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sqe2 Flashcards

1
Q

what CPR and case are relevant for the application to set aside a default judgment?

and what do they say?

A

CPR r 13.3(1)

“…the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim;

or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.”

CPR r 13.3(2) promptness

Denton:
1. was the breach significant/serious?
2. why did it happen?
3. all the circumstances surrounding the case

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2
Q

what CPR is relevant for setting out the grounds for summary judgment?

A

CPR 24.3

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3
Q

in youth court matters of jurisdiction, which crimes MUST go to CC?

A

homicide and firearms offences

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4
Q

when will a youth be sent to CC with adult?

A

if charged with homicide or perhaps facing a grave crime where focus on sentence, or when in IOJ for them to be tried alongside adult where emphasis on adult

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5
Q

The youth court MUST conduct a [XXX] in respect of youths charged with grave crimes

A

plea before venue

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6
Q

what is the test for determining where a youth should be sentenced?

A

Is there a real prospect that a sentence in excess of two years’ detention will be imposed on youth?

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7
Q

when can a seller serve notice to complete and when must the money then be paid by?

A

anytime after 2pm on the completion date, and money must then be paid within 10 working days

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8
Q

how is compensation calculated upon late completion?

A

at the contract rate of the full purchase price (minus any deposit paid), divided by 365 (= daily rate of interest) and then multiplied by however many days the defaulting party has delayed

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9
Q

in PP, what is the difference between compensation and damages and how are damages affected if compensation has already been given?

A

compensation = contract rate of purchase price (minus deposit) divided by 365 x however many days delayed

damages = whatever the non-defaulting party may suffer, ie having to pay compensation for a linked purchase

if damages are being claimed, they will be reduced by any compensation paid.

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10
Q

do you have to serve a notice to complete in order to claim damages?

A

no

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11
Q

in a draft sale contract, what goes in the square brackets after ‘at’ on the front page?

A

the address/name of the property

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12
Q

which condition of SCS deals with VAT and what does it say?

A

1.4
1.4.1= purchase price + contents price are INCLUSIVE of VAT

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13
Q

which condition of SCS deals with the deposit? and what is the normal amount?

A

2.2:
and it’s 10% (2.2.1)

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14
Q

which condition of SCS deals with proof of title, requisitions and timetable?

A

4.1, 4.2 and 4.3.1 respectively

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15
Q

which conditions of SCS deal with transfer and what is the general approach?

A

4.6
4.6.2 = seller to transfer with full title guarantee

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16
Q

which conditions of SCS deal with risk, insurance and occupation pending completion, and what is the general provision?

A

5
5.1.1= property is at the risk of the buyer from the date of the contract :/

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17
Q

which condition of SCS deals with completion and what are the main provisions?

A

6
6.1.1- completion date = 20 BDs after date of contract
6.1.2- if money received after 2pm, completion is treated as one day late

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18
Q

which condition of SCS deals with notice to complete?

A

6.8
6.8.2- 10 BDs to complete after serving notice (excluding the day on which it’s given)

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19
Q

which conditions of SCS deal with late completion and compensation and what does it say?

A

7.2 late completion
7.2.2 compensation calculated at contract rate on an amount equal to purchase price, less any deposit
7.2.3- any claim for loss resulting from delayed completion is reduced by any compensation paid

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20
Q

which SCS condition deals with the buyer’s failure to comply with notice to complete and what does it say?

A

7.4
7.4.2 the seller may rescind the contract, and if they do they may:
-forfeit and keep the deposit + interest
-resell
-claim damages

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21
Q

what type of violence counts as personal violence for the purposes of AR of assault?

A

only physical violence (not psychological)

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22
Q

what is the purpose of a summary judgment and which CPR deals with it?

A

to settle matters outside of court without going to trial
CPR 24

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23
Q

what is the test for a summary judgment app and which CPR outlines this?

A

1- that D has no real prospect of defending the claim; AND
2- there is no other compelling reason why the dispute should go to trial

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24
Q

what does ‘no real prospect’ mean in a summary judgment app limb 1?

A

no real prospect means the claim is imaginary, fanciful or false. to defeat this app, respondent doesn’t need to show that they’re LIKELY to succeed, just that there’s some chance of it even if improbable. “real” means more than merely arguable

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25
Q

what is the test/requirements for an interim payment (+ CPR)?

A

court can only order payment if any of the following are satisfied:
- D has admitted liability to pay damages
- C has obtained judgment against D for damages to be assessed
- it is satisfied that if claim went to trial, C would obtain judgment against D for a substantial amount of money

CPR 25.7

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26
Q

how would you structure an interim payment app submission?

