1
Q
Who is a charge void against if failure to register?
A
Creditor and the administrator (or liquidator)
2
Q
What are the damages for defective products? What happens if disproportionate?
A
Loss of expecation = cost of cure
Disproportionate to fix = diminutive value
3
Q
When is a doc subject to litigation privilege?
A
litigation in reasonable contemplation at the time it was created
made for the purpose of conducting litigation
litigation is between the same parties or third parties involved in litigation (lawyers, barristers, experts)
4
Q
Is a contract enforceable if a promise is made? What type?
A
Promise from either side (e.g to sell and to pay) = executory consideration
Does not apply to past consideration
5
Q
Whho grants an appeal from C of A?
A
C of A and SC
6
Q
What is public nuisance?
A
Obstruction of public enjoyment of land
7
Q
What do partners pay capital gains tax based off?
A
Fractional share of capital when sold (according to profit sharing ratio or if non equally under partnership act)
8
Q
What is the exclusion for FSMA if acting in a sale of shares?
A
not a breach of general prohibition if exclusion applies - transaction involves at least 50% of the voting shares in the company
(purpose is to acquire/ dispose of company not invest = commercial transaction)
9
Q
When is restitution impossible?
A
if the subject matter has been destructed/ lost and cannot returned
10
Q
What adjustments must be made for disabled people?
A
must make all reasonable adjustments to ensure not at substantial disadvantage compared to not disabled people
11
Q
If you recommend a close acquiantance for a service to a client (e.g fiancial adice) what must you do?
A
Must inform client of relationship
12
Q
When will the courts conclude a decision is biased? What is the result?
A
The facts suggest that a fair minded and informed observer would conclude that there was a real possibility of bias = the decision will be held unlawful for procedural impropriety
13
Q
What advice does not need FCA?
A
Generic/ incidental
e.g explaining differences between mortgages
14
Q
When can a party pursue the remainder due under a contract after agreeing to accept less?
A
If the debtor gave no new consideration and not in full & final settlement
15
Q
What are not specified investments?
A
sale of land / property
gov backed national savings schemes
16
Q
What is the best method to enforce judgment to recover debt?
A
writ of control
High Court Enforcement Officer (HCEO) the authority to seize and sell a debtor’s goods to repay a judgment debt = control assets
17
Q
To who must an MLRO report evidence of money laundering?
A
National Crime Agency
18
Q
Who can automatically claim bereavement damages in tort law? Who must prove?
A
spouse/ cp
cohabitation partner must prove 2 years
19
Q
What happens if Ds Pt 36 offer is accepeted outside RP?
A
Defendant will pay the Claimant’s costs on the standard basis to the expiry of the relevant period, and thereafter the Claimant will pay the Defendant’s costs on the standard basis
20
Q
What liability cannot be excluded in B2B contracts?
A
the seller has title to the goods at the time of sale
21
Q
What is the date in square brackets on a statute?
A
date of royal assent
22
Q
When can you proceed with transaction if refusal to consent has been received?
A
more than 31 days and heard nothing
23
Q
What interest must be put on a claim for if interest is in the contract?
A
The interest stated in contract
24
Q
What happens to sums in liquidation? (secured & unsecured creditors)
A
ring fence for distribution to unsecured creditors - balance to secured creditor
50% first 10k
20% of the remainder
25
Who decides when SH take dividends? Do SH have absolute right?
Directors have the power to recommend/ declare the payment of a dividend
***Unless AA say different***
26
What cases with the QBD deal with?
Complex commercial contract and tort claims, especially those involving technical evidence (even if lesser than £100k)
27
What can the court order for disclosure? What will the court deal with first? Where is this power commonly used?
Order disclosure in stages
**deal with liability as a preliminary issue** before quantum - decide a particular issue first, before dealing with the rest of the claim
common in multi-track
28
What should a solictor do if evidence subject to discloure is destroyed/ unavailable?
Disclose its existence / give explanation (does not remove obligation
29
What is the best answer to enforce a debt?
***quickest way*** to enforce debt will be the correct answer e.g if there are sufficient funds in the bank
30
When are docs not subject to litigation privilege?
docs prepared after litigation started
must be disclosed if intended to be relied up **(docs intended to be relied upon are never privileged)**
31
Who should you seek permission/ consent from to add a party to a claim?
