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SQE > Paper 1 - Key Principles/Mistakes > Flashcards

Paper 1 - Key Principles/Mistakes Flashcards

1
Q

When do Part 36 consequences apply? I.e. what are the triggers for each respective offer?

A

Defendant’s Part 36 Offer: A C fails to obtain a judgement more advantageous
Claimant’s Part 36 Offer: Judgement against D is at least as advantageous to the C

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2
Q

If both the D and C offer Part 36 offers respectively, neither accepting the others, but neither of the triggers being set off, what is the result as for costs if C wins at trial?

A

The D pays the C’s costs of the claim on the standard basis

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3
Q

When is a Tomlin Order required?

A

Where parties agree to settle after court proceedings have been issued, but the agreement goes beyond the scope of the dispute

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4
Q

What is a Tomlin Order?

A

A type of consent order that avoids the entering of judgement used to settle disputes before they go to court

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5
Q

How does one accept a Part 36 offer?

A

Serving a notice of acceptance in relation to the C’s Part 36 offer

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6
Q

How can some extend a deadline for serving a budget?

A

Ask the other side to agree deadline be extended - can do so up to 28 days provided that such an extension doesn’t put at risk any hearing date
Applying to court necessary if other side disagrees or wants a longer extension

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7
Q

If a document is destroyed in the ordinary course of business, does it still need to be disclosed?

A

Yes

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8
Q

What is the deemed date of service using post/DX (not for claim form)?

A

2nd day after posted if a posted, if not, the next business day after that

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9
Q

What is the determining factor for deciding what track is the ‘normal’ track? (not necessarily the correct one in the circumstances)

A

The financial value

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10
Q

For determining a limitation period, if a person is under a disability or a minor, at the time the cause of action accrues, when does the limitation period start to run from?

A

When the disability ends and is 3 years in relation to personal injury

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11
Q

Where a lower court refuses an application for permission to appeal, to whom can a further application for permission be made?

A

To the appeal court

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12
Q

Where your client is failing to comply with a disclosure obligation, and misleading the other side/court, what should you do?

A

Cease to act
Can’t notify the court/other side as this would be a breach of the duty of confidentiality

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13
Q

If the a buyer does not see or hear the attempted misrepresentation, is it actionable?

A

No, as they are not induced by it - there is no express promise on the facts

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14
Q

What is affirmation of a contract?

A

An act which shows the agreement is settled and binding after duress ceases

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15
Q

What is the primary remedy for misrepresentation? What is can bar it?

A

Rescission
Bar = affirmation; restitution not possible; lapse of time (delay defeats equity); 3rd party rights accrue

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16
Q

Does forming a valid contract with a third party automatically extinguish another valid offer?

A

No - have to see if the first one is still open for acceptance

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17
Q

If a person is claiming incapacity in a contract claim, what must they establish to prove it?

A
  1. They did not understand what they were doing
  2. The other party knew that to be the case
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18
Q

Is loss of amenity available in commercial cases as a contractual remedy?

A

No

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19
Q

Can the CoA depart from a decision made by an earlier incarnation of the court on the basis that they feel that the law should be modernised in a general sense?

A

No - must be for more technical reasons e.g. earlier CoA acted per incuriam by not paying due regard to a statutory or case law authority that was relevant at the time

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20
Q

If monies which potentially come from ML remain in a firm’s client account, can you be held to be in possession of criminal property?

A

Yes

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21
Q

Where can solicitors carry out advocacy?

A

MC, County Court, Tribunals and Appeal Tribunals
Everywhere else, carried out by barristers or solicitors if they have undertaken training and passed assessments to obtain Higher Rights of Audience

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22
Q

Are new partners liable for debts incurred by partnerships before they joined? How are partners deemed liable in general for contractual debts?

A

No
Jointly liable

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23
Q

What procedure should be followed to obtain shareholder removal for approving a loan to a director as quickly as possible?

A

Written Resolution
A memorandum has to be displayed at registered office for 15 days ending with date of GM so a short notice procedure can’t be used
The memorandum can be attached to the written resolution, so the 15 day display requirement isn’t applicable

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24
Q

Where company A wants to give a director of Company B (who wholly owns Company A) a plan, what shareholder approvals are required?

A

Just from company B - OR

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25
Q

What resolution is necessary to disapply pre-emption rights?

A

A special resolution

26
Q

What type of charge should be taken out over vehicles?

A

Floating charge as they are fluctuating assets as they are the stock of the company

27
Q

What can capital losses be set off against? What can be done with unused capital losses in the current accounting period?