A

1- explain why the conditions of C obtaining a judgment have been met
2- for a substantial sum
3- show you’re asking for a reasonable proportion (+address any factors like contributory negligence)

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27
Q

in an interim payment order, what must the court keep in mind when deciding what amount to award?

A

the court cannot award any amount higher than a ‘reasonable proportion of the likely amount of the final judgment’

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28
Q

what is the test for an interim injunction app/

A

cyanamid test:
1- is there a serious q to be tried?
2- would damages be an adequate remedy?
3- where does the balance of convenience lie?

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29
Q

which CPR deals with security for costs app and what is the test?

A

CPR 25.13:

court can make an order if it is jUST to make it (having regard to all the circumstances)
and
one of the prescribed conditions applies

conditions are:
C is a resident out of the jurisdiction (but not in a Hague Convention party jurisdiction)
C is a company and there’s reason to believe it won’t be able to pay
C has taken steps in regards to its assets that would make enforcement of a payment harder

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30
Q

what is the limitation period for personal injury claims?

A

3 years from the latest of:
the date when the accident happened; or
the date the person found out about the injury

(whichever happened later)

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31
Q

what is the limitation period for fatal accidents claims?

A

3 years from:
the date of death; or
the date when the dependent C found out about it

(whichever was later)

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32
Q

what factors make up the date of knowledge for limitation purposes? (fatal accidents and PI)

A

date of knowledge means knowing:
that the injury was significant
that it was attributable to the wrongdoing
the identity of D
if wrongdoing by someone other than D, the identity of that person

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33
Q

what is the limitation period for contribution claims?

A

2 years from
when judgment against the first party was made,
or if no trial, then from when an agreement to pay was first made

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34
Q

when do you have security of tenure and when do you not?

A

in business tenancies, always, unless ss24-28 of Landlord and Tenant Act have been EXCLUDED

35
Q

is an authorised guarantee agreement qualified by a requirement of reasonableness?

A

no, so the landlord can request this at its absolute discretion

36
Q

what is the central s of the Consumer Rights Act 2015 and what does it say?

A

s 49 obligation - all services must be carried out with reasonable care and skill

37
Q

what do both the Unfair Contract Terms Act and the Consumer Rights Act prohibit?

A

exclusion of liability for death or PI cause by negligence

38
Q

what is the test for whether liability has been correctly excluded under UCTA and CRA?

A

under UCTA = test of reasonableness
under CRA = test of fairness

39
Q

what can you assume when a restrictive covenant is registered?

A

that it binds the property

40
Q

if the land being sold is already registered, what form do you use to register new ownership?

A

Form AP1

41
Q

what is form K1 used for?

A

to register a charge for unregistered land

42
Q

what is insurance rent?

A

the money a landlord recovers from the tenant for insuring the premises

43
Q

is specific privity of contract needed when underletting new leases?

A

no because the undertenant automatically assumes responsibility for the tenant’s covenants

44
Q

how do you get privity of contract between the landlord and undertenant?

A

through a licence to underlet

45
Q

a leasehold of 7 years or less granted by deed is what?

A

an overriding interest

46
Q

to what extent is an implied term binding?

A

to the same extent as an express term!

47
Q

how can a term be implied into a contract?

A

by fact or law
fact: if it was the presumed but unexpressed intention of the parties (court can take trade customs, business efficacy and a course of dealing between the parties into account)
in law: when the court or statute requires this

48
Q

what forms do you file at Companies House when appointing new directors/secretaries

A

AP01 = appointment of directors
AP03 = appointment of secretary

49
Q

what forms do you file at Companies House when terminating appointment as a director/secretary

A

TM01 = terminating appointment as director
TM02 = terminating appointment as secretary

50
Q

what forms do you file at Companies House for individuals with significant control?

A

PSC01 = individuals with significant control
PSC07 = ceasing to be an individual with significant control

51
Q

what company registers do you update when someone new becomes a director?
(board minutes)

A

the register of directors and secretaries
and potentially the register of persons with significant control

52
Q

what is a calderbank offer?

A

an offer to settle but it’s private, titled ‘without prejudice save as to costs’, meaning the judge won’t see it until costs are considered

53
Q

What’s the standard applied when assessing the claim of a surviving spouse/civil partner under IPFDA 1975?

