🟢FLK1 Random Flashcards

(249 cards)

1
Q

Can someone else bring proceedings as the claimant’s representative?

A

No

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2
Q

What must be filed at the registrar of companies following the adoption of new articles of association?

A

-The shareholder resolution
-The new articles

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3
Q

Where there is overlap between a prerogative power and a statute, which prevails?

A

The statute prevails

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4
Q

Can vicarious liability apply to criminal behaviour?

A

Yes

-If the employee’s act is sufficiently closely connected to his employment

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5
Q

Under the Equality Act, what must be done to ensure that the disabled employee is not placed at a substantial disadvantage compared to those who are not disabled?

A

Reasonable adjustments must be made for the disabled employee

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6
Q

When is a solicitor under an obligation to identify and verify the identity of a company’s shareholder?

A

If they own more than 25% of the shares in the company

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7
Q

Is a company under a duty to minimise its losses?

A

Yes

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8
Q

If a creditor agrees to accept less than the debtor owes, what must be provided in return?

A

Consideration must be provided in return

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9
Q

What is the literal rule?

A

Judges follow the plain, ordinary meaning of words

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10
Q

What is the golden rule?

A

Modifies the literal rule to avoid absurd interpretations

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11
Q

What is the purposive approach?

A

The courts look to see what the purpose of the law is

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12
Q

When is a security for costs application made?

A

Made by D if they are worried C will not be able to cover D’s costs if they lose

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13
Q

Are gifts and transfers between spouses exempt from capital gains tax?

A

Yes

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14
Q

Does a private company have to have a company secretary?

A

No

-The board can appoint one via board resolution and must inform Companies House within 14 days

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15
Q

What is Article 5 ECHR?

A

Requires that the state does not arrest or detain someone arbitrarily

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16
Q

Under FSMA, what is the specified act of arranging?

A

Includes arranging for an investment in shares in some way

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17
Q

When does an exclusion apply to the specified act of arranging?

A

If the solicitor merely introduced the client to an FCA-authorised 3rd party and has no further role to play

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18
Q

What is the notice requirement for a board meeting?

A

That reasonable notice is given

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19
Q

Can a board meeting be held remotely?

A

Yes

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20
Q

What must an offer be?

A

Clear and certain with an intention to be bound

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21
Q

What is victimisation?

A

Prohibited conduct (e.g. not employing someone for a job) based on their action

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22
Q

What is pre-action disclosure?

A

Disclosure before the claim form is issued and proceedings have not started

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23
Q

In private nuisance, when will the defence of prescription operate?

A

If the claimant has been affected by it for 20 years or more

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24
Q

What is the general principle in relation to a duty of care for an omission?

