Timed Paper (T3,4,5,6,9,10) Flashcards
Main types of evidence?
[T3 Intro to Civil Evidence]
Main types:
- Real (a ‘thing’)
- Documentary
- Oral (testimony)
& - Other forms of classification
When a party appeals to a higher court, what are they known as?
[T3 Intro to Civil Evidence]
Appellant
Note:
Party denying the appeal is called the respondent
2 types of real evidence?
[T3 Intro to Civil Evidence]
‘thing’ - e.g. physical object like car bumper
‘spoken to’ - e.g. expert speaking on blood sample, finger print
Simple phrase/rule for which party bears the burden of proof?
[T3 Intro to Civil Evidence]
He who asserts must prove
When party relies upon a fact that is essential to their case
Note:
- Once proved, the party has discharged their burden
- The defendant who asserts positive defence (not denial) must prove
What does plaintiff mean?
[T3 Intro to Civil Evidence]
Person who brings a case against another
An example of the presumption of - res ipsa loquitur (‘the thing speaks for itself’)?
[T3 Intro to Civil Evidence]
Claimant doesn’t have burden of proof in negligence cases
e.g. for an work injury caused by an explosion at a steel plant.
Note:
Claimant does not have to prove why explosion happened. It just shouldn’t normally happen
What is standard of proof?
[T3 Intro to Civil Evidence]
Standard to which essential facts must be proved/established
established on the ‘balance of probabilities’ (UK civil cases)
Note:
- How or to what extent the bearer must prove, in order to discharge his burden of proof
- UK criminal cases established ‘beyond reasonable doubt’
Does every fact a party relies upon in his case, need to be proven?
[T3 Intro to Civil Evidence]
No
Note:
- For time and cost efficiency
- Doctrine of Judicial Notice (UK)/ Judicial Knowledge (Scotland) empowers a court to declare that certain facts to exist without the need of evidence.
3 main types of Judicial Notice (UK) / Judicial Knowledge (Scotland)?
[T3 Intro to Civil Evidence]
- Notorious facts
- Personal knowledge
- Judicial Notice after enquiry
Note:
- Notorious facts - well known, e.g. night follows day, pushbike has no engine - pointless adducing evidence
- Judicial Notice after enquiry - verified by the court after checking with another source
A witness can refuse to answer a question, and a party can refuse to provide docs if privileged information. What are 4x main types of privilege in litigation?
[T3 Intro to Civil Evidence]
- solicitor-client comms (legal privilege)
- solicitor and not-the-client comms (e.g. with third-party pending litigation)
- in aid of settlement comms (without prejudice)
- against self-incrimination - for criminal prosecution only
What does post litem motam mean?
(for Scottish court)
[T3 Intro to Civil Evidence]
Communication made after it is apparent there will be litigation
“without prejudice” letters are not fully protected, the courts will decide what parts are privileged, or not.
What is the intent of the courts for maintaining privilege in docs?
[T3 Intro to Civil Evidence]
Promote settlement negotiations (oral and written)
Note:
“without prejudice” is good practice, but so common it is considered meaningless
A party in possession of privilege can waive privilege for their benefit. e.g. use part of privileged document for the case.
If party wants to retain privilege on rest of the doc, the test is whether the document is…?
[T3 Intro to Civil Evidence]
‘Severable’
Note:
e.g. document between solicitor-client communications would be privileged. If party uses part of this document, they risk waiving privilege on full document, that may work against them.
Similar fact evidence is where, in the case of AvB, A may wish to use evidence of same issue, involving BvC
e.g. A accuses B of piracy. A uses example of B pirating C’s music copyright
(no answer required)
[T3 Intro to Civil Evidence]
-
When giving ‘weight’ to witness evidence, what two factors will they consider?
[T3 Intro to Civil Evidence]
Credibility - truthfulness
Reliability - how well placed they are to give accurate evidence
What is hearsay evidence?
[T3 Intro to Civil Evidence]
Evidence of what someone else has said or written
not direct from the evidence-giver
Precognition is an account taken from a witness and put into words of the statement-taker.
If account is in words of a witness, it is a statement.
Why is the distinction between precognition and statement crucial, in Scotland?
