SQE 2 related content inc. PCON Flashcards
What should all statements of case end with? What statement should be included in this?
Statement of truth
‘I am duly authorised by the Defendant/Claimant to sign this statement’
What two important elements should be included at the start and end of a defence?
Start: ‘The definition used in the Particulars of Claim are adopted’
End: general denial - ‘In the circumstances, it is denied that the Claimant is entitled to the amount claimed or any amount.’
What is the Duty of Confidentiality (CCS 6.3)?
You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents
What is the Duty of Disclosure? (CCS 6.4)?
You make your client aware of any information material to their case of which you have knowledge
What is the main premise of the overriding objective?
Deal with cases justly and at proportionate cost
What is the general pre-action protocol called?
What does it address?
What will take priority?
‘Practice Direction - Pre-Action Conduct and Protocols’
The standard steps parties should taken before commencing proceedings.
Priority = provision a specific protocol which applies to the case
How do you draft a letter of claim?
1) D’s address top left
2) Below ‘Dear …” put in bold ‘Our client: X’
3) Below this put who you act for and their address
4) Issue and background context
5) What is sought from D
6) How long D has to respond before commencing matters (e.g. 14 days)
7) How letter complies with pre-action protocol or general practice direction
8) Any documents enclosed
9) Yours faithfully
Exceptions to duty of disclosure?
a) the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime;
(b) the client gives informed consent, given or evidenced in writing, to the information not being disclosed to them;
(c) you have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed; or
(d) the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed.
What are the 7 SRA Principles?
Act
1. In a way that upholds constitutional principle of rule of law + proper administration of justice
2. In a way that upholds public trust and confidence in solicitors’ profession
3. with independence
4. with honesty
5. with integrity
6. in a way that encourages equality, diversity and inclusion
7. in best interests of each client
What are 3 important provisions under Principle 7?
- Do not unfairly discriminate and allow personal view to affect professional relationships and they way you provide services
- Do not abuse your position by taking unfair advantage of clients or others
- Do not mislead or attempt to mislead clients, court or others by own acts or omissions, or being complicit of acts or omissions of others (inc client)
What is an undertaking? When should this be performed?
Statement, given orally or in writing, to someone who reasonably places reliance on it, that you or a third party do something or cause something to be done, or refrain from doing something
If no timescale - within a reasonable time
What is an important provision regarding court’s attention?
Draw court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of proceedings
What is the adverse interest rule and exceptions?
Do not act for client in matter where client has an interest adverse to the interest of another current or former client, for who you or your employer/business hold confidential material which is material to the matter
Unless:
(a) effective measures which result in being no real risk of disclosure of confidential info
(b) Current or former client, who info you or your business holds confidential info, gives informed consent, given or evidenced in writing
What is the rule on referrals?
CCS 5.1: in respect of any referral of a client by you to another person, or of any third party who introduces business to you or with whom you share your fees, you ensure that:
(a) clients are informed of any financial or other interest which you or your business or employer has in referring the client to another person or which an introducer has in referring the client to you;
(b) clients are informed of any fee sharing arrangement that is relevant to their matter;
(c) the fee sharing agreement is in writing;
(d) you do not receive payments relating to a referral or make payments to an introducer in respect of clients who are the subject of criminal proceedings; and
(e) any client referred by an introducer has not been acquired in a way which would breach the SRA’s regulatory arrangements if the person acquiring the client were regulated by the SRA.
When executing a TR1 what should be written for 2 directors or director and company secretary (transferor and transferee)?
Director and an independent witness?
Executed as a deed by (name of company) acting by [name of signatory], a director, and [name of signatory] [a director/a secretary]
Signature of Director: ____________
Signature of [Secretary][Director]: ____________
and
Executed a deed by Raymonds College Limited acting by [name of director], a director, [signature of director] in the presence of [name of witness]
Signature of witness: __________
Name, address and occupation of witness
Rule on accepting gifts?
No specific rule on gifts
However, should seek to prevent giving or receiving gifts, hospitality or payments dressed-up as ‘expenses’, in situations where such payment or receipt influences a business decision
Consider proportionality - if modest amount of work done then can accept modest gift such as chocolates, flowers etc
Bigger gifts more for bigger transactions involving lots of late nights
Format for transferor executing transfer deed?
Executed as a deed by [name of transferor] in the presence of [name of independent witness]
___________ (sig of individual
____________ (sig of witness)
(Name, address and occupation of witness)
What is the rule regarding arguments?
Only make assertions or put forward representation or submissions to the court or others which are properly arguable
What are the rules on evidence?
- CCS 2.1: You do not misuse or tamper with evidence or attempt to do so.
- CCS 2.2: You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence
- CCS 2.3: You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.
Rule on instructions?
You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do.
e.g. will - must avoid someone giving instructions on behalf of another when meeting couples etc
What are the three direct involvement offences?
What should be done by solicitor?
s327: concealing, disguising, converting or transferring criminal property
s328: entering into or becoming concerned in an arrangement which you know or suspect facilitates acquisition, retention, use or control of criminal property
s329: acquiring, using or possessing criminal property
Make a report to the firm’s money laundering reporting officer (MLRO)
What is a non-direct involvement offence?
What must disclosure contain?
What can this include?
Fail to make a disclosure to MLRO or NCA if
a) know or suspect someone is laundering proceeds of any criminal conduct
and
b) you can identify person who is laundering or whereabouts of laundered property or information will or may assist in identifying person
a) identity of person
b) whereabouts of laundered prop
c) info for which your knowledge/suspicion is based
Tipping off
CDDs
What are the business relationship and occasional transaction rules?
CDD must be carried out if:
business relationship - at outset looks like ongoing relationship will be set up with client
occasional transaction - one off - must be applied if transaction exceeds 15,000 euro
What must be carried out with a standard CDD?
Identify customer and verify their identity (based on reliable and independent source)
If company - identify name, co. no., reg office, constitutional docs, names of directors
Identify beneficial owner - owns or controls more than 25% of voting rights
Ongoing monitoring
