Mixed Set 4 [FLK1] Flashcards
In judicial review - what does it mean when someone is acting ultra virus?
it means that a local authority (or administrative agency) has gone beyond the powers conferred to it by law
Eg by statute if the local authority can only direct buses in X area, but they instruct busses to go to X city instead.
Disputes
Can an appellate court impose conditions when granting permission to appeal?
Yes
Eg they can impose financial conditions (in the form of an escrow payment for eg). This condition will serve as a financial guarantee ensuring that there are adequate funds available to cover potential costs or damages, should the appellant lose the appeal
What are the 2 things you need for alteration of AOA?
- special res of members
- must be in the best interests of the company as a whole
Secondary victim
If your s/o was injured at work, then came home, and you watched him die at home a month later from the injury then you developed PTSD - are you a secondary victim?
No
the workplace accident and death at home are 2 separate events (despite being causally connected)
Primary/ secondary victim
what does “accident” mean?
unexpected & unintended event in which injury/ risk of injury is caused by violent external means
eg: road accident, accident in the workplace
What lies at the heart of the common law system?
principal of stare decisis - cases with similar facts and scenarios are decided in the same way
Under this, lower court adhere to the legal precedents set by the higher court
Is the unmerchentability of goods enough to frustrate a contract?
yes (eg wine becoming so fermented that you cannot sell)
Complete destruction is not necessary!! substantial alteration in a condition or purpose is enough.
Taylor v Caldwell & Asfar v Blundell
Frustration occurs when:
- performing the contractual obligation is impossible
- illegal
- radically diff from what was originally undertaken by the parties
can you recommend a life insurance policy?
No
this is a regulated activity and in violation of the SRA Financial Services (Scope) Rules
You cannot rely on the DPD exemption unless authorized by FCA
When you are given a parking ticket, and the back of it contains an exclusion clause - is the clause valid?
No - this is about timing of acceptance of the contract, not communication of terms! (Thorton v Shoe Lane)
You ACCEPT the contract when you enter the parking (when you activate the censor to enter the parking), and the terms (on the back of the ticket) are only given to you once the ticket is issued at the machine
So, the printed conditions are issued AFTER your contract is concluded (concluded at entry), thus, you are not bound cus the terms are communicated too late to be considered effective
When do you undertake EDD?
- if the transaction is complex
- if it is unusually large for the FIRM/ CLIENT (either)
- unusual pattern of transactions
- transactions have no apparent legal/ economic purpose
Disputes
If its 10K, which court?
Small claims
Over 10K, you look at fast track
in small claims - no expert cus it is disproportionate to the amount in dispute
under the pre action protocol for clinical disputes, when should you provide supporting docs if you receive a letter of notification?
if there is sufficient info re serious adverse outcome/ consequence
the request must be specific about what docs are required
docs to provide = guidelines, policies, protocols, analysis
Common law mis rep & misrep act - how are damages assessed?
On a tortious basis - ie putting the parties back in a position they were in before the misrep
they are not assessed on a contractual basis !!! ie expectation loss
Should a Minister be a member of HOC or HOL?
Yes, either, by convention
If a Dr. breaches DOC, can the patient claim for loss of income?
No, as that is pure economic loss
Dr.’s DOC is only re their duty (ie to help the patient get better)
Who heads the Ministry of Justice?
Lord Chancellor & Sec. of State for Justice (same person)
Disputes
What are the 2 rules for serving notices?
1. General rule
2. Under 5 days
- typically it is “clear days” ie don’t count:
- the day the period begins; and
- the day notice is served.
BUT, count weekends! - if it is under 5 days, then don’t count:
- the day the period begins;
- the day notice is served; AND
- weekends!
- What costs is the client obligated to reimburse the solicitor for?
- In whose favour are issues related to costs resolved?
- All costs impliedly or expressly approved by the client EXCEPT where they are an unusual amount and the solicitor did not communicate this to the client.
- any doubt over the reasonableness of costs will be solved in the favour of the receiving party.
For PI, when do you use the claims portal?
- if under 25K (on a full liability basis including pecuniary losses but excluding interest)
- PI occurred INSIDE E&W
N/A for RTA PI or mesothelioma
In a partnership, what are 2 things that need unanimous approval?
What kind of approvals do other “ordinary matters” require?
Name change & change of partnership business
Simple majority
Note: each partner has 1 vote (voting power has nothing to do with $ of contribution)
Pick: IC or employee
Hirer can:
- hire the person
- dismiss the person
- give the person directions, tell them what to do and where to do it
Hirer does not:
- have the person on their books
- does not pay tax
- nor national insurance
Employee
Because give the person directions, tell them what to do and where to do it
What is the duomatic principle?
