Mixed topics

Question 1

Can a promise to perform an existing obligation amount to consideration?

Answer 1

Yes, if it was given freely, and the party derives a practical benefit from it.

Question 2

What is the time limit for filing a judicial review?

Answer 2

Generally, 3 months is the max time limit but it should be filed promptly.
Statutory exceptions apply:
1. 6 weeks (from the decision) for decision made by Secretary of State or local planning authority.
2. 30 days (from when the claimant first knew or ought to have known) for certain procurement decisions (by which public authorities outsource public services

Question 3

Can a partner sell off their share to an outsider?

Answer 3

No, if the partnership agreement is silent on the point then Sec 24 (implied financial terms) of the Partnership Act will apply where unanimous consent of all the partners is required to introduce a new partner.

Question 4

What are rights of audience?

Answer 4

Reserved legal activity (only authorized persons have the right) which gives the solicitor rights to appear and address a court. It applies to all lower and high courts except: Small Claims Court, Tax and other Tribunals and certain family proceedings.
A court has a discretionary power to grant rights of audience.

Question 5

What is the Royal Prerogative of Mercy?

Answer 5

historic royal prerogative reserved for the Monarch.

Now, the Secretary of Justice or Lord Chancellor (same person) can recommend the use of this to the Queen in civilian cases and the defence secretary makes the recommendation in military cases.

Question 6

What is the extent of a party’s duty of care to their neighbor?

Answer 6

duty towards a specific individual and towards a group of individuals (not the whole world at large)

Question 7

What kind of a statement should a Minister make about a bill to be compliant with HRA?

Answer 7

MUST make a written statement that he considers the bill to be compatible with the Convention rights
OR
he is unable to make such a statement but the government wishes to proceed with the bill anyway

Question 8

Can a third party have rights under a contract?

Answer 8

Yes but ONLY IF the party is expressly identified in the contract by name, as a member of a class or as answering a particular description

Question 9

What is the difference b/w an indemnity and a guarantee?

Answer 9

Indemnity involves an obligation which exists independently as it does not depend on any person

A guarantee cannot exist without a primary obligation by a third party to the beneficiary of the guarantee

Question 10

How is the Parliament dissolved?

Answer 10

Automatically dissolved 25 days before polling day.

Also usually prorogued or adjourned beforehand

After this, the Queen may issue the proclamation summoning the new Parliament

Question 11

When can a payment not be recovered for economic duress?

Answer 11

When a party affirms it and pays w/o protest (based on case authority)

Question 12

What happens on the death of a partner?

Answer 12

The partnership automatically dissolves on the death of a partner and their share is sold as part of the dissolution process.

Any profits made after death are kept on trust for the partnership

Question 13

Can an express disclaimer of responsibility defeat an assumption of responsibility for a claim of breach of duty?

Answer 13

Yes

(Hedley v Heller case: an express disclaimer by a bank excluded its liability for breach of duty)

Question 14

What are non party costs?

Answer 14

when funder pays the cost of the successful opponent

Question 15

Can the term of a Parliament be extended?

Answer 15

Yes, for 2 months in the case of a national or other emergency.

Order must be approved by both Houses
+
PM must set out the reasons for the delay in the standing order

Question 16

What are the ‘same objective’ conditions to get past a conflict of interest?

Answer 16

1. informed consent by both parties to continue acting for them (evidenced in writing)
2. safeguards in place to protect client’s confidential info
3. satisfied as to the reasonableness for acting for both clients

Question 17

What conditions need to be met for the offence of tipping off?

Answer 17

1. a disclosure was made
2. disclosure will prejudice the investigation
3. info on which disclosure was made came to you in the course of business in the regulated sector

Question 18

What is the principle of reflective loss?

Answer 18

It is the loss of individual shareholders that is inseparable from general loss of the company.

The rule against recovery of reflective loss states that there should be no double recovery, so a shareholder can only bring a derivative action for losses of the company, and may not allege suffering a loss in a personal capacity for a personal right

Question 19

Are preventative actions of the police allowed under the POA?

Answer 19

No

Only arrest is allowed for imminent breach of peace

Question 20

What is abatement?

Answer 20

A form of self help remedy where the claimant can take remedial measures to alleviate a nuisance

Question 21

When do courts imply a term as a matter of fact, in a contract?

Answer 21

When it wants to give effect to the presumed intentions of the parties (not because it is reasonable)

Question 22

What is the limit for carrying forward a capital loss?

Answer 22

Max 5 million
+
50% of the gain in excess of the 5 million

Question 23

To which court are LL and tenant disputes allocated?

Answer 23

if b/w 1,000-25,000: fast track of county court

claims by tenant under 1,000 or less for repairs or other works: small claims track of the county court

Question 24

When can a solicitor bring a claim against a client for non payment of bills?

Answer 24

1 month after bill of costs was delivered

Exc: immediate action can be brought if the client is going bankrupt, leaving E&W or about to commit any other act that would delay the solicitor from obtaining payment

Question 25

When should a change in membership of an LLP be reported to Companies House?

Answer 25

Appropriate forms must be submitted within 14 days

Question 26

Which characteristics are included as protected characteristics?

Answer 26

age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation

NOT class

Question 27

What is the time period for giving notice for a procession?

Answer 27

6 days clear written notice (excluding first and last day ) prior to the date of procession

Exc: if it is not reasonably not practicable to do so (eg: reaction to sudden political event)

Question 28

What is the time limit for a Co to register allotment of shares?

Answer 28

2 months (internally)

1 month for Cos House (allotment of shares form)

Question 29

What is the test of remoteness w.r.t nuisance?

Answer 29

reasonably foreseeable by the defendant at the time of the breach of the duty

Question 30

What is the standard for an exclusion clause in business contracts?