[T3 Intro to Civil Evidence]
Precognition is inadmissible
Statement is admissible
Note:
- Precognition is filtered through the mind of another
- Unlike verbatim (word for word)
Corroborated evidence is evidence from…?
[T3 Intro to Civil Evidence]
2+ sources
Rules on oral evidence (witness statements and expert evidence) are governed extensively by which statutes (e.g. rules/ acts)?
[T3 Intro to Civil Evidence]
Civil procedure rules 1998
Civil evidence act 1972 & 1995 Civil evidence (Scotland) act 1988
Most people are competent witnesses. In England, the general rule is that witnesses who are too young or mentally ill are not competent witnesses, and their evidence generally will be excluded.
Of competent witnesses, the test for competence requires the witness to be able to…?
[T3 Intro to Civil Evidence]
speak/communicate coherently
speak the truth - understanding and obligation to
Note:
The Vulnerable Witnesses (Scotland) Act 2004 appears to abolish the competence test
First stage of examination of a witness, in court. And the 2 further optional stages?
[T3 Intro to Civil Evidence]
- Examination in chief - questions by eliciting party
- Cross-examination - by opposition
[optional and common] - Re-examination - to clarify/ repair damage by cross-examination, same issues only not new issues
[optional but less common]
During examination of a witness, when is it permitted (and common) to use leading questions?
[T3 Intro to Civil Evidence]
In cross-examination by opposition
Note:
- Not by eliciting party in examination in chief and re-examination
- For uncontested matters, it is acceptable to lead a witness, with permission of opponent
Usually, only expert or skilled witnesses may give opinion evidence. Other witnesses must only speak to the facts. True or false?
[T3 Intro to Civil Evidence]
True
An experts duty is to help the court or be loyal to the party paying their fees?
[T3 Intro to Civil Evidence]
Help the court
Edge & Mills note that rules of evidence are based on four key concepts?
(to determine if evidence is valuable)
[T3 Intro to Civil Evidence]
- Relevance (capable of proving/disproving a fact?)
- Weight (credibility & reliability)
- Probative value (= relevance + weight)
- (risk of inappropriate use) Prejudicial effect
Note:
- RGU add - admissibility
- Not the only filters to establish if evidence is valuable
How does a party discharge evidential burden borne by him?
[2012 Modern Law of Evidence]
By adducing sufficient evidence
Presumptions - sometimes courts use the device of presumptions to assist it in reaching a conclusion on whether the burden of proof has been discharged.
A presumption allows the court to infer (assume, presume) that a situation exists unless and until the contrary is proven. Many of the presumptions applicable in civil cases are relatively obscure, and not truly relevant to you in your professional lives
(no question)
[T3 Intro to Civil Evidence]
-
The Best Evidence Rule requires that the..?
[T3 Intro to Civil Evidence]
best available evidence should always be provided
Note:
If court takes view that best evidence is not produced, secondary evidence of a fact may be disallowed as inadmissible. Sometimes distinction is expressed as between primary evidence (the best evidence) and secondary evidence
When a party wishes to prove the content of a document, he must produce the original document. Will a copy or oral evidence, as to its terms normally be sufficient?
[T3 Intro to Civil Evidence]
No
Note:
Except when original has been lost, as long as it is established that there has been a reasonable search conducted for it, secondary evidence may be produced
Communication must be directly related to the giving of advice. If not, privilege does not attach
(no question)
[T3 Intro to Civil Evidence]
-
Motive for Seeking Disclosure - where the nature of the solicitor-client relationship is the very issue being probed by the court, privilege will not apply
(no question)
[T3 Intro to Civil Evidence]
-
Communications in Furtherance of a Crime - Where client is using solicitor-client communications privilege in a case, where he is alleged to have been involved in a criminal act directly involving solicitor, privilege will not apply
(no question)
[T3 Intro to Civil Evidence]
-
Describe what is the Power to Call Statement-Maker?
[T3 Intro to Civil Evidence]
When party wishes to call a witness to give hearsay evidence
the opponent may wish to call the statement maker himself
If a witness is competent, usually he/she can be forced to give evidence, providing there is no legal privilege - true or false?
[T3 Intro to Civil Evidence]
True
What is an affidavit?