The court court and parties affected
32
What should you do if the D produces an unclear/ insufficient defence?
Apply to the court for an order requiring the defendant to provide further information
33
What will happen if a seller covers up a defect?
misrepresentation by conduct even if buyer refused to inspect = still induced the buyer into the contract
34
What happens if a party informs the other they are acting as an agent?
gives principal the rights and liabilities under the contract
35
What must acceptance be to be valid?
entirely unqualified (clear and unconditional) - introduce no new terms at all
36
What happens if there is economic duress and a practical benefit?
economic duress overrides any practical benefit (look for words like ‘under protest’ where there is no free will)
37
Remedy for fraudulent mis rep? When is it not possible?
Rescind (cannot rescind if affirmed/ lapse of time/ effect innocent third party)
38
Difference between unilateral mistake and mis rep?
Sale of goods, misrepresentation is more accurate
mistake must be about **contact terms** (miscommunication) and not ordering error
common or unilateral
39
When will a contract be dividiable?
Payment per item rather than for an entire service / 1 item
40
What happens if contract voluntary accepted? What type of contract will it apply to?
entitled to partial payment
if the contract is dividable
41
When will mental incapacity make a contract **voidable?**
the person cannot understand the nature of the transaction or its effect
and the other party was aware of the incapacity or the transaction was unfair
42
When will the the presumption on family relations be rebutted?
if there have been several payments already made (reliance)
43
What can be recovered when a contract frustrated?
can only recover recover the sum of the benefit (advanced payment) already given - **not any more**
why - can only recover what the other party receives value for
44
When are nominal damages awarded?
only awarded when D suffered no financial loss
45
What will happen if illegality is a valid defence?
It will bar all other defences because it is a full defence
it will stop the claim immediately
46
When can a person not rely on consent in occupier's liability?
The risk is hidden / not obvious
47
What must be present for R V F? What is not sufficient?
non-natural use of land (established first)
*the mischief escaping alone is not sufficient*
48
When is the but for test not satisfied?
If 50% or below
must be over 50% = on the balance of probabilities
49
When is pure economic loss recoverable?
If D if assumed responsibility and C reasonably relied
50
When does the bolam test apply?
Test = reasonable body of experts
Only applies to medical treatment not disclosure of risk - 2 stage test: significant? Dr knew or ought to know?
51
what is a material risk? (medical)
in persons position would be signifiant & dr should know/ ought to know this
52
Will an employer be liable if someone committed a tort at a work event?
Could be - close connection between tort and work duties or relationships
53
Who can claim under common law for PL?
Any person who would reasonably foreseeably use the product
e.g family member
54
What will the court give more weight to in a claim for nuisance?
the locality of the area and substantial interference over the claimant moving to nuisance (not a total defence)
55
Do public functions need to be granted by gov?
No
56
What is direct and indirect bias?
Direct bias - a decision-maker is actually biased or has a direct interest in the outcome
Indirect (or apparent) bias - a relationship or connection that might lead a reasonable person to think the decision-maker could be biased
Bias must influence the decision
57
When can art 10 be limited?
expression:
prescribed by law
legitimate aim
proportionate / necessary
58
What will the court look at if someone brings a claim for expectation of privacy?
public interest
(can bring a claim against a private body and use the articles)
59
Which court can challenge secondary legislation? What are the powers?
Administrative court = can quash
applies to JR can quash secondary not primary
60
What happens if the home office ignore an order? why?
contempt of court = court will enforce lawful court orders
because no one inc the executive is above the law
61
What is ejusdem generis?
of the same kind / class
62
Is the Sewel Convention legally enforceable?
not enforceable legally (only recognised practice/ convention)
63
When are referral fees prohibited?
PI cases
64
Who does not need SRA auth? What must a solicitor do?
charity/ non-profit org do not need SRA auth for reg activities if solicitors act in accordance with Code of Conduct **(solicitor must be authorised)**
65
What must supervisors be?
competent
66
What must partners/ managers of law firms ensure?
systems are in place
67
What is expected of junior solicitors?
expected to work under supervision & to make mistakes
68
When is legal aid given in family (child) cases?
must satisfy merits (sufficiently strong case) and means test
legal help = sufficient benefit test
legal representation = prospect of success 50% (money v non-monetary claims)
69
When can you proceed with a transaction if not heard back from NCA?
