Revision Flashcards
Types of public law
Constitutional
Administrative
Criminal
Types of private law
Contracts
Tort
Trust
Property
Succession
Family
Types of legislation
Consolidating acts - draws together existing statute & re enacts more logically
Codifying acts - embraces all existing statutes & case law into new legislation
Retroactive legislation
Delegated legislation - statutory instruments, orders in council, by-laws
Rules for interpreting statute
Interpretation act 1978 - general roles for interpretation
Literal rule - words & phrases are meant is their ordinary sense
Golden rule - if an alternative interpretation avoids absurdity this may be used
Mischief rule - court will choose the meaning that makes the act effective
Hierarchy of civil courts
Supreme Court
Court of appeal
High Court - family, chancery, kings bench (civil actions in contract and tort)
County Court - where cases start, very general for all areas of law
Hierarchy of criminal court
Supreme Court - can overrule any previous decision taken in the past
Court of appeal - 5 judges can overrule 3
Crown court - most cases heard here (decisions not binding on any other court)
Magistrates court - low level criminal offences (motor, shoplifting minor assault)
Noscitur A Sociis Rule
A word is determined by its context
Ejusdem Generis Rule
A general term depends on specific words that proceed it
Civil procedure rules
Pre action protocol (dispute resolution) - actions that must be carried out before legal action is brought
Correct court - proceedings can only start in High Court if the claim is more than £100k (£50k for personal injury). Defamation action always starts in High Court
Particulars of the claim - details of the claim which are drawn up by the claimant
Defending the claim - 14 days to acknowledge and 14 days to serve defence
Particulars of the claim
The Court, names of claimant & defendants, details of the claim & the quantum
Allocation of cases
Small claims track: for disputes less than £10k, PI & Housing less than £1k
Fast track: straight forward disputes less than £25k
Multi track: all others
Treaty that created the European Economic Community (EEC)
The Treaty of Rome (1957): Established a large European free trade area, creating a common market and customs union between members
What treaty created the EU
Maastricht Treaty (1992) or the Treaty of the European Union: three pillars are the European communities, common foreign and security policy and police/judicial cooperation
Institutions of the EU
Council - has the most power & is made up of representatives of member states
Commission - each member has one commissioner with power to initiate legislation
EU Parliament - MEPs are directly elected every 5 years. Powers are supervisory and there is little control over the commission
Court of Justice - ultimate court of appeal on matters of EU law
Sources of European law
Treaties - constitution of the EU
Regulations - laws made by the council or commission, binding on member states
Directives - binding on member states they are aimed at but it is left up to member states to decide how to enact
Decisions - binding on those to whom they are addressed (state or organisation)
Recommendations and opinions - advisory with no binding force
Types of corporations
Corporations sole: A legal person representing an official position (i.e. the king)
Corporations Aggregate: A legal entity consisting of a number of people
-Chartered corporation by royal charter (formed by the crown e.g. CII)
-Statutory corporation by private act of parliament (formed by statute, e.g. Ministry of Education)
-Registered corporation under Companies Act (companies formed under the provisions of the companies acts e.g. plc’s ltd’s)
Process of registration
Memorandum of Association
Articles of Association
Memorandum of Association
Name Clause
Registered office clause
Objects clause
Limitation of liability clause
Guarantee or capital clause
Association clause and subscriotion
Characteristics of trespass
Direct
Intentional
Actionable per se (do not have to prove damage or loss)
Characteristics of negligence
Duty of care owed
Breach of that duty
Damage suffered due to breach
General principle of duty of care
The neighbourhood principle. Foreseeable and proximate. Established in Donoghue v Stevenson
What is the neighbourhood principle?