A

There is no duty of care from omission

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25
What is a Tomlin order?
Keeps some terms of the agreement confidential
26
If D fails to deliver rare or extremely valuable goods under a contract, what can C do?
C can make a claim for specific performance -Because damages will not likely be an adequate compensation
27
When must a document be disclosed?
If it is or has been under the party’s control and is one which the party relies or is adverse to their case
28
What is Article 8 ECHR?
The right to a private and family life
29
If a party provides a practical benefit by completing a pre-existing obligation on time, at the other party’s promise to pay more, resulting in that other party gaining a benefit or avoiding a loss, Will this amount to consideration?
Yes -The practical benefit amounts to consideration
30
Is a party entitled to the extra consideration where a party has done more than what their obligations already are, and the other party has agreed to pay for it?
Yes
31
When can a claim be established in Rylands v Fletcher?
The land must have been used in an extraordinary and unusual way when the thing escapes
32
What is the ‘cash flow test’?
The company is unable to pay its debts as they fall due
33
In order to appoint an administrator out of court, what must a creditor hold?
A qualifying floating charge over all or most of the companies assets
34
What is the main purpose of the listing questionnaire?
To assist the court in making necessary arrangements for trial
35
What is the takeover exclusion to the activity of advising in specific investments?
If the client is buying or selling at least 50% of shares in a company
36
What is negligent misstatement?
A false statement they believe to be true, but without reasonable grounds for belief, and another person relies on that statement to their detriment
37
What is a shareholders liability in a limited company?
Liability is limited to the amount they invested, plus any amount unpaid on the shares
38
In a board meeting does the chair have a casting vote in a deadlock?
Yes
39
In a general meeting, does the chair have a casting vote in a deadlock?
No
40
When can age-related direct discrimination be allowed?
If it is a proportionate means of achieving a legitimate aim
41
In terms of loss relief, what profits can trading losses be set off against?
Any profits -Carry across -Carry back -Carry forward
42
In terms of loss relief, what profits can capital losses be set off against?
Can set off against capital gains -Carry across -Carry forward
43
Only a party to a contract can sue or be sued? True or false?
True -A 3rd party has no right to enforce a contract, even if the contract was made for their benefit -Unless the Rights of Third Parties Act applies
44
In what circumstances can a 3rd party enforce a contract
Under the Rights of Third Parties Act If: -The contract provides they may enforce it; or -The term intends to confer a benefit on them
45
What is the personal allowance for income tax?
£12,570
46
What is the basic rate income tax band?
£0 - £37,700 @ 20%
47
What is the higher rate income tax band?
£37,701 - £125,140 @ 40%
48
What is the additional rate income tax band?
Over £125,140 @ 45%
49
What is the personal savings allowance for a basic rate tax payer?
£1,000
50
What is the personal savings allowance for a higher rate tax payer?
£500
51
What is the personal savings allowance for an additional rate tax payer?
£0
52
How do you calculate corporation tax?
Income profits + Chargeable gains = Total taxable profits Apply %
53
Under income tax, what does the marriage allowance enable?
Enables a basic rate tax payer to transfer £1,260 of unused personal allowance to their spouse if they are also a basic rate tax payer
54
Is an individual partner in a partnership responsible for the tax on their share of the gains?
Yes -The partnership is not taxed directly
55
What can VAT not be recovered on?
Business entertaining and cars
56
When must a business register for VAT?
When turnover is above £90,000
57
Is stamp duty land tax on a new commercial building payable on the price which includes or excludes VAT?
Payable on the VAT inclusive price
58
Can VAT be reclaimed on vehicles?
When used exclusively in a business
59
How do you calculate VAT on a VAT inclusive price?
Divide the price by 6
60
On the grant of a lease, what is stamp duty land tax due on?
The premium and the present value of the lease
61
Should a partnerships entire annual profit be allocated among the partners or can they choose how much to allocate?
The entire annual profit must be allocated among partners
62
In the case of children claiming after the death of their sole parent, what can they claim for?
Damages for their loss of dependency
63
Under the Consumer Protection Act, is damage to the defective product itself recoverable?
No
64
Can damage to property which did not belong to C be recovered by C?
No -This is classes as pure economic loss so cannot be recovered
65
What is pure economic loss?
Loss suffered as a result of another’s negligence, which arises directly from that negligence
66
To what products does VAT not apply to at all?
Education Insurance Stamps
67
What products will be charged at a reduced rate of VAT?
5% rate applies to domestic supplies e.g. heating and water 0% rate applies to food, newspaper, books and children’s clothes
68
For commercial buildings, when is stamp duty land tax payable?
On the purchase, if it exceeds £150,000
69
What is taxable income?
Means the personal allowance has been deducted