7 days (5 working days)
if refusal - 31 days - nothing more = safe to proceed
70
When is EDD necessary?
Company ownership is by 1 individual
71
When can a trial by jury be elected?
either - way offences
72
Where can solicitors without higher rights advocate?
magistrates and county court
73
What will a new partner not be liable for?
obligations before they joined the partnership
74
Who is a promoter? When are they liable?
person signing on behalf of the company
personally liable for signing contract by the company if not properly incorp
75
What is included on an IN01?
* Proposed company name
* Type of company (e.g. private company limited by shares, public limited company, company limited by guarantee)
* Registered office address
* Jurisdiction
* Use of model articles/ bespoke
* Proposed officers
* Statement of capital and initial shareholdings
* Statement of guarantee (if limited by guarantee)
* People with Significant Control (PSC) statement
* Presenter information (person filling in form)
76
What is required to pass an OR?
over 50%
77
What is a quasi- partnership?
small limited company run like a partnership (shareholders usually also directors) *looks at the principal of mutual trust*
78
What should you do if an email is sent by mistake from o/s?
do not read and return to sender
79
What must be obtained for an insolvency voluntary arrangement to be enforced against a secured creditor?
Consent (at least 75% in value of the creditors)
50% not connected
80
Main info on prerogative powers
1. Definition:
🤴🏻Prerogative powers were orginally vested in the Crown (monarch) but now mostly **exercised by government ministers** = residual powers of the Crown that exist alongside statutory powers.
Characteristics:
* Royal origin: derived from common law, not statute
* Non-statutory: unless limited or abolished by legislation
* Discretionary: **Ministers can usually decide how and when to use them**
* Flexible & evolving: scope can change over time through case law
3. Key Examples:
💎**Executive functions:**
* Appointing/dismissing ministers
* Proroguing or dissolving Parliament (limited after R (Miller) v PM 2019)
* Granting honours
* Issuing passports
⚔️🛡️**Foreign affairs & defence:**
* Making treaties
* Declaring war and deploying armed forces
* Recognising foreign states
📚🏛️**Law & justice:**
Pardon (Royal Prerogative of Mercy)
4. Limitations
Cannot conflict with statute: **statute overrides the prerogative**
Judicial review: Prerogative powers **can be reviewed by courts** for lawfulness, reasonableness, and procedural fairness
Parliamentary control: Parliament can legislate to limit / regulate their use.
81
When is legitimate expectation the correct groun for JR?
🚸 Public authority makes a clear, unambiguous and unqualified representation that an individual / group can rely upon...
Then depart from decision with no justification / fair process ⛔️
82
Key aspects of a Tomlin Order
Terms go beyond matters in court proceedings / resolution powers not within ordinary jurisdiction of the court
Uses a confidential schedule/ annex
The order itself only stays proceedings on agreed terms
Adv:
* Complex commercial terms e.g discount/ staged payments (beyond the pleaded claim)
* Confidential between parties
* Either party can apply to resume proceedings if there is a breach
83
When will someone owe duty of care? (police/ professional)
👮Police = did not owe a DOC because did not create/ worse a dangerous condition AND actions did not interfere with others’ ability to protect themselves
ONLY liable if **actions make the situation worse**/ **prevent others from taking protective steps**
assumption of responsibility/ reliance cases too
84
Who must be named as a partner for a claim against a partner/ partnership?
Claim against a partnership that **has a name** = claim must be brought against the **name which the partnership used when the cause of action arose**
Sue in firm name not individual partners = **partners are jointly liable for debt/ obligations** incurred whilst a partner* (do not need to name partner individually bc this would duplicate liability)*
85
What can the PR of a deceased shareholder do?
Can execute a share transfer instrument **as if they were a member of the company** (do not need to be registered as a member at CH)
why? - facilitate administration of estates.
86
What does the court do if UK domestic legislation enacted after UK withdrawal **cannot** be read compatibly with assimilated legislation?
Issue **compatibility order** & NEITHER is disapplied it is only recorded that they are different!!