You must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour
Test for breach of duty in negligence
The reasonable man test: a breach occurs when the defendant fails to take reasonable precautions
Test for damage in negligence
Causation and remoteness
Damage is too remote if it is not foreseeable from your actions
The wagon mound case
Characteristics of negligent misstatement
Special relationship between the parties
Giver of advice can reasonably foresee advice will be acted upon and will suffer if inaccurate
Advice is acted upon and causes a loss to the claimant
Hadley Byrne v Heller and Partners
Pure economic loss
Loss unaccompanied by physical damage
Not generally claimable
Spartan Steel and Alloys v Martin and Co - could not claim for loss of future work
Conditions for secondary victims
Must have a relationship with the primary victim
Must be close in space or time to the incident or it’s immediate aftermath
Must learn of the accident through their own unaided senses
Forms of private nuisance
Escape of noxious things from property
Interference with servitudes or rights attaching to claimants land
Characteristics of private nuisance
There must be damage
Interference must be reasonable
Defence of private nuisance
If the defendant can establish that the nuisance has existed openly and continuously for 20 years or more
Characteristics of Ryland v Fletcher
A non-natural use of the land
Brought something onto the land, escape of which would cause damage
The thing did escape and cause damage
In the case the defendant built a reservoir but the water escaped flooding a neighbours mines
Possible defences of Ryland v Fletcher
Consent: consent of claimant for the presence of the source of danger, if there is no negligence by defendant
Common benefit: the source of danger benefits both the claimant and defendant (similar to consent)
Act of a stranger: defendant is not liable if the escape is due to a stranger
Statutory authority: if a statute requires a person/body to carry out a certain activity
Act of god: escape due to an event no human foresight can provide against
Breach of statutory duty
Statute was intended to allow civil remedy
Statute must impose a duty on the defendant
The claimant must prove the statutory duty was owed to them
The duty must have been breached by the defendant
The breach must have caused damage to the claimant that is of a kind recognised by the statute
Employers duties
Employers must take reasonable care to
-select competent staff
-provide and maintain proper plant, premises and equipment
-provide a safe system of work
Occupiers duty to visitors
To take all reasonable care that the visitor will be reasonably safe in using the premises for the purpose for which they are invited or permitted to be there
Occupiers duty to trespassers
A duty is owed only if the occupier knows or has reasonable grounds to believe that the danger exists and the trespasser may come into its vicinity. The risk must be one against which the occupier may reasonable be expected to offer a trespasser some protection
Defamation
A false statement about a person which causes injury to that persons reputation
Libel
A defamatory statement in permanent form i.e. writing
Slander
A defamatory statement in transient form i.e. spoken
When is defamation actionable per se?
Libel is always actionable per se
Slander is only actionable per se if the defendant falsely alleges that the claimant is guilty of a crime punishable by imprisonment or is unfit to carry out their profession
Defences to defamation
Truth
Honest opinion
Public interest
Innocent defamation
Privilege
General defences in tort
Self-defence
Necessity
Statutory authority
Volenti fit non injura (consent)
Contributory negligence
Limitation periods in tort
Libel and slander: 1 year
Bodily injury: 3 years from date of knowledge
Other torts: 6 years, 3 years from date of discovery of latent damage (15 year backstop from date of negligence)
Remedies for tort
Damages and injunctions
Types of damages
General damages: do not require pleading and flow from losses suffered
Special damages: require pleading and are quantifiable
Aggravated damages: applied when defendants motive/conduct show malice
Punitive damages: rare in Uk, intended to punish for conduct
Nominal damages: actionable per se tort committed but no real loss cause
Contemptuous: a tiny sum awarded to mark the courts low opinion of the claim
Types of injunction
Mandatory injunction: to do a particular thing
Prohibitory injunction: to stop doing a particular thing
Essentials of a contract
Agreement (offer & acceptance)
Intention to create legal relations
Consideration
Valid form
Capacity to contract
Rules of consideration
Must be real/genuine
Need not be adequate
Must not be past
Must move from the promise
Must not be something the promise is already bound to do
Forms of contract
Contract under seal (deed)
Contracts in writing
Contracts evidenced by writing
Contracts where one party supplies certain written particular to the other
How are terms implied
In fact
By trade custom
In law
Warranty’s in non-insurance contracts