Answer 30

It should be reasonable (different for consumer contracts)

Question 31

Can a party be added to a claim after the expiry of limitation period?

Answer 31

Yes.

The only way to add a new party after the limitation period expires is by application to the court to disapply the limitation period. The court does have discretion to do so

Question 32

What is a defense for a claim under the CPA?

Answer 32

If a good is not supplied in the course of a business, and is not produced it with a view to profit

eg: goods for charity

Question 33

Can costs be recovered from a claimant who does not issue a claim?

Answer 33

The general position is that following compliance with the appropriate protocols, when resolution is not achieved but the claimant decides not to continue with the claim, it is unlikely that the defendant will be able to recover any costs

Question 34

When are sanctions generally imposed on a party?

Answer 34

If a party fails to comply with the directions order, the court usually will not impose a sanction unless the non-defaulting party makes an application for an unless order specifying the sanctions that may be imposed and the defaulting party fails to comply with the unless order.

In that case, the court may strike out a defence or claim, impose costs, debar the defaulting party from relying on the evidence involved, and so on

(other sanctions are only imposed AFTER an unless order)

Question 35

What is the timeline after written evidence in support of an application for summary judgment is filed?

Answer 35

If an applicant includes written evidence in support of an application for summary judgment, the hearing can be no sooner than 14 days from the date of the application, the defendant may serve evidence in response up to seven days before the hearing, and the claimant may serve a reply no sooner than three days before the hearing

Question 36

What is NOT a protected characteristic under the Equality Act?

Answer 36

Race

Question 37

What kind of advertising is not allowed by a firm?

Answer 37

A solicitor or firm must not make unsolicited approaches to members of the public to advertise its legal services. This means that a firm cannot advertise its services in a targeted or intrusive way.

Sending letters to particular people (the victims of the accident) based on information known about them is a targeted approach and is therefore prohibited

Question 38

How does a defendant dispute the jurisdiction of the Court?

Answer 38

A defendant who wishes to dispute a court’s jurisdiction must tick the relevant box on the acknowledgment of service form indicating they wish to dispute jurisdiction, supported with written evidence, within 14 days of the deemed date of service.

The defendant must not file a defence until after the court has heard the application. Filing a defence is likely to be taken as submission to jurisdiction that would negate the challenge. If the defendant’s application fails, they will be required to file a defence at that point, probably within 14 days.

Question 39

When is a change of registered office effective for a Company?

Answer 39

A company may change its registered office by giving notice to the Registrar of Companies. The change takes effect on registration of the notice by the Registrar.

there is a 14-day period after registration when a document will be validly served if sent to the previous registered office

Question 40

Can a defendant argue a lack of mitigation by a Claimant for taking private medical treatment?

Answer 40

By statute, where a claimant incurs the cost of private medical treatment, the defendant cannot argue that they ought to have mitigated their loss by accepting treatment provided by the National Health Service. (The costs must, of course, be both necessary and reasonable).

Question 41

Can a partner leave a partnership early?

Answer 41

If the partnership agreement provides that the partnership is to last for a fixed duration, a partner cannot leave before the end of the fixed term.

However, the partnership agreement can be changed if all of the partners agree to the change.

Partners in a partnership with no term can leave anytime by giving notice, and the partnership will dissolve

Question 42

What is a regulated activity?

Answer 42

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.

Question 43

What is an authorised persons exclusion?

Answer 43

Under the acting through authorised persons exclusion, a solicitor can arrange or act as agent with respect to specified investments if the client receives advice from a person authorised by the Financial Conduct Authority and the solicitor merely assists the client in acting on this advice

Question 44

What is a writ of control?

Answer 44

A writ that commands, requires or authorises a High Court enforcement officer to take control and sell enough of a debtor’s goods in order to obtain the funds to satisfy a money judgment

Going to the HC also earns interest and its not available at the CC

Question 45

What are the requirements of a valid exclusion clause?

Answer 45

For an exclusion clause to be valid, it must fulfil both common law and statutory rules. The common law rules require that
(1) the clause has been validly incorporated into the contract (via signature, notice, or a course of dealings between the parties)
(2) the wording of the clause covers the loss suffered.
(3) The exclusion must have been brought to the attention of the parties before or at the time the contract was concluded

Question 46

What is an exception to the past consideration is not acceptable rule?

Answer 46

If work is done at the request of the promisor, and there was an implied understanding that payment would follow, a subsequent promise to pay is seen as merely fixing the amount, even though the work was done before the promise was made.

Three conditions must be met for this exception to the past consideration rule to apply:
(1) the act constituting the consideration must have been done at the promisor’s request;
(2) there must have been an understanding between the parties that the act would be remunerated; and
(3) the payment (or other benefit) must have been legally enforceable had it been promised at the same time that the act was performed.

Question 47

Can a party carry on with the performance of a contract that is anticipated to be breached?

Answer 47

An anticipatory breach of contract gives the innocent party the right to terminate the contract immediately, or to carry on with their obligations under the contract and then sue.

This is because repudiation by one of the parties to a contract does not discharge it unless the repudiation is accepted by the other party. However to carry on with the contract, the innocent party must have a legitimate interest in doing so.

Question 48

Are restraint of trade clauses always void?

Answer 48

There is a presumption that restraint of trade clauses are void, unless they can be shown to be reasonable.

What is reasonable will be determined on a case-by-case basis, but the party seeking to rely on the clause must demonstrate that it is no more than is reasonably necessary to protect a legitimate interest.

Examples of legitimate interests could be trade secrets, confidential information, or customer lists/contacts.

Question 49

What is the difference b/w assault and battery?