Parliament / minister must clarify
(before Brexit - EU law takes precedence but now domestic law is supreme)
i think fast track procedure
87
When is a spouse's income not applied for the means tesst for legal aid?
If the have a **contrary interest** to the case e.g the victim
if not usually partner’s income is considered
If below thresholds = legal aid always av!!
88
What happens to money paid/ payable if contract is frutrated?
Money paid before is recoverable / money payable before the frustrating event is no longer payable
*BUT COURT HAS DISCRETION TO ALLOW PAYEE TO RETAIN/ RECOVER EXPENSES INCURRED IN PREPARATION*
89
What should happen if solicitor proposes to carry out insurance distribution activity?
Must notify SRA in prescribed form = firm then registered in the Financial Services Register
appoint insurance officer
can only rely on s327 exemption not exclusion & follow COB rules
90
Who can ECHR examine complaints from / to?
By a state against another state, complaints from companies and private individuals that are personally effected
Inter-state applications - contracting states against other contracting states
Individual applications against a contracting state - **includes natural & legal persons** -exhuasted domestic remedies?
91
What duty do occupiers owe tresspassers?
For risk arising out of **dangers due to state of premises** / things done or not done (omitted) to them NOT activity of C themselves
C is liable for own voluntary risk
92
Will a professional with training / expertise be under a duty to help a stranger?
No unless voluntarily intervening / taking action = assumption of responsibility = duty imposed
93
When can a third party claim/ enforce under Contract rights of Third Parties Act?
Contract expressly provides they can (name) or terms confer a benefit if they are identified by name, class or description
94
General rule on who classes as a dependent after death due to negligence
Very wide range
95
When should a party comply with judgment/ order to pay money?
14 days unless:
* judgment gives a different date
* CPR provides otherwise
* court orders stay
filing for **application is irrelevant until the court makes an order** e.g application to stay = no effect until granted
96
When can implied terms in B2B be excluded?
satisfied reasonableness test
1️⃣ Bargaining strength of the parties
2️⃣ Inducement
3️⃣ Awareness
4️⃣ Ability to comply
5️⃣ Special order vs standard terms (take it or leave it?)
6️⃣ Insurance
97
When can a company be bound by an informal (and not recorded) decision of SH/ directors?
all entitled to vote agreed **unanimously** (even if no formal resolution)
98
When can you rely on the s67 exemption? (activities carried on the in the course of a profession or non-investment business)
the Professional Services / Non‑Investment Business Exemption (applies to promotion because cannot rely on exclusion)
if:
1. In the course of a profession
2. Reasonably necessary part of the service
3. Not separately remunerated
99
Who does duty to declare interest apply to?
Only **applies to directors** and NOT shareholders who are not directors
100
What does reasonableness in private nuisance depend heavily on?
locality (industrial/ residential)
101
Under fatal accidents act can be claimed for?
statutory bereavement, loss of dependency (income/ services), funeral expenses
**not emotional support / companionship**
102
When can PI claims be issued in HC/ CC?
above 50k (exc med neg)
No upper limit in CC (so can use either!!)
103
When are liquidated damage clauses enforceable?
If it protects the innocent party’s **legitimate interest** and the amount payable is **not out of proportion** e.g sum claimed is greater than sum lost = disproportionate (instead claim general damages)
104
Who can be liable under the CPA 1987?
producer, importer, retailer/ brander (holding out as a producer) = liable
105
Who do preferences apply to? What are the important time frames? (insolv)
**Creditors & guarantors** e.g bank loan secured by guarantee
6 months before insolvency to an unconnected person
2 years from insolvency to a connected person
106
When will a contract **not** be frustrated?
if the event that did not happen was not the only/ main part of the contract
can the main purpose of the contract be performed? = yes = not frustrated because *not radically different from what was contemplated and can be substantially performed*
107
What can happen if no response from NCA? (7 days)
deemed consent = proceed (starts from first working day after disclosure)
108
When can police arrest for breach of peace?
if:
- breach committed in arrestors presence
- arrestor **reasonably believes** commit offence in **immediate** future
- or breach occurred and real threat it will happen again = cannot think they ‘might’ cause trouble
**Must be reasonable not just honest**
109
When must undertakings be performed by a solicitor? e.g undertake to disclose docs
in a **reasonable amount of time** (does not need to include the words ‘undertake’)
110
Who can bring a JR under convention rights/ who can bring in other JR proceedings?
