1
Q
Misrepresentation through conduct
A
Only actionable if the claimant can see or hear the attempted misrepresentation -> i.e. they are induced by it
2
Q
Professional owing a duty of care for free advice
A
if they have special skill and know the advice will be RELIED on
3
Q
who CANNOT elect trial at CC
A
summary only offences
4
Q
Capital losses
A
can ONLY be set off against chargeable gains in the current OR subsequent accounting periods
5
Q
Part 36 offer relevant period has expired
A
- if there is no indication the offer has been withdrawn -> it can still be accepted by serving written notice of acceptance
no application to the court is necessary
REMEMBER: A Part 36 offer can be accepted at any time until it is withdrawn/proceedings are concluded
6
Q
acceptance in contract law
A
- must be unequivocal
- mirror image rule (cannot counter material terms)
- must be in a reasonable time
7
Q
discharging an occupier’s duty to a trespasser
A
where the occupier takes all reasonable steps to to give warning of the danger concerned or to discourage persons from incurring the risk.
8
Q
revocation of an offer
A
must be communicated to the offeree BEFORE acceptance
9
Q
where the type of damage suffered is reasonably foreseeable
A
the defendant is liable for the full extent of those damages (even if aggravated by C’s own weakness)
10
Q
personal and non delegable duty of employer
A
- provide a safe system of work
- provide competent fellow employees
- provide safety equipment
11
Q
where a claimant’s injury arises directly from their own illegal act
A
- illegality defence applies
- usually bars their claim entirely
12
Q
obiter statements
A
- significant persuasive effect
- not binding
13
Q
partial payment by a third party in full and final settlement (effect)
A
discharges the debt
REMEMBER the promisor will not be able to pursue the promisee for the remainder
14
Q
preference with a connected person
A
- desire to prefer is PRESUMED
defence would be an absence of a desire to prefer
15
Q
notice period for NCA (re money laundering)
A
7 working days
16
Q
challenging secondary legislation (e.g. SIs)
A
- challenge its lawfulness in the Admin Court
- if successful -> the court can quash the SI
17
Q
recovery of expenses (after frustration)
A
- expenses may be set off against advance payment (but expenses CANNOT be more than the advance payment)
18
Q
factors considered in private nuisance re factory’s use of land (is it unreasonable)
A
time and duration; when the nuisance takes place, how long it continues and how frequently it is repeated
19
Q
planning permission and nuisance
A
planning permission does NOT authorise a nuisance
20
Q
CPA claims
A
- no claim can be brought unless property damage exceeds £275
- does apply to claims where someone suffers a damage as a result of the defect
21
Q
when will the court grant an injunction?
A
if
a. serious question to be tried
2. adequacy of damages (for either party)
3. balance of convenience
22
Q
person claiming incapacity for contract
A
they must establish that they
1. did not understand what they were doing; and
2. the other party knew that to be the case
23
Q
where the court’s judgment is in between the two Part 36 offers
A
the unsuccessful party pays the costs of the successful party on the standard basis
24
Q
fixed fee agreements
A
- common for wills or conveyancing
- invoice the client for the fixed amount agreed
- any excess fees must be written off
25
types of mistake in contract law
* common - same mistaken belief (void abinitio)
* mutual - when both parties are mistaken, but about different things, leading to a lack of true agreement (void)
* unilateral (void)
26
effect of a unilateral mistake
void where
1. a party makes a mistake as to terms or identity of goods
2. the other party knows and takes advantage of it
REMEMBER a unilateral mistake does not void a contract unless the other party knew or ought to have known
27
exception to the entire performance rule in contract
voluntary acceptance of partial performance
28
what happens when a loan is written off?
* tax paid by company to HMRC will be refunded to the company
* the shareholder will be deemed to have received a dividend equal to the amount of the loan written off
29
receiving an email by mistake
do not read the email and return it to the supplier's solicitor
30
what should an occupier's warning contain?