If all members of a company attend a GM assent to a matter, the matter will be approved even if there is no formal resolution passed at the meeting (eg by way of written resolution).
Simplified DD
Specific situations where the risk is deemed low, such as:
- Transactions involving listed companies subject to disclosure requirements.
- Public administrations or enterprises.
- Customers who are financial institutions or public authorities in the European Economic Area (EEA).
However, ongoing monitoring is still required to ensure that the risk remains low.
Can a company be bound by a contract it enters into if the director of the company/ agent of the company exceeded their powers when entering into the contract?
Yes, the company is still bound.
It does not matter if the counterparty knew about the director/ agent’s limits!
This is absolute.
Just being “aware” is NOT considered “bad faith”.
Note: AOA limitations on the director/ agent’s powers does not change this stance - the company will still be bound.
EDD
Specific scenarios include:
- Customers from high-risk third countries.
Politically exposed persons (PEPs), or those who have prominent public functions, and their family members or close associates.
- Situations where the transaction is complex, unusually large, or without apparent economic or lawful purpose.
- When the customer is not physically present for identification purposes.
- Any other situation that indicates a higher risk of money laundering or terrorist financing.
- Obtain additional information about the customer and the beneficial owner.
- Obtain additional information on the intended nature of the business relationship.
- Take additional measures to verify the documents supplied or ensure that the verification of the customer’s identity occurs at an appropriate time and frequency.
- Conduct enhanced ongoing monitoring of the business relationship.
- Literal rule
- Golden rule
- Mischief rule
- Purposive rule
- Even if it is absurd
- To smooth out literal rule and remove absurdity
- What is it trying to remedy?
- What is the purpose of this as a whole?
In a LLP, who are the members liable to? Are they directly liable to the LLP or its creditors?
To the LLP only upto the limit defined in the partnership agreement
What is the exception to rights of audience under the reserved activities?
If you (trainee/ paralegal) instructed by a solicitor/ barrister + are assisting with proceedings in CHAMBERS of county court/ HC/ non- reserved fam proceedings, it is OK as you will be exempt from authorization.
Who is a minor?
Anyone under 18
Public Bills which originate in HOC
- Does HOL have to approve them?
- How long can HOL delay?
- What happens if HOL delays beyond that?
- Yes
- 2 parliamentary sessions/ 1 year
- HOC can reintroduce the bill at the next session without HOL approval and submit it for Royal Assent
Public company
- how many directors
- how many secretaries?
- What % of shares must be paid up?
- Min 2
- Min 1
- 25%
If a husband + wife take out a mortgage to pay out the husband’s CC loan and the wife finds out about his affair - can the affair vitiate the mortgage?
Yes
His concealment of the affair is seen as undue influence against the wife as it is a material fact thus it will vitiate the mortgage
A contract was the supply of goods via the Suez Canal was entered into. A war breaks out and thus the ship cannot sail through the Suez Canal. Is the contract frustrated?
Depends but most likely no because the peformance of the contract is just more difficult, not impossible.
If only becomes an issue if the contract states that time is of the essence or the goods are perishable.
Fireworks are supplied by a local authority in their yard. But, the next day, they are not properly cleaned up. A child finds the firework, takes it home, and uses it incorrectly. The firework sets on fire and the child suffers severe burns. Is the local authority responsible for the child’s injuries?
Yes.
The risk that a person might be harmed by the fireworks was reasonably foreseeable; it does not matter that the method/ extent by which the boy was harmed was arguably unforeseeable/unusual.
How can a treaty be ratified?
It should be laid before parliament for 21 SITTING days + neither HOC nor HOL must object. The, govt can proceed to ratify the treaty.
How do you ban a public procession?
The chief constable of the area’s police force has the power to ban public processions for up to 3 months by applying to the local authority for a banning order, which needs subsequent confirmation from the Home Secretary.
Is a letter of comfort legally binding? Or does it intend to enter into legal relations?
No to both
A letter of comfort is a statement of fact, rather than a contractual promise of conduct
SC is the highest court of appeal for which jurisdictions?
E, W and N.Ireland
Not Scotland!
Scotland’s supreme criminal court?
The High Court of Justiciary
Can ATE premiums be recovered from the paying party?
Generally - no
Exception - can be recovered only for clinical negligence claims
What is a quashing order
A declaration of invalidity