Convention rights - must be brought by a victim who is (or would be) a victim off an unlawful act
Non convention rights - just a sufficient interest to bring a claim in the public interest & effected rights
111
When can JR be brought against a private company?
operating a public function
112
When can a partner / solicitor / firm can rely on a RAO exclusion when carrying out trustee duties?
Any remuneration would be **on a time spent basis** (can only rely if does not receive remuneration in addition to remuneration received as a trustee/ PR) - **not additional if just calculated on your time spent e.g going to meetings!!**
113
When should EDD be applied?
**either** one of the factor make it high risk (complex, large, unusual, no economic/ legal purpose)
114
When must make an application for detailed assessment to dispute fees?
Within 1 month of receiving their bill (can still permit by discretion if within 12 months of delivery) = ensures promptness
client has right to assessment and solicitor cannot take action
after 12 months = cannot
115
What is important about loss claimed under Rylands V Fletcher?
liability is limited to what was **foreseeable!!!** 👀 Strict liability for foreseeable damage only
116
When can you get a reduciton on IHT?
BPR: shares in a quoted company may give 50% reduction in IHT if had for **2 years immediately prior** & Transferor must **control shares immediately before death**
Not 2 years = still applied at 40%
117
When does statute come into force if no express commencement clause/ order?
royal assent - comes into force from **midnight** on the same day!
118
When can a bankruptcy petition be ordered?
issued stat demand (no response in 3 weeks) OR attempt to execute judgment is unsatisfied.
£5,000
119
What to look out for in private nuisance questions (even in commercial districts)?
**significantly** interfere with the business owner's use and enjoyment of their property - *only needs to tolerate some intereference*
**property damage!! - locality is not relevant!!**
120
What cannot be put into witness statement?
**opinion evidence** from witnesses of fact (i.e not experts) is **generally not admissible** unless it falls under the 'perceived facts' exception - *explain facts seen by them*
e.g “ visibility was poor” or “he overtook me at high speed”
121
How can shareholder's remove a director? What could a director/shareholder do to seek remedies?
Ordinary resoluton
but special notice 28 days
Look at SH agreement - breach = breach of contract claim
122
When can an individual bring a JR againt a public body?
liberal approach by courts - individuals with a **sincere concern** for public matters were granted standing
123
Best type of buiness structure if trading internationally?
Private limited company
124
What does a partner need to do when they exit the business?
Why not indemnity?
* Acual notice - former & current
* Constructive - future
* Avoid being held out
* Exisitng debts = deed of release/ novation agreement
Indemnity will NOT stop being liable only entitled to money from exisitng (risky)
| Look in Q at actions already taken
125
When can a short notice GM be called in a private company?
90% of voting shares
and
majority of shareholders
126
What can directors involved in a transaction do / not do?
Should declare interest and cannot vote or count to the quorum to pass BR
127
What resolution is required for a transaction £5,000 or less?
Board res
(5k or less = not substantial)
128
Who are **not** connected persons for SPTs?
Who must an SPT be between?
NOT:
* siblings
* gradparents
* uncles, aunts
* neices, nephews
* grandparents
* grandchildren
**company & director** (not SH)
129
When is a director not required to declare own interest?
What can they not do?
Their own service contract more than 2 years
vote / count towards quorum
130
When should a company not do a buyback out of capital?
distributable profits are avaliable
131
formulas for net current assets and net assets
current assets - current liabilities = net current assets
total assets (so fixed & current) - total liabilities = net assets
(may need to do an extra step to find out total assets/ liabilities!!)
132
formula to work out what is owed to a class of creditor?
step 1 - deduct any payments out of classs before!! (e.g preferential before unsecured)
assets divided by liabilities x amount owed = !
133
What to remove to determine the value of a claim?
* Intrest
* cc
* con neg
* any admitted sums by the defence
134
Last step in share transfer?
Update register of members (2 months)
135
Misrep defintion
False statement of fact not opinion
136
What should you do if you do not know the answwer in court?