* what the danger is
* where it is
* how to avoid it
31
when might a Tomlin order be needed?
if parties agreed on terms which go beyond the scope of the dispute
32
expectation loss
* where you do not receive what you were promised
* aims to put C in the position they would have been in had the contract been properly performed
33
two ways of measuring expectation loss in defective works cases
1. cost of cure (fixing the defect)
2. diminution in value (diffence between value of expectation vs reality)
REMMEBER diminution in value is only used where there is evidence that cost of cure would be unreasonable
34
reliance loss
compensates a claimant for wasted expenditure incurred in reliance on the contract
(when expectation loss is uncertain or impossible to calcualte)
Put the claimant back in the position they would have been in had the contract never been made.
35
loss of amenity
compensates for loss of enjoyment, pleasure, comfort, or satisfaction resulting from a breach of contract
NOT available for commercial contracts
known as a non pecuniary expectation loss
36
In a multi-track claim, where early disclosure on one issue (e.g. liability) may lead to settlement and avoid unnecessary costs on other issues (e.g. quantum), how should disclosure be managed?
The claimant should ask the court to order disclosure in stages (or by issues) under CPR 31.5(7), so that disclosure on liability is dealt with first and disclosure on quantum is only ordered if necessary.
37
Civil CLS funding
* means and merit test
can be available for family disputes
38
special damages
* provable; and
* quantifiable financial losses at the time of trial
39
general damages
cover future financial losses which cannot be specifically proven; and include money for pain, suffering and loss of amenity
40
loan to a director of a holding company
* shareholder approval usually required via OR of both the company and holding company
BUT where the wholly owned subsidiary exdeption applies: shareholder approval is only needed of the holding company
41
interference with freedom of expression
* prescribed by law
* fulfils a legitimate aim in a proportionate way
42
If a party realises before a court-ordered deadline expires that it cannot comply with the deadline for serving a costs budget (Precedent H), what should it do first?
Ask the other party to agree an extension of time, provided the extension is no more than 28 days and does not put any hearing date at risk.
43
Under the convention of collective ministerial responsibility, how may a Secretary of State act during Cabinet discussions, and what must they do if they lose the debate?
A Secretary of State may argue strongly and freely within Cabinet, provided Cabinet discussions remain confidential. If the Cabinet reaches a decision they opposed, the minister must either publicly support the decision or resign.
44
indirect bias
arises from personal connections that create a real possibility of bias; proof of actual bias is not required
45
A public decision-maker is a close friend of a successful bidder. There is no financial interest and no proof of actual bias. Can the decision be challenged?
Yes — for indirect bias.
If a fair-minded and informed observer would see a real possibility of bias, the decision is procedurally improper.
46
prohibition on referring or receiving referrals
in respect of C#s claim for damages in respect of PI or death
47
sporting association JR
unlikely that the decision taken is seen to involve a public function
48
A seller breaches by delivering goods late. The buyer refuses late delivery (reasonably), buys replacement goods at a higher price, and avoids further losses. What damages will the buyer recover?
Expectation damages = cost of substitute − contract price.
REMEMBER you can also recover any deposit paid
REMEMBER: A claimant who reasonably obtains substitute performance can recover the difference in price, even if they successfully mitigate other losses.
REMEMBER mitigation does not cancel original loss.
49
can the court override and substitute its finding for the Home Office's decision?
NO but it can find the Home Office in contempt of court
REMEMBER the courts can exercise oversight and control over the execution in certain matters (e.g. asylum)
50
Stannard v Gore
tyres spread the fire and the claim failed as it was not the tyres that escaped (i.e. the thing that was brought onto the land - therefore Rylands v Fletcher did not apply in this case)
51
vicarious liability for intentional tort
possible if there is a sufficient connection between the employee's position and the tort
52
A private company wants to give a loan to a director. All shareholders agree. What is the fastest way to obtain shareholder approval under the Model Articles?
Circulate an ordinary written resolution. It is passed once shareholders representing over 50% of total voting rights sign it.
53
A buyer tells a seller a specific purpose for which goods are required. The seller supplies goods unsuitable for that purpose. Does the buyer have a remedy under the Sale of Goods Act 1979?