Answer 49

Assault is an act which causes reasonable apprehension of unlawful force (apprehension of a battery)

Battery is the intentional direct application of unlawful force (no need for actual harm to occur; only )

Assault: Apprehension
Battery: Force

Question 50

What is the standard for adjustments under the Equality Act?

Answer 50

The standard is that firms must provide reasonable adjustments to ensure disabled clients and employees are not placed at a substantial disadvantage

Question 51

Is payment of a smaller sum considered sufficient consideration?

Answer 51

Generally, payment of a smaller sum than due will not be sufficient consideration for a promise by a creditor to discharge a debt, with some common law exceptions,

for example payment at an earlier date or payment by a third party

Question 52

A defendant has received a Notice of Proposed Allocation to the Multi-track together with a Directions Questionnaire.

How long does the defendant have to return it to the court?

Answer 52

The order normally allows 28 days for the parties to complete and return the Directions Questionnaire to the court.

The case management powers of the court would permit the court to allow longer if it felt that was appropriate, but this would be unusual

Question 53

Is a contract entered into by misrepresentation void?

Answer 53

Where misrepresentation is proved, the contract is voidable at the election of the innocent party

Question 54

What is the golden rule?

Answer 54

the golden rule is used when use of the ordinary meaning of words leads to absurd results

Question 55

An Act of Parliament has given the Secretary of State the power to amend other Acts of Parliament by passing secondary legislation.

How is this power best described?

Answer 55

Henry VIII power (proper word for delegated power)

Question 56

Can a bill rejected by Lords be passed?

Answer 56

If the House of Commons passes the Bill again in the NEXT session of Parliament and the House of Lords again rejects it, it can still be sent for Royal Assent (assuming enough time has passed between the successive sessions in the Commons).

This answer reflects the Parliament Acts 1911-1949, which allow a bill to become an Act of Parliament even if it has been rejected twice by the House of Lords

Question 57

What are the functions of the Privy Council?

Answer 57

The best explanation is that the Privy Council approves some decisions made by the government, either under the royal prerogative or under powers granted to it by statute. Although once of great importance, the Privy Council now plays a purely formal role within government. Certain decisions and legislation under the royal prerogative or under powers granted by statute need to be approved by the Privy Council. Examples include passing Orders in Council or granting a Royal Charter to a new institution or body

Question 58

How is a treaty ratified in the UK?

Answer 58

Before it can ratify the treaty, the government must lay the treaty before the House of Commons and House of Lords. The power to ratify treaties is a royal prerogative power recognised by the common law.

By passing an Act of Parliament, Parliament can either abolish or regulate how a royal prerogative power can be exercised, and Parliament has passed a statute requiring the government to lay a treaty before the House of Commons and the House of Lords, who then have 21 days to vote against the treaty

Question 59

What is the constitutional position on deploying forces?

Answer 59

the decision to deploy is a royal prerogative power, but the consent of the House of Commons is required by constitutional convention.

The power to deploy the armed forces abroad is a prerogative power exercised by the Prime Minister, who consults the Cabinet. However, once the government has decided to deploy the armed forces, by constitutional convention, they are required to seek the approval of the House of Commons

Question 60

What is the Salisbury Convention?

Answer 60

applies when a government bill involves a commitment made by the government’s party in their manifesto

Under the Salisbury Convention, the House of Lords will grant a Second Reading to a bill as a matter of course if the bill is implementing a commitment made by the party elected into government in their manifesto

Question 61

The government introduces the Homebuilding Bill into the House of Commons. The provisions of the Bill apply only to England.

Which of the following best describes the procedure that will apply to the Bill?

Answer 61

The Bill may be voted on by MPs representing any of the UK constituencies. Despite the fact that the Bill applies only to England, any MP in the UK Parliament can vote on the Bill

Question 62

What is the doctrine of implied repeal?

Answer 62

Under the doctrine of parliamentary sovereignty, Parliament is not allowed to bind its successors. This means that should two Acts of Parliament dealing with the same subject matter conflict, the courts are bound to give effect to the later Act of Parliament, as that is the latest expression of Parliament’s intention. This is known as the doctrine of implied repeal

Question 63

What is the enrolled bill rule?

Answer 63

Under the Enrolled Bill Rule, all the courts can do when faced with a challenge to the validity of an Act of Parliament is to check the parliamentary roll to determine whether the bill in question has or has not been passed by Parliament. If the bill has been passed by Parliament and received the Royal Assent then the courts must give effect to it. The courts cannot investigate the procedure by which the bill was enacted by Parliament

Question 64

What is the limitation period for a judicial review of a local council’s action?

Answer 64

3 months

Question 65

What are limited rights under the ECHR?

Answer 65

Limited rights under the ECHR are rights that can be restricted only under the circumstances described in the ECHR article itself

Question 66

What test is used to decide standing under HRA?

Answer 66

The victim test

(sufficient standing test is for judicial review)

Question 67

What happens if there is conflict between retained EU law and legislation enacted before the end of the transition period?

Answer 67

the retained EU law will prevail

Question 68

Can devolved legislatures amend or repeal retained EU law?

Answer 68

The devolved legislatures can amend or repeal retained EU law that falls within their legislative competence, unless this has been explicitly prohibited by the UK government.

Question 69

Who would be required to consent to the abolition of the Welsh government and the Welsh Parliament?

Answer 69

he consent of the UK Parliament and the Welsh people at a referendum would be needed. The Welsh Parliament and the Welsh government were both created by an Act of the UK Parliament.

Ordinarily, the doctrine of parliamentary sovereignty means that Parliament can make or unmake any law whatsoever, meaning that the UK Parliament could, in theory, abolish the Welsh Parliament and the Welsh government without seeking the consent of any other institution. However, it has been stated that the Welsh Parliament and the Welsh government are ‘permanent’ parts of the UK’s constitutional arrangements and can be abolished only if the people of Wales vote to abolish those institutions at a referendum. This means that the consent of the people of Wales and the UK Parliament is required to abolish the Welsh Parliament and the Welsh government.