70
Are all assets subject to CGT?
Yes, unless exempt
71
What assets are exempt from CGT?
-Main home -Car for private use -Damages -Lottery winnings -Chattels worth less than 6,000 -White goods
72
What is full expensing?
A capital allowance that allows the full cost of a qualifying business asset to be deducted from a company’s income profits
73
When is CGT paid on a qualifying business asset?
When no replacement asset is bought
74
What is the marriage allowance?
Enables a basic rate taxpayer to transfer £1,260 of unused personal allowance to a spouse if they are also a basic rate taxpayer
75
In civil proceedings, is hearsay generally admissible?
Yes -The court has discretion over how much weight to give it
76
What is a qualifying floating charge?
A charge over all or most of the company’s assets
77
What does a qualifying floating charge give the creditor a right to do?
The right to appoint an administrator
78
What resolution is required to amend a company’s articles?
Special resolution -This cannot be overridden
79
What resolution is required to remove a director?
Ordinary resolution -At a general meeting -Cannot be overridden
80
Client due diligence is the steps a solicitor must take to ensure no money laundering is going on. When must this take place?
-When establishing a business relationship -when carrying out an occasional transaction of transfer of money exceeding €1000 -On suspicion of money laundering -On suspicion of terrorist financing
81
What is a partnership?
2 or more persons carrying on a business in common with a view to profit
82
When can capital losses be set off?
Only against capital gains -Can be carried across and then forward
83
Are gifts to spouses liable to CGT?
No
84
In the multi track, does the court have full discretion over costs?
Yes
85
Which parties complete the directions questionnaire?
Both parties complete their own
86
Can a failure to file a directions questionnaire result in the case being struck out?
Yes
87
What must the company intend to do for a charge to be set aside as a preference?
Must intend to prefer the creditor
88
Are opinions actionable as a misrepresentation?
Not usually -Exception where they have expert knowledge
89
If a statement made during negotiations is true at the time it is made but becomes false before the contract is finalised, what does that person have a duty to do?
Have a duty to correct the statement
90
If a claim is to be brought under the Human Rights Act, who is required to bring it?
The victim of the alleged human rights infringement
91
What types of claims is civil legal aid available for?
Housing disputes, family or debt issues -Must satisfy a means test and merits test
92
93
In what situation will a legal professional not commit a tipping off offence?
If the disclosure is made to another legal professional?
94
How many members in an LLP must agree to a new member being admitted?
All the current members
95
How much notice is needed for an ordinary resolution to remove a director?
At least 28 days
96
What regulatory board are costs lawyers subject to?
Costs Lawyer Standards Board only
97
In order to hold a general meeting at short notice, what % of the shareholders must agree?
90%
98
Who can a claimant suffering from mesothelioma recover damages from?
From all responsible persons in breach of duty concerning the exposure to asbestos
99
Is a paralegal working in an SRA-regulated law firm subject to the code of conduct?
Yes
100
If a solicitor is subject to any criminal charge, caution or conviction, what should they do in relation to the SRA?
Notify the SRA promptly
101
Can a party appeal against an arbitrator’s decision?
Yes, only if they feel the law has been wrongly applied -Need to seek permission of the court to make appeal
102
What is the test for establishing whether professional indemnity insurance is adequate and appropriate?
Determined by a range of factors: -The size of the firm -The nature of the work undertaken -Possible value of any claims liabilities
103
Where the meaning of a statutory provision is ambiguous or unclear, what may the judge refer to?
External aids, e.g. academic writings
104
In the case of an incident, what is the governing law that will be used?
The law where the incident occurred
105
The UK parliament is the sovereign law-making body in respect of all non-devolved matters True or false?
True
106
Under the Fatal Accidents Act, who is able to bring a claim for dependency?
A spouse/civil partner, Children, Any children treated by the deceased as a child of the family As long as the deceased provided for them financially
107
What does a company pay corporation tax on?
It’s trading profits and capital gains
108
What must be filed at Companies House when forming a new company?
Form IN01
109
Can sole traders grant floating charges?
No
110
What is the limit for the value of a case in the County Court?
£100,000 £50,000 for personal injury unless facts are very complex
111
Who has the duty to make a suspicious activity report to the national crime agency?
The nominated officer The solicitor only has to report it to the nominated officer
112
The code of conduct requires the solicitor to report all potential breaches of confidentiality to the firm’s Compliance Officer for Legal Practice True or false?
True
113
When is a claim form deemed served?
2 business days after the relevant step is taken
114
A legal executive may carry on reserved legal activities under the instruction and supervision of a solicitor who is authorised to carry on such activities True or false?
True