[T3 Intro to Civil Evidence]
A form of sworn written statement
There are difference kinds of burdens that are variously called, for example, the evidential burden, the legal burden and tactical burden - true of false?
[T3 Intro to Civil Evidence]
True
What are the 5 elements required to form a contract?
[T4 Intro to Contractual Obligations]
- Intent (to create legal relations)
- Capacity (legal capacity)
- Offer
- & Acceptance
- Consideration (UK) or legally binding promise (Scotland)
Note:
- No impediment (objections or hindrances)
Definition of a contract?
[T4 Intro to Contractual Obligations]
Agreement between 2+ parties
Creates legally binding rights and obligations
Contracts can be written or oral. However, there are some formalities.
Q1. UK - what contract must be in writing?
Q2. Scotland - what additional type of contract must be in writing? (main statutory provisions are found in Requirements of Writing (Scotland) Act 1995)
[T4 Intro to Contractual Obligations]
A1 & A2. Land & buildings (rent, buy, sell)
A2. Non-business related promises
Note:
When contract/promise not in writing, still be valid if
(a) 1 party acted in reliance promise
(b) with knowledge or acquiescence (implicit consent) of other party.
(c) that the person so acting has been affected to a material extent
(d) that person would be adversely affected to a material extent if promise/contract was declared invalid
In Neocleous v Rees 2019, the court rendered a land transaction document signed by email auto-signature - true or false?
[T4 Intro to Contractual Obligations]
True
The commercial nature of construction contracts, means there is almost always ‘intention’ to create legal relations.
However, in family/social settings, mostly no ‘intention’ to create legal relations.
(no question)
[T4 Intro to Contractual Obligations]
-
Capacity - which 4 types of peoples are regarded as being unable to legally contract?
[T4 Intro to Contractual Obligations]
- Children (u18’s except for ‘necessaries’)
- Mentally incapacitated
- Alcohol (although difficult to have contract rejected on this basis)
- Employees not in company constitution (the 2 docs are articles of association and memorandum of association e.g. a directors)
What are some essential components/terms of an offer?
(offer, not contract)
[T4 Intro to Contractual Obligations]
- Price
- Quantity
- Time of delivery
- Payment mechanism
Note:
If unclear, could be argued not a ‘meeting of minds’ (consensus ad idem)
What is an invitation to treat?
[T4 Intro to Contractual Obligations]
Invitation to negotiate/ for other party to make an offer
Note:
- falls short of making an offer
- e.g. a request to tender
- Part of the pre-contractual negotiations but falls short of an offer.
- “Any negotiating statement falling short of an offer which furthers the bargaining process”
- Communication is not intended to be accepted to form contract
A request to tender is considered as an invitation to treat, seeking tender return offers, to be accepted by Employer, if he so chooses to.
However, there are 2 exceptions in which the RTT itself, can form an offer?
[T4 Intro to Contractual Obligations]
- Must accept most competitive bid
(either highest/lowest depending on contract) - Consider all compliant tenders
A unilateral offers is?
[T4 Intro to Contractual Obligations]
Open for anyone to accept
Note:
Must be very prescriptive about how the offeree may accept the contract
What is revocation (or retraction) of offer?
[T4 Intro to Contractual Obligations]
If offer is withdrawn before it is accepted, it ceases to be open to acceptance
Note:
- Irrespective of how advanced negotiations are
- Revocation must be communicated and received by opposite to be effective (doesn’t have to be e.g. a read email, just delivered)
Example of revocation by implication?
[T4 Intro to Contractual Obligations]
Counter-offer or 2nd offer - from the original offeree
Note:
Therefore, you cannot except s/s offers
Acceptance of an offer must be communicated.
Q1. Electronic communications are generally treated as effective upon being sent, or upon receipt?
Q2. ‘Postal rule’ provides acceptance is effective upon time of postal, or upon being delivered?
[T4 Intro to Contractual Obligations]
- Upon receipt
2. Upon time of post
Retraction of acceptance is only possible under what circumstance?
[T4 Intro to Contractual Obligations]
When acceptance is not delivered instantly,
retraction is communicated before, or at the same time, as acceptance
Silence will not suffice as acceptance of an offer.