Question 70

What is a prohibited referral fee?

Answer 70

A ‘prohibited referral fee’ is the payment or receipt of referral fees in claims for damages following personal injury or death.

The Code also prohibits referral fees (and all payments relating to referrals or introductions) in respect of clients who are the subject of criminal proceedings

Question 71

Is providing a client care letter mandatory?

Answer 71

The SRA does not require a formal client care letter, but a solicitor must provide all required client care information to the client. Furthermore, a solicitor must give clients information in a way they can understand

Question 72

Can an undertaking by a solicitor always be in writing?

Answer 72

No. It can be verbal as well

Question 73

Can the CoA depart from its own decision?

Answer 73

The Court of Appeal is bound by its own decisions in civil cases but there are exceptions to this rule

In criminal cases the Court of Appeal has a generous discretion to depart from one of its own decisions where it is convinced that the case was wrongly decided

Question 74

Which UK institutions can exercise the prerogative power to enter a bilateral treaty?

Answer 74

The executive has the authority to exercise the royal prerogative without authorisation from the judiciary or Parliament.

The Prime Minister has the power to make and ratify treaties alone

Question 75

What kind of committees exist for passing a bill?

Answer 75

The committee stage for the passage of bills in the House of Commons can take place in one of two committees: a Public Bill Committee or a Committee of the Whole House

Question 76

Can collective responsibility be suspended?

Answer 76

the Prime Minister is able to ‘set aside’ or suspend collective responsibility, and this has happened at previous referendums. When this is done, ministers are able to campaign on different sides, meaning that they are allowed, unusually, to disagree with each other in public

Question 77

How is a treaty passed before the Parliament?

Answer 77

The power to ratify treaties is a royal prerogative power, but is regulated by a procedure laid down in statute.

Ordinarily, the treaty is laid, with either House of Parliament having 21 days to vote against the treaty. If a House votes against ratifying and the government still wants the treaty ratified, it can explain to Parliament why, and then the House of Commons has a further 21 days to vote against ratifying the treaty

Question 78

What is the majority required for an early election in Parliament?

Answer 78

under the Fixed-term Parliaments Act 2011, a general election will be held at an earlier time if at least 66% of MPs vote in favour of holding the early election

Question 79

How can ministers exercise powers under the royal prerogative?

Answer 79

Under the royal prerogative, ministers may make decisions which may need to be formally approved by the Monarch.

These powers are known as the ministerial prerogatives and are described as such because they are in substance exercised by ministers on behalf of the Crown.

For some ministerial prerogative powers, the final approval of the decision still rests with the Monarch, but this is a formality.

Question 80

Can the House of Commons pass a bill rejected by the Lords?

Answer 80

under the Parliament Acts 1911-1949, if the House of Lords rejects a bill that has been approved by the House of Commons and the House of Commons passes the bill in the following session, only for it to be rejected again by the House of Lords, the Bill can nevertheless be sent for the Royal Assent.

A year needs to have elapsed between the Bill being granted a Second Reading in the first session and being granted a Third Reading in the second session

Question 81

What grounds can a judicial review be based on?

Answer 81

illegality,
procedural impropriety,
unreasonableness, or
breach of legitimate expectations

Question 82

Where is an application to ban a procession made?

Answer 82

For a procession outside of London, the application to ban it has to be made to the local council

For a procession within Greater London or the City of London, the application would have to be made to the Home Secretary

Question 83

What is a remedial order regarding a DOI?

Answer 83

This is a form of secondary legislation which allows the government to amend or repeal legislation, including Acts of Parliament. For matters deemed urgent, ministers can make remedial orders that immediately become effective. However, the order must then be laid (that is, published) before both Houses, and it will cease to have effect if within 120 days, either House has not passed a resolution approving the order

Question 84

What happens to a bill that might be outside the legislative powers of a devolved Parliament?

Answer 84

Between a bill passing all of its stages in the devolution legislature and receiving the Royal Assent, the bill can be referred to the Supreme Court to determine whether the bill is within the legislative competence of the devolved legislature.

In Scotland, this reference can be made by either the Advocate General for Scotland, the Attorney General, or the Lord Advocate

Question 85

What is the Sewel convention?

Answer 85

The UK Parliament is sovereign and retains the power to legislate for Scotland, Wales, and Northern Ireland, even on matters that have been devolved to those nations.

However, under the Sewel Convention, normally the UK Parliament will seek the consent of the Scottish Parliament, Welsh Parliament, or Northern Irish Assembly before legislating for those nations on a devolved matter

Question 86

What kind of charges against a solicitor must be reported to the SRA?

Answer 86

The SRA Code of Conduct for Solicitors states that solicitors must notify the SRA promptly if they are subject to any criminal charge, conviction, or caution

Question 87

Where are summary offences tried and what are max punishment for these offences?

Answer 87

A summary only offence may be tried only in Magistrates’ Court

The maximum sentence that may be imposed in Magistrates’ Court for a single offence is six months’ imprisonment

Question 88

What is an automatic disqualification rule?

Answer 88

When the member of a public body has a financial interest in the decision at issue, they are automatically disqualified from being involved in the decision

Question 89

What are qualified rights?

Answer 89

these rights can be limited by the state in the circumstances outlined in the articles to the extent that is necessary and when pursuing the interests outlined-in this case, when it is in the interests of national security or the prevention of disorder or crime

Question 90

Do ministers need to be a member of any house?

Answer 90

yes either Lords or Commons

Question 91

How many officers and members of the company are required on incorporation of a private Co?