Request short adjournment
137
How is part of a statute that does not come into force on the commencement date enacted?
Statutory instrument
138
Resolution to remove director?
Ordinary
139
How can a minister push powers through parl?
Only implement through enabling act
140
reverse
overrule
reverse = appeal court changes case heard on appeal
overrule - changes previous decision not on appeal (higher court)
141
Senedd passing a protected subject matter
2/3 vote to pass
142
Shareholding to require directors to call an EGM
10%
143
What will the court order if the fault of sol? e.g missed deadline
wasted costs order
144
What to look out for for breach of condition or warranty?
Can the rest / substantial part of contract be performed?
Is it fundamental?
fundamental breach = changes obligations radically / cannot be performed
warranty breached = no right to repudiate
145
When will court usually not allow summary?
Oral evidence needed
146
What are partners in LLP called?
Members (removed by majority of other members)
no agreement = decisions made by majority
Unanimous consent required:
* the nature of the business, or
* the terms of the LLP Agreement
nb - have designated members like directors/ secretaries
147
What will likely happen if a party refuses to mediate?
Costs order against refusing party
148
When will a chairperson not have casting vote?
at a non-scheduled GM (EGM)
149
When can you appeal against arbitrators decision?
Applied to court
ground - misapplied law
150
What is not a devolved matter?
Youth Justice = automatically comes into effect in wales
non-devolved:
Crown/ const, Foreign affairs, Law Order, Defence, Immigration, Money (except devolved taxes), Energy, Broadcasting, Transport, Welfare
151
What will a lender look at?
Best option for start up?
solvency/ ability to pay/ security
borrow from TP
152
Limitation on latent damages
6 year rule and 15 year cap
153
What happens if idenity (name) is written into the contract?
term = can be void for mistake if fraudulent misrep
154
When is damage to property of a TP not recoverable?
purely economic - REVISE
155
When can a legal executive carry out regulated activities?
under authorised solicitor
(CiLex) - REVISE
156
What is EPP?
fail to renew insurance = extends automaticaly 30 days and must inform SRA in 5 days
157
how to apply for default?
N244 & evi
14 days to file aos
file aos = 28 days from claim form & PoC to file defence automatic
158
Primary v secondary
Primary = involved/ near and reasonably forseeable could be harmed
sudden shock / horrifying event
secondary = reasonable firmness test
and must be medical condition (then apply alcock)
rescuers can only be primary if involved in danger zone
159
When will court use leapfrog?
particular importance
consider if SC better placed to consider
(civil)
160
When does a firm/ business need PII
reserved legal activities
161
How is an SPT approved?
If not?
OR
If not = voidable
director can vote and count to quorum as a shareholder
162
What must be proved for preferences?
Insolvent a time or as a result
bankruptcy = prove intent (i.e only done to survive)
insolvency = prove desire
163
Who can raise concerns for competence on welsh leg?
Counsel General & AG
164
When will consent defence not apply
Passenger
e.g intoxicated driver
165
What does claimant need to prove for summary?
No prospect AND no compelling reason
166
How to calculate the % for unsecured creditors?
1. Look at who has already been paid (secured/ fixed) - deduct
2. Pay preferential (employees/ HMRC after employees)
3. Pay floating
usecured remaining to give divided buy total of unsecured debt x 100
nb connected persons = not get paid
167
Latin interpretation aids
Ejus - general words follow a list of specific words of the same kind ("and other")
Noscitur - company it keeps (ambiguity/ unclear)
Expressio - express list
168
What will the court look at?
value, complexity, damages
expert evi?
169
Test for permission to appeal?
Real prospect OR compelling reason
nb - do not confuse with grounds for appeal
170
CFA rules
alway get if successful
not exceed 100% chargeout rate
PI - 25% of damages (general)
171
When eligible for legal aid (criminal - indicatable offeces)
automatically satisfy IoJ
must satisfy means to meet legal aid
172
What must consideration be for an SPT?
CASH
173
Complete defence to a claim in negligence?
Illegality
174
Resolution to appoint directors?
BR or OR
175
What happens on frustration?
All **future** obligations discharged
existing are not effected
176
Who must be paid before can issue divdends?
HMRC
