe work environment
- establishment of a safe system of work
- ensuring staff are adequately trained and skilled
Can you submit a Request for Further Information to the defendant’s defence response if it is ambiguous?
Yes
Under common law, what are the requirements to show that an exclusion clause is valid?
the clause must be part of the contract + clause should strictly cover the type of breach mentioned ie it cannot be a vague sentence
(note: this has nothing to do with consideration)
In civil claims, who has the burden of proof?
C
C must prove on the balance of probabilities
(note: for contributory neg, the burden of proof is reversed and D must prove)
If an employer expressly prohibits an employee from doing something, and the employee does it anyway during the course of their employment and someone is injured - will the employer be vicariously liable?
Yes
To succeed under a claim under Contracts (Rights of Third Parties) Act 1999, what are the requirements?
- 3P is explicitly identified in the contract by name, as a member of a class, or fitting a particular description
OR
- contract says 3P may enforce the term
OR
- 3P appears to confer a benefit from the contract
Disputes
Once the court conducts a provisional assessment for costs - if you wish to challenge the provisional assessment, what do you do?
Either party may request an oral hearing to challenge the assessment within 21 days of receiving the points of dispute*. If no request is made, the provisional assessment is binding on both parties.
*Points of dispute are issued following the provisional assessment
Are you eligible to get stamp duty relief in a company acquisition?
Relief may be available for acquisitions that are part of a reorganisation involving the acquisition of the entire issued share capital of the target company, where the consideration consists solely of the issuance of shares by the acquiring company. This relief is contingent on the transaction being undertaken for bona fide commercial reasons and not part of any disqualifying arrangements. The shares issued should mirror the shares acquired both in number and class. HMRC’s approval for stamp duty relief is required, and if granted, can significantly reduce the transaction costs associated with such corporate reorganisations.
Where should the HRA claim be brought:
- Welfare benefits
- Contract or civil wrong (eg PI, wrongful arrest, false imprisonment)
- Related to decision of public authority
- Appeal tribunal
- High Court or County Court or Sheriff Court or Court of Session
- Judicial review in HC
CF against an individual is typically served at the D’s usual/ last known place of residence. However, if that is no longer valid, where do you serve it?
Take steps to find out their latest place of res/ place of business
If you cannot ascertain that too - serve it at D’s last known address
What are the requirements to establish wrongful trading?
How can you defend this?
- company enters insolvent liquidation
- director or any involved party knew/ ought to have known, that there was reasonable prospect of avoiding insolvent liquidation
Must demonstrate that you took every possible step to minimise potential losses to the company’s creditors
What happens if C applied for a summary judgement before D files a defence?
Then D need not file the defence until after the hearing of the application for summary judgement
What does ATE cover
Clients legal costs +
potentially opposing party’s costs if C loses
(usually with CFA)
What is BTE
taken out before the client becomes involved in litigation + provides indemnity for cost of any legal fees incurred as a result of future litigation
BTE premiums very unlikely to be recoverable from the other side where policyholder successful
When you have “reasonable endavours” provisio in the contract, are you obligated to accept non-contractual performance?
No, not unless expressly stated in the contract
Can you (as a solicitor) chit chat with your friends about stocks? Will you breach FSMA?
Yes, you can
you will not breach FSMA if your advice is given in a non-business capacity or personal capacity
Is land a specified investment under RAO?
No
So you can give advice in relation to “buy to let” properties - this is NOT regulated