However, there are two circumstances in which it will?
[T4 Intro to Contractual Obligations]
- renewal of an existing insurance policy
- where acceptor agrees silence can be treated as acceptance e.g. “if I don’t call you by tomorrow, assume I’ve bought it.”
If offer and acceptance do not match completely, is there a contract?
[T4 Intro to Contractual Obligations]
No
Note:
- e.g. labour only vs. supply and fit
- the mirror image rule
If party A makes a counter offer (or qualified acceptance) to B.
B rejects counter offer.
Can A accept B’s previous offer?
[T4 Intro to Contractual Obligations]
No, A’s counter offer (or qualified acceptance) rejects/ kills-off B’s previous offer
If parties to an existing contract seek to vary the terms during or after it has been agreed, any new promises need new consideration. Under the past consideration rule, if no new consideration, is any new promise unenforceable?
[T4 Intro to Contractual Obligations]
No
Scots law makes distinction between offer and promise.
Promise - whereby nothing is to be given or performed by one party
Offer - …?
[T4 Intro to Contractual Obligations]
Something to be done by offering party
It’s not binding till accepted
What is an example of consideration, under contract law?
[T4 Intro to Contractual Obligations]
Usually takes form of money,
but it can be goods, labour, promise to do something (or not)
Note:
- Doctrine of consideration requires existence of bargain (but not a good one) (side note, doctrine does not exist in civil law)
England & Wales:
- Party B has to do something, to obligate party A to pay
- e.g. A offers to give something to B. If B does not have to do anything in return, then no legal obligation for A to complete offer to give something to B
Scotland:
- If A’s promise can proven, its obligation is enforceable (consideration is not requirement for a valid contract)
Define privity of contract?
[T4 Intro to Contractual Obligations]
Only parties to a contract can enforce it (in court)
Note:
Except for
- Tort/delict (duty of care extends to third-party)
- Third-parties cannot (unless collateral contract)
- Contracts (Rights of Third Parties) Act 1999 (third-party can enforce a term if it benefits third-party)
Contracts under civil law system must satisfy what 3 criteria?
[T4 Intro to Contractual Obligations]
Consent to bound
Capability
Lawful and definite subject matter
(CCL)
In common law you can revoke an offer. In civil law, you cannot revoke before specified time period in contract, or if none, then a reasonable time period - true or false?
[T4 Intro to Contractual Obligations]
True
Can contracts can be agreed in any form?
[T4 Intro to Contractual Obligations]
Yes.
Note:
orally, by formal deed, exchange of faxes, e-mails, telexes, etc
Requests for Further Information - should be distinguished from a counter-offer. Sometimes info sought will be simply to clarify a point in the offer.
e.g. person offers to sell TV, potential buyer asks whether cash is required, or if cheque is okay. Inquiry is not a counter offer. Its not suggesting alternative terms, but attempting to clarify the way in which the contract will be performed and whether a specific type of performance will be acceptable
(no question)
[T4 Intro to Contractual Obligations]
-
Battle of the forms -
court decided buyer’s terms prevail (court applied strict offer and acceptance scenario: offer made by buyer when order placed. Offer accepted by seller upon delivery.
Delivery notes and invoices came too late
(no question)
[T4 Intro to Contractual Obligations]
-
Continental Tyre and Rubber Co. Ltd. v Trunk Trailer Co. Ltd
Provide a practical example of where conduct can complete the contract?
[T4 Intro to Contractual Obligations]
Offer casual job, and they simply turn up for work
Note:
No written contract signed, no oral acceptance
What is meant by past consideration is not good consideration?
[T4 Intro to Contractual Obligations]
Person cannot rely on act that has happened,
prior to contract being made,
as consideration
To determine whether pre-contractual statements form part of contract or not, what test does court use?
[T5 Content of a Contract]
Test of detached objectivity
based on intention of parties (as seen from eyes of 3rd party)
Note: Criteria:
- Importance of truth of statement (Bannerman v
White and Couchman v Hill).
- Special Knowledge (Dick Bentley Productions Limited v Harold Smith (Motors) Ltd, Oscar Chess Ltd v Williams).