Answer 91

1
(members+Director; could be the same person)

Question 92

A man is the sole registered proprietor of the home which he lives in with his wife. The spouses’ marriage has broken down and the wife is seeking legal advice because she is concerned that her husband might sell the house.

How should the wife protect her position?

Answer 92

The wife must register a home rights notice on the charges register of the title.

The right of occupation enjoyed by a non-owning spouse or civil partner is not capable of being an overriding interest. Thus, that spouse or civil partner will register their home right as a notice on the registered proprietor’s register of title

Question 93

Do Board of Directors need shareholder approval for issuing new shares?

Answer 93

In companies incorporated after 2009, the board have authority to allot shares without seeking shareholder approval if the company has only one class of shares and there is no restriction to the contrary in the company’s articles.

The Model Articles have no such restriction

Question 94

Which creditors would be able to apply for the company to be wound up?

Answer 94

A creditor must be able to prove the company is insolvent to be able to issue a winding up petition.

A creditor can prove insolvency by either:
serving a statutory demand which is not paid within 21 days in respect of a debt of £750 or more,

or showing that they obtained a judgment, attempted to execute the judgment, and that the debt is not fully satisfied

Question 95

What must be filed with the Registrar of Companies following a change of Registered Office?

Answer 95

the only thing that must be filed at Companies House is a Change of Registered Office Address form

Question 96

What kind of contracts can a CS NOT enter into?

Answer 96

Commercial contracts

(CS can enter into admin contracts)

Question 97

What is the relevant period for preference before the insolvency of a Co?

Answer 97

The relevant time for a preference is within six months of the onset of insolvency
or
two years if the preference was made to a connected person

Question 98

What docs must be included while filing a Co’s accounts?

Answer 98

The only documents that must be included with the accounts of a small company are a profit and loss statement and a balance sheet which give a true and fair view of the company.

Medium and large companies must also include an independent auditor’s report,
a director’s report,
and a strategic report
(but these are not required for a small company)

Question 99

In which order are funds after a bankruptcy distributed?

Answer 99

Costs of the bankruptcy;
preferential debts (holiday pay due to employees, wages of employees due in the last four months,
and HMRC in respect of VAT, PAYE, and National Insurance contributions owed);
ordinary unsecured creditors,
postponed creditors (spouse or civil partner)

Question 100

How is a mortgage protected for registered land?

Answer 100

A mortgage is a burden on the land as it gives the mortgagee the right to repossess and sell the land in the event the borrower defaults.

For registered property, it is protected by a notice on the charges register

Question 101

What happens to a director’s shares on retirement from a Co?

Answer 101

On retirement, a director can keep their shares or transfer them to someone else.

However, the Model Articles give the directors an absolute discretion to refuse to register a transfer of shares

Question 102

Does a magistrate’s court have a jury trial?

Answer 102

No

Only Crown Court has jury trials
In some limited case the HC also has jury trials (defamation, fraud etc.)

Question 103

What does stare decisis mean?

Answer 103

Let the decision stand

Question 104

What does Noscitur a sociis mean?

Answer 104

This phrase stands for the doctrine that the company interprets a word it keeps.

when interpreting a statute, courts consider the words in the same section as the word in dispute - in other words, courts consider the context

Question 105

The Welsh Parliament has legislated contrary to the European Convention on Human Rights (the ‘ECHR’).

Who can strike the legislation down as being invalid on this basis?

Answer 105

The Supreme Court can strike down the legislation. If the devolved legislatures pass legislation that exceeds their law-making powers (including legislation that contradicts the ECHR), it will be struck down as invalid. The Supreme Court can make this declaration.

Question 106

A man stole a bicycle and was caught. He was charged with a single summary only theft offence.

If the man is convicted, which of the following is the maximum sentence the judge could impose?

Answer 106

A summary only offence may be tried only in Magistrates’ Court.

The maximum sentence that may be imposed in Magistrates’ Court for a single offence is six months’ imprisonment

Question 107

Created by statute, the Aeroplane Authorisation Authority is required to approve new models of aeroplanes in order for them to be allowed to fly in UK airspace. The Authority has rejected an application from a manufacturer for an aeroplane that has been allowed in most other major countries. It later emerges that the Chairperson of the Authority owns shares in a rival manufacturer, whose shares’ value increased by 25% on the day the Authority made their decision. The manufacturer seeks judicial review of the Authority’s rejection of their application.

Which rule will provide the best ground for the manufacturer’s judicial review claim?

Answer 107

The best ground is that the Authority breached the automatic disqualification rule. When the member of a public body has a financial interest in the decision at issue, they are automatically disqualified from being involved in the decision. The Chairperson here had a financial interest in the decision, since the Chairperson owned stock in a rival to the manufacturer. Therefore, the Chairperson should not have been involved in the decision

Question 108

A defendant is charged with two offences that are triable either way. He wants advice from his solicitor about which court he should go to in order to minimise his penalty and what the maximum penalty would be.

Which of the following is the correct advice to give to the defendant?

Answer 108

Because the defendant has been charged with two offences, he is best off in the Magistrates’ Court - in which a sentence of up to 12 months could be imposed along with an unlimited fine

Question 109

What is the difference b/w limited and qualified rights?

Answer 109

Limited rights: The right can be limited only in the circumstances outlined in the article

Qualified rights: The state can limit the right if necessary to promote legitimate interests

Question 110

A thief is charged with theft of £100 from a supermarket till. To access the till, the thief used a penknife to wedge open the till to access the money. The statute that applies provides ‘a defendant will commit such an offence if he uses a weapon in the course of carrying out a theft’.

What presumptions can be made about the meaning of the statute if the literal meaning of the words are ambiguous?