Yes — the goods were not fit for the particular purpose made known to the seller. This is a breach of the implied term under S.14(3) of the Sale of Goods Act 1979.
54
A shareholder in a private company is removed as a director and employee in a small company where all shareholders were originally equal. What is the best claim to bring?
Unfair prejudice under s.994 Companies Act 2006, because the company is likely a quasi-partnership.
55
amending a party in proceedings
* court's permission is required UNLESS the claim form has not been served
56
what must be filed at CH upon incorporation of a company with MA
The application for registration (Form IN01); the Memorandum; and the incorporation fee for Companies House.
57
person under a disability when a cause of action accrues (e.g. minor)
the limitation period starts to run from when the disability ends
58
CVA binding on who?
* all unsecured creditors
* note: the bank is not bound unless it consents
REMEMBER has to be approved by the requisite majority of creditors
59
effect of taking out a loan on company's gearing
INCREASES gearing
note: may nhave no adverse effect on the earnings per share
60
what is gearing
long term debt to equity ratio
61
A company grants a debenture to a bank and a personal guarantee is provided by the MD. What must be sent to Companies House to ensure the bank’s security is valid?
Form MR01 + a certified copy of the debenture + the relevant fee.
62
warrant of control
for debts under £5k (county court judgments)
63
Stages of a Public Bill in HoC
First Reading > Second Reading > Committee Stage > Report Stage > Third Reading
64
reasonableness test under UCTA
focused on impact and fairness of the clause in the context of the contract and parties' relationship
e.g.
* fair notice
* bargaining power
* nature of the goods
65
consequences if shareholders do not approve a director's service contract for 2+ years
* contract remains valid
* guarantee period is reduced to 2 years
* company can terminate it on reasonable notice after the 2 years, ensuring the director's employment does not extend beyond what is permissible without shareholder approval
66
when is a DAML SAR requirement
when a solicitor SUSPECTS that a transaction involves criminal property and seeks consent to continue
67
divisible obligations in contract
if a contract is explicit -> the contractor is entitled to payment for each part completed, REGARDLESS of the completion of the entire contract
* note: not subject to reduction
68
When is judicial review something that CANNOT be excluded?
if the regulation b reaches fundamental public law principles (e.g. fairness/legality) or exceeds the scope of delegated powers
69
can parliament legislate to restrict judicial review?
yes but only in certain circumstances
70
noscitur a sociis
ambiguous words should be interpreted in the context of words surrounding them
71
Jarvis v Swan Tours
loss of enjoyment in a holdiay context DOES qualify for damages beyond financial loss -> when the primary purpose of the contract is frustrated
72
damages for physical inconvenience caused by structural defects
MAY be recoverable - but not for mental stress alone
* Modest damages for physical discomfort can be awarded
73
short term right to reject goods unders CRA and claim a full refund (NON PERISHABLE GOODS)
where the defect arose within 30 days period for non perishable goods
74
short term right to reject goods unders CRA and claim a full refund (PERISHABLE GOODS)
lasting only as long as it's reasonable to expect them to last (e.g., their use-by date)
75
conditions for applying for a search order
* potential or actual damage must cause serious harm
* must be a real possibility that D may destroy relevant material before an on-notice application can be made
* clear evidence that relevant material is in D's possession
76
sparks burning flowers beds
recognised form of private nuisance
77
persistent noise disrupting individual's ability to work
constittues substantial interference with enjoyment of homoe (recognised form of private nuisance)
78
police duty of care
owe no duty of care to protect individuals from harm caused by third parties
* REMEMBER: unless the police explicitly assume responsibility for an individual's safety, they cannot generally be held liable for failing to act
79
when is a debt relief order (DRO) available)
* where unsecured debts do not exceed £500,000
* disposable income is no more than £75 per month
* total assets are worth no more than £4,000 (excluding a car worth up to £2,000)
REMEMBER THIS IS to write off their debts after 12 months, freezing repayments and stopping creditor action during that time (12 month moratorium)
80
where is there a presumption of undue influence (trust and confidence)
* parent to minor child
* solicitor to client
* religious advisers to followers
* doctor to patient
REMEMBER: husband to wife does NOT have this presumption
81
voting requirements for creditors
* majority of total vlaue of creditors present and voting
* less than 50% of unconnected creditors voting AGAINST
82
non compliance of the other party
* warn the opposing party of your intention to apply for an order
* if they do not rectify the situation promptly, then apply to the court for such an order
83
when are rescuers treated as primary victims?