115
When are solicitors granted rights of audience?
Automatically when they are admitted to the roll of solicitors
116
Can solicitors exercise rights of audience in senior courts?
Only if the solicitor has completed the relevant education and training required by the SRA and been awarded higher rights of audience
117
What is the ‘Contra Proferentem’ rule?
The courts are hostile to a clause that seeks to exclude liability They will favour an interpretation that goes against the party wishing to rely on the clause
118
The code of conduct imposes an obligation on solicitors to: Report promptly to the SRA any facts or matters that they reasonably believe are capable of amounting to a serious breach of their regulatory arrangements True or false?
True
119
Where a firm fails to renew its indemnity insurance policy, what happens?
They enter an extended policy period of 30 days and may continue acting for clients
120
How long does D have to submit an acknowledgment of service or file a defence?
14 days
121
What is the limit in disposable income to qualify for civil legal aid?
£733 or less
122
What is the limit on gross income to qualify for civil legal aid?
£2,657
123
What is the limit on disposable capital to qualify for legal aid?
£8,000
124
What is the dictionary ground for setting aside judgment in default?
Show that you have a reasonable prospect of successfully defending the claim OR There is a good reason why you did not respond
125
What is the leapfrog procedure and when can it be used?
Supreme Court hears appeals from courts below the CoA Can only be used where the decision concerns a point of law of public importance or the benefits outweigh the benefits of consideration by CoA
126
Are statements and disclosures made during the course of ordinary parliamentary proceedings covered by parliamentary privilege?
Yes
127
When does a business not need professional indemnity insurance?
If it is not engaged in any reserved legal activities
128
For a business carrying on reserved legal activities, how much cover of indemnity insurance is needed?
Cover up to £3million
129
What does the SRA principle of acting with independence relate to?
Conflicts of interest
130
What courts do High Court Judges have jurisdiction to sit in?
High Court Crown Court Family Court
131
Is D entitled to bring a counterclaim based on a different case?
Yes No need to issue proceedings separately
132
What is a substantial property transaction?
The company acquires an asset where the value exceeds 10% of the company’s asset value and is more than £5,000 Or The asset exceeds £100,000
133
How does a company approve a substantial property transaction?
Ordinary resolution of the shareholders
134
How much notice must be given before any procession?
At least 6 days
135
What is the test for a freezing injunction?
Whether there is a real risk of D dissipating assets and is appropriate to apply for a without notice hearing, given the risk of swift disposal if D found out
136
Who has the power to refer a Bill of the Senedd to the Supreme Court for a decision on whether it is within Senedd Cymru’s legislative competence?
Both the Counsel General and the Attorney General
137
Can the defence of consent be used in the situation of an intoxicated driver?
No Consent cannot be relied upon as any acceptance by a passenger of the risk associated with an intoxicated driver
138
When would an application for default judgment be used?
If D had failed to either acknowledge service or defend the claim
139
Can a solicitor act in the sale of shares in order to wind up the estate?
Yes
140
What is an essential step when transferring the legal ownership of shares?
Stock Transfer Form sent to the Stamp Office
141
What happens if upon discovering the truth of a misrepresentation, C acts so as to accept the misrepresentation?
The court is likely to determine that the contract is affirmed
142
Can an employer’s duty to provide a safe system of work be delegated?
No -Regardless of where an employee is working
143
Which court must applications for judicial review be submitted to?
Administrative Court
144
What shareholders have the right to ask the directors to call an extraordinary general meeting?
A shareholder owning more than 5%
145
Which courts are the CoA bound to follow the decisions of?
Any court above it in the hierarchy
146
In which court should civil claims that are valued at less than £100,000 be commenced in?
The County Court -If particularly complex, then the High Court
147
Under the Consumer Protection Act, can damage to personal property be claimed for?
Yes, if exceeds £275 -Damage to business property cannot be
148
Can a shareholder with 50% of share capital block an ordinary resolution?
Yes, because over 50% is needed to pass one
149
What is the main distinction between an LLP and a company?
Shareholders in a company cannot be removed by a majority of others
150
What does Section 4 of the Human rights act do?
Gives the High court, CoA and Supreme Court the power to issue a declaration of incompatibility
151
Who does the burden of establishing mental capacity rest with?
With the party raising it Also for them to show the other party knew or ought reasonably to have known about the incapacity
152
Under the postal rule, when is acceptance effective?
When posted
153
Can a solicitor provide payment to a witness to give evidence?
No -But they can pay for expenses of attending court
154
Is illegality a complete defence?
Yes
155
What is a remedial order?
A type of statutory instrument that is designed to allow the government to quickly amend law in order to remove incompatibility with the HRA