Answer 110

The judge can make a presumption in favour of the defendant

because there may be a presumption in favour of the defendant in a criminal trial, but this is rebuttable when there is a relevant legal rule. This accords with the presumption of innocence of the defendant and the burden of proof being placed on the prosecution

Question 111

A local council has given planning permission for a new shopping centre. Local residents are against the decision because they are concerned about the traffic that the development is likely to generate. On an application for judicial review, the court has agreed that the residents were not adequately consulted when the council made their decision.

Which remedies is the court likely to grant in favour of the local residents?

Answer 111

A quashing order and a mandatory order.

A quashing order voids the original decision, meaning that it is of no legal effect, and the mandatory order would require the decision to be retaken, only this time with the residents being properly consulted

Question 112

A solicitor is acting for a client appearing in the Crown Court on criminal charges. It is necessary to instruct a barrister and the client tells the solicitor that he must find a male barrister as he feels that a woman could not be trusted to do as good a job.

Should the solicitor act on this request?

Answer 112

These instructions are an example of direct discrimination in breach of both the Equality Act and regulatory duties, such as the SRA principle to act in a way that encourages equality, diversity and inclusion. The solicitor should refuse these instructions

Legal AND regulatory duty

Question 113

An Act of Parliament passed in 1923 and still in force provides that senior positions within the Army should be filled by “eligible officers”. An “eligible officer” is defined as a man of at least eight years experience. A female officer applied for a senior position in the Army but was rejected. The female officer challenges the denial before the High Court on the grounds that the Act violates Article 14 of the European Convention on Human Rights (the prohibition of discrimination), but she does not claim that it violates any other Convention right.

Which one of the following best explains how the court should deal with the case?

Answer 113

The court must dismiss the case.

An Article 14 claim can be brought only if it is attached to the breach of another Convention right. Here, the female officer argues that the Act violates Article 14, but she does not connect this to the breach of another Convention right.

Question 114

A law student is reading an Act of Parliament for the first time. The student reads the following language:

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

What is this called?

Answer 114

The preamble

Question 115

There has been a mix up with the diary at a busy solicitor’s firm, where a client at the Crown Court does not have a representative. The supervisor who deals with diary allocation has gone home sick. The legal secretary deals with this issue and asks a qualified solicitor, who is a trial advocate at the Magistrates’ Court but who is not a barrister, to go to the Crown Court to deal with the hearing.

Can the solicitor properly represent the client in Crown Court?

Answer 115

Yes, if the solicitor has higher rights of audience.

(no automatic right in CC)

Question 116

A group of MPs opposed to the Human Rights Act 1998 have discovered a provision of retained EU law which contains references to the EU institutions that no longer apply now that the UK has left the EU. Knowing that the power to deal with deficiencies in retained EU law gives ministers the power to make any provision that an Act of Parliament could make, these MPs have suggested that the government should use these powers to repeal the Human Rights Act 1998. The government has explained that the power to deal with deficiencies cannot be used in this way.

Which of the following best explains why the proposal is illegal?

Answer 116

Although there is a deficiency in retained EU law, the government cannot address the deficiency by repealing the Human Rights Act 1998.

Obsolete references to the EU institutions in retained EU law are an example of a deficiency in retained EU law which gives rise to the power of the government to address the deficiency under the European Union (Withdrawal) Act 2018.

However, the 2018 Act is clear that this power cannot be used to amend or repeal the Human Rights Act 1998

Question 117

A law firm is investigating a complaint raised by a member of staff. The staff member has complained that she is being treated unfairly by another colleague. She says that they both grew up in the same town but had been educated at different schools. The staff member says that the colleague is openly critical about the school that she attended and tells other colleagues that they should not include her in their teams because she will clearly not be clever enough as her educational background is poor.

Does the firm need to investigate a complaint based on this type of behaviour?

Answer 117

The SRA Codes of Conduct provide that solicitors and firms must not unfairly discriminate by allowing their personal views to affect their professional relationships. The firm has a duty to ensure compliance with SRA requirements and must investigate this complain

(edu is not protected characteristic under the equality act, so it is not an offence)

Question 118

In 2021, the Scottish Parliament passed an Act that conflicts with an EU regulation. The EU regulation was also enacted in 2021, and it pertains to a matter within the Scottish Parliament’s legislative competence.

Which of the following best explains the legal situation?

Answer 118

The Act is valid because the Scottish Parliament is no longer bound by EU law. After the end of the transition period (in December 2020), the devolved legislatures were no longer bound by EU law and thus could legislate contrary to EU law on matters within their legislative competence.

Therefore, because the Act is within the Scottish Parliament’s legislative competence, it is valid.

Question 119

A solicitor is asked to appear on a breakfast TV programme’s personal finance slot. He will be one of a panel of speakers. The solicitor goes on the programme and answers questions relating to the current state of the housing market, the recent reduction in prizes on Premium Bonds, and whether stocks and shares are a sensible investment in the current economic climate. For advertising reasons, the producers asked the solicitor not to name particular products or companies in his answers and he complied with this request. The solicitor is not authorised by the Financial Conduct Authority to carry on a “regulated activity” as defined in the Financial Services and Markets Act 2000 and related secondary legislation.

Has the solicitor breached the general prohibition against carrying on a regulated activity?

Answer 119

The solicitor has not breached the general prohibition against carrying on a regulated activity because the advice he gave on the programme was generic.

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.