Affects only minor parts of the contract and if broken gives the right to claim damages but not terminate the contract
Conditions in non-insurance contracts
Goes to the root of the contract and if broken gives the right to claim damages and terminate the contract
How may contracts be defective
Illegality: void
Improper pressure: voidable
Mistake: void
Misrepresentation: voidable
Non-disclosure
Discharge of contracts
Performance
Breach
Frustration
Agreement
Operation of law
Causes of frustration
Change in law
Destruction of thing necessary for performance
Non-occurrence of an event on which the contract depends
Commercial purpose of contract frustrated
Death or incapacity
Remedies in contract
Termination
Damages
Specific performance
Injunction
Time limits for contract law
Simple contract: 6 years
Personal injury: 3 years
Specialty contract (deed): 12 years
Period runs from the date of the action
Contract (Rights of Third Parties) Act 1999
Third parties can only enforce if:
-contract provides that they may do so
-contract purports to benefit a 3rd party
Types of Assignment
Statutory assignment under Law or Property Act 1925 s.136: must be absolute, in writing and expressly made to assignor
Equitable assignment: if conditions of statutory assignment are not met but the intention was to assign
Creation of agency
Agreement
Ratification
Necessity
Conditions for valid ratification
Agency must purport to be acting on principals behalf
Principle must be the person who the agent had in mind
Principle must have full knowledge of the circumstances relevant at the time or waive further enquiry
Principal must have capacity
Ratification must take place within a reasonable time
The whole contract must be ratified
Void or illegal acts cannot be ratified
Duties of an agent
Obedience
Care and skill
Personal performance
Good faith
Accounting for monies received
When is delegation of an agents duties allowed
Express authorisation
Routine administrative tasks
Trade custom
By necesity
Remedies for breach of agents duties
Action in contract
Action in tort
Dismiss without notice for serious breach
Sue for recovery of a bribe
Rescind any contract formed if breach is fraudulent
Sue for account if agent fails to disclose full financial details of agency dealings
Rights of an agent
Remuneration (payment or commission)
Indemnity (reimbursement of reasonable expenses)
Lein
Types of authority
Actual authority (real authority given either expressly in the contract or by implication)
Apparent authority (no real authority to do the act, but it appears in the eyes of the third party that they do)
Termination of agency
Agreement
Performance
Lapse of time
Withdrawal of authority
Renunciation by the agent
Death of either party
Bankruptcy of the principle (or agent if it impacts performance)
Insanity
Frustration
Essentials of an insurance contract
Nature of the risk and subject matter if insurance
Duration of contract
Amount of premium/method of calculating premium
Marine insurance contract essentials
Must be in writing
Name of the insured of their agent
Subject matter of insurance
Signed by insurer
Key elements of insurable interest
A subject matter of insurance
Economic or financial interest
Current interest (not merely an expectancy)
Interest must be recognised by law
Reason for insurable interest
Reduce moral hazard
Discourage wagering
Insurable interest in marine insurance
If there is no insurable interest the policy is void
The interest must exist at the time of the loss
Insurable interest in life insurance
No insurable interest makes a policy both void and illegal
The interest must exist at the time the contract is made
Insurable interest in policies other than marine and life
No interest makes the policy void and the insured can recover the premium
Who has insurable interest in a persons life
The person themselves
Spouse
Business partner
Employer (if they are a key person)
Employee
Creditor
Who has insurable interest in property
Outright owners
Part or joint owners
Mortgagees and mortgagors
Executors and trustees
Landlords and tenants
Baileys
People living together
Finders and people in possession
Types of misrepresentation
Fraudulent misrepresentation (when a false statement is made on purpose)
Innocent misrepresentation
Negligent misrepresentation (when the person who made the statement did not take sufficient care to check it was true)
What matters must be disclosed
Every material circumstance which the insured knows or ought to know
Types of material circumstance
Physical hazards
Moral hazards
What makes a circumstance material
If it would impact the judgement of a prudent insurer in determining whether to take the risk and if so on what terms
Matters that need not be disclosed
Matters of law
Facts which the insurers know or ought to know
Information waived by the insurers
Facts outside the scope of the specific question
Facts the proposer does not know
Spent convictions
Remedies for fraudulent claims
The insurer is not liable to pay the claim
For non-group policies the insurer may terminate the policy with effect from the fraudulent act and retain the premium
Remedies for an innocent breach in non-consumer insurance (IA 2015)