156
When can judges only refer to external aids for interpretation?
Where a word or phrase in statute is ambiguous or unclear
157
What should a newly qualified solicitor do if they have doubts over their competence for a task?
Decline the task
158
Under frustration, what obligations are discharged?
Any future obligations
159
Are referral fees allowed in claims for damages from personal injury?
No
160
What is the maximum success fee for a damages based agreement in a personal injury case?
No more than 25%
161
Which type of businesses pay tax by way of income tax?
Sole traders, partners and LLP members
162
What type of business pays tax by way of corporation tax?
Companies -Shareholders pay income tax on any dividend they receive
163
In the absence of a partnership agreement, how should profits be shared?
Equally between all partners, regardless of their initial contributions
164
Is land classed as a specified investment?
No
165
What is a defence against a claim by a liquidator?
The every step defence
166
How is the mischief rule used?
Will consider the defect in common law which causes Parliament to pass the statute
167
Can a capital gains tax annual exemption be carried forward?
No
168
What standard written term of business cannot be excluded under any circumstances?
Exclusion of liability that the seller has title to the goods at the time of sale
169
If it has been more than 31 days since the refusal of consent to complete the purchase suspected of money laundering was received, will an offence have been committed if the purchase is proceeded with?
No -Not if it has been more than 31 days
170
If arrested and in custody at the police station, who is entitled to public funded legal advice?
Anyone
171
For a company to change its name, is an ordinary or special resolution needed?
Special resolution
172
In order for a full judicial review, what is the time frame to apply for review?
As soon as possible or within 3 months
173
How much notice does a director have to give when resigning?
None -They can resign by written notice to take immediate effect at any time
174
What does parliamentary privilege cover?
Covers all proceedings in Parliament
175
Who is judicial review only available against?
Public law bodies
176
For a trespassers assembly outside of London, who do the police have to apply to to ban it?
The local council
177
For a trespassing assembly in London, who do the police have to apply to to ban it?
The Home Secretary
178
What are limited rights?
A right that can be limited only in the circumstances outlined in the ECHR
179
In the case of a ‘Hung Parliament’, what should happen?
Parties expected to negotiate with each other to determine who will form the government
180
In judicial review claims, what is the automatic disqualification rule?
When the member of a public body has a financial interest in the decision, they are automatically disqualified from being involved in the decision
181
What can written resolutions not be used for?
Removal of a director
182
What is latent damage?
Damage that is not immediately obvious -The negligence transpires several years later
183
What is the limitation period for a latent damage case?
6 years from the date the damage occurred Or 3 years from the date of knowledge But claim must be brought within 15 years after the negligence
184
What is assimilated law?
From end of 2023, retained EU law converted into assimilated law
185
How should assimilated law be interpreted?
In a way that complies with the Act of Parliament, but if they are incompatible, the judge should give effect to Act of Parliament
186
If there is a charging rate agreed in the retainer agreement, will this be considered over any other claim for costs?
Yes
187
Does the Rights of Third Parties Act apply in an employment contract?
No
188
What duty of care does an employer owe its employee?
Owes an established duty of care to its employees to see that reasonable care is taken for the employees safety -Cannot delegate this duty
189
When will an exclusion clause be effective?
If adequate steps were taken to bring it to their attention and it is reasonable
190
A solicitor has an obligation to report promptly to the SRA any facts they reasonably believe should be brought to the SRA’s attention True or false?
True
191
In commercial contracts, if a time for delivery has been agreed, will it be a condition or a warranty?
Condition
192
When the High Court sits as an appeal division, are they bound by their decisions in these circumstances?
Yes
193
Are fixed and floating charges ranked by date of creation or date of registration?
DATE OF CREATION!
194
What is an example of indirect discrimination?
Policy for dress code that no hats or headwear allowed in the office -A Jewish employee wears a head covering
195
What are special damages?
Can be precisely calculated
196
Who can make a bereavement claim?
Spouse Person living with them as spouse for at least 2 years Parents of an unmarried minor
197
When are freelance solicitors required to have indemnity insurance?
When they are carrying out reserved legal activities
198
In a conditional fee agreement, if the case is unsuccessful, will the solicitors ordinary costs be payable?
No
199
Is land a specified investment?
No
200
Generally, is there justification for direct discrimination?
No -Exceptions are for age and disability discrimination
201
When does a High Court decision bind itself?
When acting as an appellate court
202
What is the ratio decidendi?