Here, the solicitor answered questions about shares (a specified investment), but there is no specified activity. The specified activity of advising does not cover generic advice on whether, for example, the buying or selling of shares in general is a good investment. The solicitor gave only generic advice as to the soundness of shares as an investment, in general terms, rather than advice on particular shares. Thus, there was no regulated activity, and the solicitor did not breach the general prohibition

Question 120

A barrister has been asked to speak to secondary school students about how statutes are interpreted in the courts. The case of Muir v Keay (1875) is used as an example. The statute in that case stated that all houses that are kept open at night for ‘public refreshment, resort and entertainment’ had to be licensed. The defendant argued that his cafe did not need a licence because he did not provide entertainment. The court held that ‘entertainment’ did not mean musical entertainment but the reception and accommodation of people, so the defendant was guilty of operating the café without a license.

What rule of language has been used here?

Answer 120

Noscitur a sociis (the term in a statute is to be recognized by the associated words)

Under noscitur a sociis if a case is based on something with unclear or ambiguous words (as in a statute or contract) their meaning is determined by considering the words with which it is associated in the context. Here, the court must interpret the meaning of the word ‘entertainment’. It was used in the context of public refreshment and resort and, thus, should be interpreted to mean something related to those two terms

Question 121

A solicitor has been asked by a client to look at the client’s portfolio of shares because the client would like to make a large donation to a local charity. The client asks the solicitor to decide which shares the client should sell in order to fund the donation. The client is happy to take the necessary steps to sell the shares once the decision is made. 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 will be carrying out?

Answer 121

Managing

Managing involves managing assets belonging to another person in circumstances which involve the exercise of discretion. Here, the solicitor has been asked to look at the client’s portfolio and exercise discretion in deciding which assets the client should sell, which is the specified activity of managing

Question 122

A solicitor is advising a client company on the preparation of standard terms and conditions of employment for the company’s employees. As part of that process, the solicitor arranges for the client to speak to an insurance broker who advises the company on purchasing insurance policies to cover unfair dismissal and related employment claims. 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 and related secondary legislation. The insurance broker is authorised by the Financial Conduct Authority.

Has the solicitor breached the general prohibition against carrying on a regulated activity?

Answer 122

The solicitor has breached the general prohibition against carrying on a regulated activity because the introducing exclusion is not available for insurance policies.

Here, the solicitor is arranging (a specified activity) for the client to receive advice in relation to insurance policies (a specified investment)

Question 123

A solicitor representing a client in litigation becomes aware that the client has committed perjury on a material point while testifying the previous day.

Which of the following statements best describes what the solicitor should do?

Answer 123

The solicitor should immediately attempt to convince the client to tell the truth and then refuse to continue to act if the client does not agree.

(informing the court of the perjury is not the recommended course of action under the Code of Conduct, so it is not the best answer)

Question 124

A law firm hires a marketing company to help them with their publicity. The firm specialises in group claims in equality and employment-related matters, and are taking action against a large supermarket in an equal pay matter. The firm decides to pay for an advertising campaign on a local radio station to publicise their services.

Is this publicity allowed?

Answer 124

Yes, because radio advertising is a permitted form of publicity.

Question 125

What are the max contingency fee thresholds for damages?

Answer 125

in a personal injury case, the legal costs payable under a damages based agreement cannot be more than 25% of the sum recoverable, excluding future losses.

In non-personal injury cases, the sum payable can be no more than 50%.

Question 126

What is an adequate consideration defence under POCA?

Answer 126

Under POCA, it is an offence if a person acquires, uses, or has possession of criminal property.

However, a defence is available if the property was acquired, used, or possessed for adequate consideration. The defence applies when professional advisers, such as solicitors, receive money for or on account of costs.

Question 127

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. Which activities are these?

Answer 127

‘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.

Question 128

An elderly client engages a solicitor on a conveyancing transaction for the sale of the client’s house. The client instructs the solicitor to look at the client’s portfolio of shares and decide which ones the client should sell to allow him to raise some money to furnish his new retirement flat. The solicitor makes the decision regarding the shares and the client makes the necessary arrangements with his stockbroker to sell the shares. Neither the solicitor nor his firm is authorised by the Financial Conduct Authority to carry on a “regulated activity” as defined in the Financial Services and Markets Act 2000 and related secondary legislation. The stockbroker is authorised by the Financial Conduct Authority.

Has the solicitor breached the general prohibition against carrying on a regulated activity?

Answer 128

The solicitor has breached the general prohibition against carrying on a regulated activity because the necessary exclusion is not available for the specified activity of managing.

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.

Here, the solicitor has carried on a specified activity (managing, that is, exercising discretion in deciding which shares the client should sell) in relation to a specified investment (the shares).

Under the necessary exclusion, a solicitor may conduct activities in relation to specified investments when the activity may reasonably be regarded as a necessary part of performing legal services which do not otherwise consist of carrying on a regulated activity.

While selling the shares is arguably a necessary part of the client’s conveyancing transaction, the necessary exclusion is not available for the specified activity of managing. Thus, the solicitor cannot rely on this exclusion and is carrying on a regulated activity in breach of the general prohibition

Question 129

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?

Answer 129

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

(insurance would be required for reserved activities)

Question 130

Who pays the success fee for a contingency case?

Answer 130

The client

(the client pays the uplift and the other side pays the the normal fee of teh lawyer)

Question 131

Under the CRA when is a contract term considered unfair?

Answer 131

where, contrary to the requirements of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.

Whether a term is fair is determined taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.

Question 132

A woman owes her friend £250 under a contract they have entered into, but is unable to pay and asks her friend if he will take her designer watch, worth £200, as payment for the debt instead. The friend agrees. The friend later changes his mind and sues the woman for the £50 he claims is still owing to him.

Will the friend be successful in his claim?

Answer 132

Part payment by another method is acceptable

There is a general rule that an agreement to accept part payment in full and final settlement of a debt is not supported by consideration and so does not preclude the debtor from subsequently claiming the balance.

However, the common law has established a number of exceptions to this general rule, usually where some additional benefit is conferred on the debtor in consideration for their promise to forego the balance of their debt. An example of this is payment by another method

Question 133

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?