Avoid the contract if the insurer would not have entered into it on any terms in absence of the breach, but the premium must be returned
Apply the terms that would have been applied in absence of the breach
Apply the proportionate remedy if a higher premium would have applied in absence of the breach
Ignore the breach and let the policy stand
Refuse a particular claim and let the policy stand
Remedies for a deliberate or reckless breach in no-consumer insurance (IA 2015)
Avoid the contract and retain the premium
Ignore the breach and allow the policy to stand
Refuse a particular claim and allow the policy to stand
Remedies for a negligent breach in consumer insurance (CIDRA 2012)
Avoid the contract if the insurer would not have entered into it on any terms in absence of the breach but must return the premium
Apply the terms that would have applied in the absence of a breach
Apply the proportionate remedy if a higher premium would have applied in the absence of the breach
Remedies for a deliberate or reckless breach in consumer insurance (CIDRA 2012)
The insurer may avoid the contract and retain the premium, except where it would be unfair to the consumer
Warranties in insurance contracts
A promise made by the insured relating to facts or to something which they agree to do. A breach of warranty suspends insurance cover until the breach is remedied
Continuing warranty
Where the insured promises that a state of affairs will continue to exist or they will continue to do something. Continuing warranties usually relate to some aspect of good housekeeping or ensuring certain high risk practices are not introduced without the insurers knowledge
Conditions precedent to contract
The contract will not come into existence unless the condition is complied with
Condition precedent to liability
The insurer will be discharged from liability for the loss which is tainted by the breach but the contract will not be terminated
Mere condition
Minor terms which if breached entitles the insurer to claim damages. If the breach is so serious it goes to the root of the contract the insurer may terminate the contract
Suspension conditions
All cover is suspended when the condition is not adhered to
Terms not relevant to the actual loss
Insurers cannot rely on these terms to exclude, limit or reduce liability if the insured can show that non-compliance cannot have increased the risk of the loss that actually occurred in the circumstances in which it occurred
Loss of a particular kind/at a particular location/time
Reasons insurers cannot reject employers liability claims
Late notification
Complying with a condition to take reasonable care to protect employees against injury or disease
The use of policy deductibles
Illegal insurance contracts
No insurable interest
Purpose of the contract is illegal
Unlawful use of insured property
Close connection with crime
Void insurance contracts
No insurable interest
Fundamental mistake
Illegal contract
Voidable insurance contracts
Breach of pre-contractual duty of information
Joint insureds
Have the same interest in the subject matter (stand and fall together)
Composite insured
Have different interests in the same subject matter (not responsible for each other)
Types of assignment in insurance contracts
Assignment of the subject matter: Does not automatically assign the policy
Assignment of the benefit: Proceeds of valid claim go to assignee, no insurable interest required, requires notice to but not consent from insurer
Assignment of the contract itself: Personal contracts not freely assignable, assignment of property contract at time of property transfer, marine cargo and life policies freely assignable (provided identity of life insured doesn’t change)
Imputed knowledge
Any knowledge which the agent possesses is imputed to the principle i.e. the law assumes the principle is aware of the same information as the agent
Legal v equatable assignment
The legal assignee can claim in their own name while an equitable assignee must join the assignor in the action
Fires prevention (metropolis) Act 1774
A person with legal or equitable interest in a building can compel the owner or insurer to reinstate the property if it is damaged or destroyed by fire
The person compelling is required to serve notice on the insured and the insurers must cause the insurance money to be laid out in reinstatement, meaning the insurers must withhold money until they are given sufficient guarantee that the insured will reinstate the property
Proof of loss in insurance claims
The insured must prove the loss is caused by an insured peril and the amount of loss
Burden of proof is on the balance of probabilities
The loss must be fortuitous and not caused deliberately by the insured
Expressio unius est exclusio alterius
Specifying one thing implies the exclusion of things that are not specified
Specific words not followed by general words are taken to mean the specific words only
Contra proferentem rule
The principle of ruling against the maker of an ambiguous clause
Leyland Shipping v Norwich Union Fire Insurance Society (1918)
Established that the most recent cause is not necessarily the proximate cause.