- Request to verify (Ecay v Godfrey)
- Passing on information (Routledge v McKay)
- Length of time (Routledge v McKay)
- Where a contract is formally recorded
What is common law rule known as parole evidence rule/ what does it state?
(England & Wales)
[T5 Content of a Contract]
Parties to written contract are not permitted to ‘add to, vary or contradict that writing’
Note:
- promotes certainty and predictability
- applies where contract is wholly in writing
The common law rule known as parole evidence rule (England & Wales).
In Scotland, what is the similar, but statutory Act called?
[T5 Content of a Contract]
Contract (Scotland) Act 1997
s.1 Extrinsic evidence of additional contract
Note:
Where a document appears to comprise all express terms of contract
How to ensure pre-contractual statements are included or excluded?
[T5 Content of a Contract]
All terms written into the contract
Note:
although presumption is written contract contain all terms, it can be rebutted (challenged) by evidence to the contrary
What is the intent of an ‘entire agreement’ clause?
[T5 Content of a Contract]
Certainty about what forms part of a contract
Note:
This means that any undertaking etc. not stated within document cannot be later argued to form part of the contract
Most commonly, express terms are found in written contracts. However, can an express term be agreed orally?
[T5 Content of a Contract]
Yes
Note:
However, courts mainly focus on written terms
Incorporated terms.
- what are incorporated terms?
[T5 Content of a Contract]
Whole terms not found in main contract document.
Contract refers to terms in another document
Incorporated terms.
- what are terms incorporated by notice?
[T5 Content of a Contract]
Things like ‘refund within 28 day only’ signs in shops
Note:
4 stages process for court to review effectiveness of notice, e.g. terms must be clear, fair, or highlighted if unusual
Incorporated terms.
- what are terms incorporated by course of dealing?
[T5 Content of a Contract]
Parties who contract regularly. If on one occasion contract was not incorporated, aggrieved party can rely on their previously agreed std terms.
Implied terms.
- what are implied terms?
[T5 Content of a Contract]
Assumed to exist in a contract.
Not explicitly agreed between the parties
but law assumes that they exist.
Note:
- same standing as express terms and can be fully enforced.
- 2 categories - terms implied by law. and implied in fact and custom.
Implied terms.
- what are terms implied in/by fact?
[T5 Content of a Contract]
Implied into contract only where courts accept that term is necessary to make contract work
Note:
Ultraframe (UK) Ltd. V Tailored Roofing Systems Ltd
Implied terms. Implied in/by fact terms.
Privy Council set out key considerations for implication of terms into contracts:
(1) Term is reasonable and equitable;
(2) Necessary to give business efficacy to contract, so that no term would be implied if contract was effective without it;
(3) So obvious that “it went without saying”;
(4) Capable of clear expression;
(5) Not contradict any express term of the contract
(no question)
[T5 Content of a Contract]
-
Note:
- BP Refinery (Westernport) Pty Ltd v Shire of Hastings
- Further, UK Supreme Court cited above case, and made additional observations in Marks & Spenser Plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd
Implied terms.
- what are terms implied by law?
[T5 Content of a Contract]
Occasionally courts prepared to insert term into contract to cover gap(s) in contract.
Note:
2 conditions:
- Type of contract must be sufficiently common to
enable court to identify contractual obligations typical to that contract type.
- Parties have not addressed the matter in express terms
Interpretation of contract terms.
- Words can be ambiguous. The overriding principle that the courts take to is to try to establish the…?
[T5 Content of a Contract]
intention of the parties
Note:
Rainy Sky SA and others v. Kookmin Bank
Interpretation of contract terms.
The courts gauge intention of parties objectively, by looking at the actions and words of parties in context, at the time - not by asking parties now what they meant by words used (subjective approach).
In summary, the key legal principles are…:
(no question)
[T5 Content of a Contract]
Natural and ordinary meaning
= words used and intent
Surrounding circumstances (or factual matrix) principle = business common sense/situation
Exclusion of prior negotiations principle
= pre-contract negotiations excl. as intentions change
Rectification
= where expressed contract terms in mistake
Non est factum
= party who signed written contract can argue he was not able to understand it
Exemption clauses, namely the contra proferentem principle
= any clause considered ambiguous should be interpreted against the interests of party that created