Answer 133

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.

Question 134

A cyclist is riding carefully along a road when he is struck by a car driven carelessly by driver A. He is thrown from his bike and is then hit by a lorry driven carelessly by driver B. He suffers a broken leg. The cyclist issues proceedings against driver A only. The court finds that the cyclist suffered one indivisible injury, to which the negligence of both drivers, A and B, made a material contribution. The court finds that driver A was 40% to blame for the injury to the cyclist and driver B was 60% to blame.

In relation to the amount of damages recoverable by the cyclist, what will happen?

Answer 134

The cyclist is entitled to recover 100% of his damages from driver A. The cyclist has suffered one indivisible injury caused by both driver A and driver B. Where the injury is not divisible, the claimant is entitled to recover his damages in full from either of the defendants. So, he may recover 100% of his damages from driver A.

Question 135

A Northern Irish politician believes that Northern Ireland should become its own independent country. Therefore, the politician wants a referendum to be held allowing the people of Northern Ireland to vote on whether Northern Ireland should become its own independent country.

Under the Good Friday Agreement, can this referendum be held?

Answer 135

The proposed referendum cannot be held. Under the Good Friday Agreement, an international treaty between the UK and the Republic of Ireland, the choice that is legally required to be presented to the people of Northern Ireland is either to remain part of the UK or to join the Republic of Ireland.

Question 136

Under the Railway Fares Act 2011, the government has laid before the House of Commons and the House of Lords a draft of the Railway Fares Regulations 2020, which set the prices of train tickets. The regulations are subject to the affirmative resolution procedure.

What powers do Parliament have in respect of the regulations?

Answer 136

Both the House of Commons and House of Lords must vote in favour of the regulations for them to become law. The regulations are a form of secondary legislation, in that they are made under powers granted by an Act of Parliament. The affirmative resolution procedure requires that both Houses vote in favour of the regulations for them to become law.

Question 137

A legal assistant has just began working at Southwark Borough Council. One of the tasks assigned to the assistant is to attend court and let the office know whether any claimants have been granted permission for judicial review of decisions made by the Council.

To which court should the legal assistant go to check on judicial review cases?

Answer 137

Applications for judicial review are heard in the Administrative Court, which is within the Queen’s Bench Division of the High Court. It should be noted that the Civil Division

Question 138

A motorbike rider and his passenger went out together and each drank more alcohol than the legal limit for driving. The passenger knew that the rider had drunk too much and also that the rider was not insured to drive the bike. Nevertheless, the passenger encouraged him to drive the bike with the passenger on board. Then, as they drove, the passenger encouraged the rider to drive in a dangerous manner. As a result, an accident occurred in which the rider was killed and the passenger was seriously injured.

In an action in negligence by the passenger against the estate of the deceased rider, what will be the likely outcome?

Answer 138

The passenger’s claim against the rider’s estate is likely to be defeated by the defence of illegality.

The law of Tort does not permit a claimant to base a claim on his own illegal act. The defence of illegality is a complete defence, so the claimant cannot recover damages for harm suffered whilst he is taking part in the criminal activity.

Question 139

A patient attended his doctor for treatment. The doctor decided that the patient needed an injection of drugs. The doctor administered the injection but carelessly gave the patient twice the recommended amount of the drug. In a normal person, this would not have been harmful. However, the patient was unusually susceptible to the drug and suffered a very severe painful reaction to the excessive dose.

In an action by the patient against the doctor, which of the following statements is correct?

Answer 139

The patient’s claim is likely to succeed. The patient will make a claim against the doctor in the tort of negligence.

The doctor owes the patient a duty of care and has breached that duty, causing damage. In negligence, the general rule is that a defendant is not liable for damage which is too remote a consequence of his actions, and damage is too remote if it is not reasonably foreseeable as a result of the defendant’s negligence. However, the ‘egg shell skull’ rule provides an exception which allows damage which may be unforeseeable to be recovered.

This rule describes the situation in which the claimant suffers from a pre-existing condition which causes the effect of the defendant’s negligence to be more extensive or severe than might have been reasonably foreseeable. The rule is applicable on these facts, so the claim is likely to succeed even though the excessive reaction was not foreseeable

Question 140

What is the maximum sentence a Magistrates’ Court may impose for a single summary only or either way offence?

Answer 140

For a summary offence, 6 months; for an either way offence, 6 months

max 12 months in total for multiple offences

Question 141

To what court is an appeal from Crown Court taken?

Answer 141

Court of Appeal (Criminal Division)

Criminal courts go straight to CoA

Question 142

Which of the following courts is/are not subject to horizontally binding precedent, that is, not bound by earlier decisions of the same court?

Answer 142

Supreme Court

or

CoA (Criminal Division)

Question 143

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?

Answer 143

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

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

Question 144

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?

Answer 144

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.

Question 145

A woman is the beneficiary under a trust. Recently, she realised that the trustee has not been investing trust funds properly, as the funds have not grown as expected. The woman would like to commence proceedings against the trustee and instructs a solicitor. The solicitor estimates the value of the claim at £225,000. The client lives in Manchester and does not like to travel. The trustee works out of London.

In which court should the client’s solicitor issue the claim?

Answer 145

The claim should be issued in the High Court of Justice, Manchester District Registry, Chancery Division. Generally, claims exceeding £100,000 are issued in the High Court. The High Court has registries in most large towns and cities, and the claimant should indicate on their claim form the district out of which they wish the claim to issue. As the client lives in Manchester, Manchester would be the best registry. And the Chancery Division of the High Court is the division that handles equity and trusts

Question 146

Is written consent of a client required for a valid referral agreement?

Answer 146

No

But the agreement MUST be in writing