if they are exposed to physical danger during an incident
84
how are constitutional conventions enforced?
by political actors (e.g. PM; parliament and public opinion)
85
who is responsible for upholding conventions?
political actors
86
s.149 Road Traffic Act
excludes the defence of voluntary assumption of risk (i.e. consent) for road traffic accidents
BUT damages may be reduced for contributory negligence
87
notice of discontinuance against one of two Ds
serve the notice on ALL parties involved (requires written consent of all parties or permission of the court to abandon the remedy against the remaining D)
88
Pinnel's case
part payment of a debt alone does NOT discharge the full amount unless accompanied by additional consideration/change in terms
89
what must be included in a trial bundle
(a) the claim form and all statements of case;
(b) a case summary and/or chronology where appropriate;
(c) requests for further information and responses to the requests;
(d) all witness statements to be relied on as evidence;
(e) any witness summaries;
(f) any notices of intention to rely on hearsay evidence under rule 32.2;
(g) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not—
(i) contained in a witness statement, affidavit or experts’ report;
(ii) being given orally at trial; and
(iii) hearsay evidence under rule 33.2;
(h) any medical reports and responses to them;
(i) any experts’ reports and responses to them;
(j) any order giving directions as to the conduct of the trial; and
(k) any other necessary documents.
90
DBAs (re normal litigation)
* 50% of damages recovered
* includes VAT and counsel fees
* does not include other disbursements
91
DBAs PI cases
* 25% of damages recovered
includes VAT and counsel fees
* does not include other disbursements
92
how long does a TiB have to take action regarding the bankrupt's interest in a family home
3 years from the date of the bankruptcy
if they fail to do this: the interest automatically re-vests in the bankrupt
93
setting traps to prevent burglars (outside home9
* deliberate traps to cause serious harm are unreasonable (excessive)
* balancing public policy and deterrence
94
death of a shareholder
title passes to the PR -> they are entitled to any dividends declared on the shares from the date of the shareholder's death
NOTE: they cannot exercise voting rights unless registered as a shareholder
95
transfer of appeals to CoA
if it raises an important point of principle or practice or some other compelling reason
96
Family Court and Family Divison of HC
both can hear cases involving divorce, child custody and DV
* REMEMBER family divison deals with more complex/high profile cases and sensitive matters (e.g. child abduction)
97
appeals from the HC in criminal cases
heard by UKSC if involves a point of law of general public importance
98
reporting on CGT
* report the gain within 60 days of completion using the UK Property Reporting Service
99
default accounting reference date
* automatically set as the last day of the month of incorporation
100
validity of delegated legislation
can be challenged through JR - may be declared invalid if the authority exceeded its powers/breached procedural requirements
101
passing a written resolution
when the required majority of eligible members signify their agreement
102
indemnity insurance
recognised bodies and licensed bodies (e.g. LLPs and partnerships that are limited companies) must maintain a minimum of £3 million in indemnity insurance for any one claim (regardless of the types of legal activities they perform)
103
effect if a charge is not regsitered
becomes void against the liquidator and any creditor fo the company
BUT it remains valid between the company and the charge-holder
104
liability for omissions in negligence
only where there is a specific statutory or contractual duty to act
105
Unspecified claims: D makes an offer to settle that accompanies admission of liability
Court serves notice on C asking if they accept the offer -> if yes, judgment is entered into in that amount. If C accepts the amount but not proposal for payment, court will make an order based on assets, income and expenditure of D
106
FLK1
flashcards
Decks in class (5)
# Cards