A

Such financial provision as it would be reasonable in all the circumstances for a husband/wife /civil partner to receive, whether or not it’s actually required for their maintenance

54
Q

what res is needed to remove a director? what does this take precedence over?

A

an OR
takes precedence over SHA

55
Q

what form do you file at companies house to register change of name?

A

NM01

56
Q

what should an executor submit to HMRC for a grant of representation?

A

IHT 400 form and the value of all assets at time of death

57
Q

what is the overriding objective?

+ subset? (3)

A

to deal with cases justly and at proportionate cost

including: dealing with the case proportionately to the amount of money involved, and the complexity of the issues
dealing with cases expeditiously and fairly
enforcing compliance with rules, PDs and orders

58
Q

how do you renounce probate?

A

by signing a deed and submitting it to the probate registry

59
Q

how do you reserve power as an executor?

A

the other exec applies for probate and sends the reserving exec formal notice in writing, then also needs to show confirmation that the exec reserving power has been notified

60
Q

how do you appoint an attorney to act as executor on your behalf?

A

by signing a power of attorney and submitting it to the probate registry

61
Q

what happens if you choose to be an executor but don’t really have time to do it/are away>

A

can get other execs or solicitors to do the day-to-day, but still need to keep up to date with the admin and be involved with major decisions. also need to sign papers throughout

62
Q

how do you apply for a grant of probate?

A

send IHT400 form to HMRC
HMRC will send confirmation + unique code + the estate values needed for probate app
then make an application with the unique code and the estate values on HM Courts and Tribunals Service online portal

63
Q

what does an IHT400 form contain?

A

personal info like name, dob, address etc
also info on estate and the value of each asset at the date of death

64
Q

what forms do you use to apply to probate registry using a paper application?

A

form PA1A where deceased didn’t leave will
form PA1P deceased left a valid will

65
Q

what is a covenant?

A

a means of private control over the land

66
Q

what is a negative covenant capable of being and what status is it thus given by the courts?

A

capable of being an equitable interest in the land => courts give it proprietary status

67
Q

how does a covenant pass the rule in Tulk v Moxhay?

A

1) it must be negative
2) it must accommodate the dominant land
3) there must be intention
4) there must be notice

68
Q

how do you protect a covenant over unregistered land?

A

by way of a land charge under the Land Charges Act 1972

69
Q

what must always be attached to the particulars of claim?

A

any written agreement that you’re relying on

70
Q

what do you call a person who gives evidence by affidavit?

A

a deponent

71
Q

what is a jurat?

A

a statement at the end of an affidavit which authenticates it

72
Q

what does a jurat consist of?

A

“Sworn at [full address]
On [date]
Before me:
Signed:………………………..
Commissioner for oaths

73
Q

what constitutional docs need to be filed with companies house?

A

AoA, memorandum, IN01

74
Q

what docs need to be filed at companies house for a security charge?

A

s 859D statement of particulars on Form MR01
certified copy of charge

within 21 days

75
Q

what needs to be filed at companies house for allotment of shares?

A

OR if removing cap on authorised share capital
OR granting directors authority to allot
SR re pre-emption rights/amending arts
amended articles
form SH01 (return of allotment)
statement of capital
PSC01, PSC02, PSC04, PSC07

within 15 days

76
Q

what needs to be filed at companies house if changing articles?

A

new articles
SR

77
Q

what needs to be filed at companies house for change of name?

A

NM01

78
Q

what types of res need to be filed at companies house?

A

all special res

79
Q

who prepares the first draft of the transfer for SCPCs?

A

the buyer

80
Q

what do you do with panel 1 of TR1 if transferring unregistered land?

A

leave it blank

81
Q

for panel 2 (address) of TR1, what do you put if land unregistered?

A

the description as stated in the root of title doc, plus reference to a plan

82
Q

what do you put in the transferor tile of TR1 if co-owners and one died?

A

the surviving owner as well as the appointed trustee!

83
Q

what do you do in a TR1 if there’s a covenant binding all successors in title?

A

the transferee gives an indemnity covenant against any liability for future breaches (to transferor)

84
Q

what are the two options for signing a TR1 as a transferee company?

A

option 1: 2 directors or director + co. secretary =

“executed as a deed BY [name of company] ACTING BY [a director and its secretary] [two directors]
signature of director:………
signature of [secretary][director]:….”

option 2: 1 director + witness =

“executed as a deed by [name of company] acting by a director
in the presence of:
signature of Director:….
signature of Witness:….
name (in block capitals):…..
address:…..”

SQE (3 decks)

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