The binding part of judgment
203
Where are appeals heard from a case heard by a District Judge in the County Court?
By a circuit judge in the County court
204
What is the sub division of the King’s Bench division that hears applications for judicial review?
Administrative court
205
Does the Magistrates court hear any appeals?
No
206
Is the Court of Appeal bound by its decisions in criminal cases or civil cases?
Civil cases -Generous discretion in criminal cases
207
What is the presumption around delivery time in a commercial contract?
If it has been agreed, then it will be a condition of the contract
208
What is the result of a breach of condition?
Contract terminated and claim damages
209
Do members in an LLP hold shares?
No -Their liability is limited to their capital contribution
210
Can general partnerships grant floating charges?
No
211
A non-personal injury claim with a value less than £100,000 should be commenced in what court?
County court
212
Are Parliament bound by their past decisions?
No
213
On the incorporation of a new company, what needs to be submitted to Companies House?
-Memorandum of Association -Application for registration -Fee
214
What is the golden rule?
Used to avoid an absurd result from the literal rule
215
What test will the court apply to decide if a term is unfair?
Whether the term is contrary to the requirements of good faith and whether it causes a significant imbalance to the detriment of the consumer
216
For a transaction at an undervalue to be set aside, what must the company have been at the time of transaction?
Insolvent -Presumption of insolvency where the sale is to a connected person
217
What resolution does a change in the article of association require?
Special resolution
218
What is the time frame to bring an application for judicial review?
No later than 3 months
219
What is horizontal precedent?
Decisions from court on the same level being binding
220
What is vertical precedent?
Decisions from higher courts being binding on lower level courts
221
Can conditional fee agreements be used in family proceedings?
No
222
What are nominal damages?
Small amount of money awarded as damages to an injured party who has not suffered any loss due to a breach of contract
223
What is pure economic loss?
Financial loss resulting from the harm caused by negligent act -Not recoverable
224
What is consequential economic loss?
Financial loss sustained due to another harm caused by negligence
225
What is an example of pure economic loss?
Losses relating to profits
226
What is an example of consequential economic loss?
Property damage, personal injury, lost earnings
227
Is an exclusion of an implied term valid?
No -It will be void
228
What is expected of a minister intentionally misleads Parliament?
They are expected to resign
229
To recover damages for loss of dependency, what must someone be?
Financially dependent on the deceased
230
In relation to money laundering, who is training required for?
All relevant employees in the firm
231
What are the 3 ways to obtain damages under contract law?
-Liquidated damages clause -Claim for a debt -Unliquidated damages
232
What is a liquidated damages clause?
A clause in the contract setting out how much damages will be payable
233
In what context is a claim for a debt most common?
In delivery contracts, when goods are delivered and the buyer refuses to pay
234
What is a liquidated damages clause?
When there is a clause in the contract which sets out how much is payable on breach of contract
235
How are unliquidated damages assessed?
To put C in position they would have been in had the contract been performed properly
236
If a seller delivers goods and the buyer refuses to accept delivery, what is the seller entitled to?
Damages for non-acceptance
237
Is the exchange of promises valid as a form of consideration, even if no actual performance has been made?
Yes
238
What is cost of cure?
The reasonable cost of remedying a defect or obtaining substitute performance so as to give C the performance they contracted for
239
What is Article 3 of the ECHR?
Prohibits the state from carrying out torture, inhuman or degrading treatment -An absolute right
240
If a suspect is questioned by police without the opportunity to have a solicitor present, what article of ECHR does this breach?
Article 6
241
What is legitimate expectation?
When a public body makes a specific undertaking directed at an individual or small group of individuals that a certain policy will continue to fulfil an expectation and individual knows about that policy
242
Under s.3 HRA, primary legislation must be read and given effect in which way?
In a way which is compatible with the convention rights
243
What is the Salisbury convention?
The House of Lords will not delay or block a government bill that was policy in its general election manifesto
244
What are conventions?
Not law, but are political practices that are binding in practice
245
Under what section of the HRA and on what grounds can the court award damages for a breach of an individuals human rights?
Under s.8, the court can grant any remedy
246
In any conflict between UK and EU law, what must be given preference?
UK law
247
Can cases against the UK government be brought in the ECtHR?
Yes -Within 4 months and individual must have been an actual victim
248
Under s.6 HRA, is it unlawful for any public authority to act in a way that is incompatible with the ECHR?
Yes -Does not apply to Westminster Parliament
249
If s.6 HRA is breached, can a victim bring a claim against that authority under s.7 HRA?
Yes