A

Only against chargeable gains
For unused capital losses in the current accounting period, these losses can be carried forward and set off against chargeable gains in subsequent accounting periods (can’t be set off against chargeable gains in previous accounting periods)

28
Q

For voidable preferences, when can something be presumed?

A

A desire can be presumed if the transaction was with a connected person
(insolvency is NOT presumed for preferences)

29
Q

To prove the ‘but for’ test, what % chance must be proven?

A

Over 50%

30
Q

What are the presumed relationships of close ties of love and affection (for secondary victims proving psych harm) are there? None outside of these have been successful

A

Parents
Children
Spouses
Engaged couples

31
Q

Whom can PM appoint in the Cabinet?

A

Ministers who are from either the HoC or HoL

32
Q

Can a client complain to the Legal Ombudsman even if the firm has ‘resolved’ the matter within 8 weeks?

A

Yes if not to the client’s satisfaction

33
Q

How are the Monarch’s prerogative powers exercised?

A

Personally by the Monarch but according to various constitutional conventions

34
Q

If it’s not possible for the court to interpret an Act of Parliament in a way that complies with Convention rights, what should the court do?

A

Make a declaration of incompatibility
HRA doesn’t permit the court to declare legislation invalid

35
Q

When can an Article 14 claim be brought?

A

Only if it’s attached to breach of another Convention right
If it’s not, court must dismiss the case

36
Q

Who owes clients a duty of confidentiality in a firm?

A

Everyone in that firm (not just solicitors)

37
Q

How are partners liable for for debts of a partnership?

A

Jointly and severally

38
Q

How many members, directors and company secretaries does a public company need to have?

A

One member
Two directors
Company secretary

39
Q

What is the share capital requirements to commence trading as a public company?

A

Allotted share capital of £50,000

40
Q

What is the definition of a PSC?

A

Have OVER 25% of surplus assets on winding up

41
Q

What resolution is required to declare a dividend?

A

OR by shareholders

42
Q

When may a company declare a dividend?

A

If it has accumulated realised profits in excess of accumulated realised losses

43
Q

When is capital payment for buyback of shares only permissible?

A

Once distributable profits and proceeds of any free issue of shares is used up

44
Q

Who can demand a poll vote at a GM?

A

A shareholder (or more) who hold at least 10% of total voting rights
Or alternatively, two or more shareholders with right to vote

45
Q

To be a substantial asset, what must it be?

A

Either exceed 10% of company net asset value
Or exceed £100,000

46
Q

When is a dividend paid out by a company?

A

Out of profits, AFTER it’s paid corporation tax
It is therefore, not tax deductible (unlike interest payable on a loan)

47
Q

What type of creditor can itself appoint an administrator and file a notice of appointment at court?

A

A floating charge holder
Otherwise, one or more creditors can apply to court for an order appointing administration

48
Q

How much must a creditor be owed to have a debtor declared bankrupt?

A

At least £5,000

49
Q

When must a business with an estimated VAT taxable turnover of more than £1,350,000 make a VAT return?

A

Every three months
VAT must be paid within a month from the end of the three-month period to which it relates

50
Q

How to calculate VAT?

A

1/6 x VAT inclusive amount

51
Q

When can a party amend a statement of case without permission of any party/court?

A

Before it’s served (even if they’ve filed it at court)

52
Q

Within what period of time must a Tomlin order be enforced?

A

6 years

53
Q

What are puisne judges?

A

The lowest rank of the Superior court judges - ordinary judges of the High Court

54
Q

In what courts does a Circuit Judge sit?

A

Crown and County Court

55
Q

For a passport to be valid ID for ML purposes, what must it be?

A

A valid, signed, current passport

56
Q

How is the calculation of DBA different to CFA?

A

For DBA, solicitor is only paid a % of the damages - they do not get charges + success fee, which is CFA

57
Q

In what 2 instances should pre-emption rights be considered?

A

Issuing new shares
Transferring existing shares

58
Q

When is pre-action disclosure used vs Norwich Pharmacal order?

A

Pre-Action Disclosure: before proceedings start, to obtain info from opponent/intended opponent
Norwich Pharmacal Order: before proceedings start but to obtain info from a non-party

59
Q

What are the 2 requirements for business property relief? What tax does it apply to?

A

Applies to IHT
1. Business property: business/interest in business; shares in quoted/unquoted company; land, building, P&M
2. Transferor owned for at least 2 years immediately prior

60
Q

What are the rates of relief for business property relief?

A

100%: unquoted shares & business/interest in business
50%: quoted shares but only if person had control of company & land buildings etc

61
Q

Can the Solicitors’ Disciplinary Tribunal award claimants compensation?

A

No - only the court can

SQE (15 decks)

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