Concurrent causes were a torpedo then a storm, but the proximate cause was held to be the torpedo
Proximate cause
The most efficient or dominant cause, not the most recent
Concurrent causes
Two or more causes which operate together to bring about a loss
Yorkshire Water Services v Sun Alliance and London Insurance (1997)
Prevention costs are not insured unless the policy provides otherwise
Claimant incurred costs repairing an embankment to prevent the escape of sewage into the river, but the court rejected the claim for costs
Interdependent causes
Two or more perils which are interdependent (one did not cause the other) but each cause would not have caused damage in its own
If a policy excludes one of the perils the exclusion prevails and the loss is not covered. Wayne Tank and Pump v Employers Liability Insurance (1974)
If only one of the perils is uninsured on a policy then the insurers are liable for the whole loss. J J Lloyd v Northern Star insurance (1987) the miss jay jay case
Measure of indemnity: Buildings
Cost of repair/reconstruction at the time off loss, less the costs for betterment
Measure of indemnity: machinery and equipment
Cost of repair or replacement (2nd hand) less the costs of wear and tear
Measure of indemnity: manufacturers stock
Cost of replacing the goods or returning them to the condition they were in prior to loss
Measure of indemnity: wholesale and retail stock
Cost of replacing stock including transport and handling
Measure of indemnity: farming stock
The market price or government minimum price guarantee
Forms of betterment
I damaged portions of property being renewed during repairs
Quality of building is improved in carrying out the repairs
Limitations of indemnity
Sim insured or limit of liability
Other policy limits
Underinsurance and averaging clauses
Excess, deductibles, franchises
Extensions of indemnity
Reinstatement basis
New for old
Agreed values
Reinstatement cover
Cost of rebuilding or replacing the property to a condition equivalent to or substantially the same as but not better or more extensive than its condition when new
The effect is to remove any deduction for wear and tear
Methods of providing indemnity
Payment of money
Reinstatement
Repair
Replacement
Abandonment
The act of giving up the subject matter
Salvage
The right of the insurer to take over the subject matter
Constructive total loss
The subject matter is damaged and the cost of repair would exceed its value when repaired, or the insured is deprived of the subject matter and is unlikely to be recovered
Insured must officially give notice of abandonment to insurer
Subrogation
The right of a person, who has indemnified another under a legal obligation, to take the rights and remedies of the indemnified person
Purpose of subrogation
To prevent unjust enrichment of the insured
Means of subrogation
The insured recovers the same loss twice. In this case the insurer would have an equitable lean over the money recovered above the indemnity
Insurers bring an action against the third party. The action must be brought in the name of the insured and it must be for the whole loss
Source of subrogation rights
Tort
Contract
Statute
Modifications of subrogation rights
Market agreements
Waiver of subrogation
Co-insurance
Public policy
Contribution
The right of an insurer to call upon other insurers who are similarly liable to the insured, to share the cost of indemnity
Purpose of contribution
Prevents the insured from profiting from the loss
Conditions for contribution
Two or more policies of indemnity
A common subject matter
A common insured peril
A common interest
Each policy is liable for the loss
Contribution: escape clause
Forbids the insured from taking out another policy without the consent of the insurers. The second policy will never come into force
Contribution: other insurance/no liable clause
If both policies contain such a clause they will cancel each other out
Contribution: excess clause
The policy containing this clause will operate in excess of the other, if both contain this clause they will cancel out
Contribution: more specific clause
The policy will provide excess cover where there is a more specific policy
Contribution: rateable proportion clause
The insured must recover the rateable proportion from each insurer separately
