1
General partnerships
What are the three requirements for a general partnership under the Partnerships Act 1890?
A
1.Two or more persons
2.Carrying on a business in common
3.With the intention to make a profit
Persons includes corporate bodies as well as people
2
Q
General partnerships
Is it material if a business never actually realises a profit?
A
No, as long as they intend to
Q
3
General partnerships
What is a party receiving a share of the profits of a business prima facie evidence of?
A
That a partnership exists
Agreement to or sharing of losses is some evidence of a partnership, but not prima
facie evidence
4
Q
General partnerships
In what three situations will receiving a share of the profits of a business not raise the
presumption that a partnership exists?
A
Money is:
1.Repayment of a debt
2.Remuneration to employee/agent
3.Annuity to a survivor of a partner on account of their share or to a person who has sold
the goodwill in the business
5
Q
General partnerships
Does a party need to contribute capital to be considered a partner?
A
No
Q
6
General partnerships
What is the limit on the number of partners that can be in a general partnership?
A
There is no limit
7
Q
General partnerships
Can the partners use a partnership agreement to override most rules in the Partnership Act?
What is the effect of this?
A
Yes
Most of the rules in this deck will not apply if the question provides that the partnership
agreement overrides them
8
Q
General partnerships
What is the general rule for a partner’s ability to bind the partnership and other partners?
A
A partner in a partnership is an agent of the partnership and the other partners, and can bind
both as long as he has authority
9
Q
General partnerships
What are the two ways a party can be bestowed with actual authority?
A
1.Expressly authorised by the partners, either in the partneship agreement or through a
vote
2.Impliedly authorised by the partners’ failure to object to past conduct of this nature
10
Q
General partnerships
What type of act must a partner make to bind the firm through apparent/ostensible authority?
A
An act carrying on the business of the firm in the usual way
Would a reasonable person think a business of this kind would usually do this act? What
authority would a reasonable person expect a partner in such a business to have?
11
Q
General partnerships
What two things must be true for apparent authority to not bind the firm?
A
1.Partner had no authority to act, and
2.The person with whom the partner was dealing either knew the partner had no
authority to act, or did not think the person with whom they were dealing was a
partner
Q
General partnerships
12
If it turns out that there was neither actual nor apparent authority, who is bound?
A
Only the partner who entered into the dealing, in their personal capacity
13
Q
General partnerships
What four things have case law shown partners will have the authority to do?
A
1.Buy and sell firm goods
2.Receive debt payments due to the firm
3.Hire employees
4.Employ a solicitor to act for the firm
14
Q
General partnerships
What is a general partner’s liability for debts of the partnership?
What does it mean that partnership liability is joint and several?
A
Unlimited
A creditor can pursue one or all of the partners
15
Q
General partnerships
When will the partners be jointly and severally liable for torts committed by another partner?
A
When the tort is committed in the course of business, or with authority of the partners
16
Q
General partnerships
Is an incoming partner liable to the creditors of a partnership for anything done before becoming
a partner?
What is needed to add a new partner?
A
Not unless they agree
The consent of all partners
17
Q
General partnerships
Is a retiring partner liable for debts incurred before they leave?
What is a hold harmless agreement and against whom is it not effective?
A
Yes
Agreement between a retiring partner and the firm that the retiring partner will not be liable for
debts incurred before leaving. Does not apply to a retiring partner’s direct liabilities to a third
party unless the third party agrees
18
Q
General partnerships
What is the general rule regarding a person dealing with a partnership after a change in its
partners?
A
The person is entitled to treat all apparent partners of the old firm as still being partners
until they receive notice of the change
19
Q
General partnerships
In the case of (1) existing creditors and (2) world at large, what must a retiring partner do to
give notice of their retirement and therefore not be liable for obligations arising after they
leave?
When will a third party not be able to enforce an obligation on a retiring partner which arose
after they left, even in the absence of notice?
A
1.Existing creditors: Provide actual noticeto creditors
2.World at large: Place advertisement in London Gazette
Where the third party did not know the person was a partner
20
Q
General partnerships
What is the holding out rule?
A
If a person holds themselves out to be a partner even if they are not, they may be held liable as
a partner if any third party extends credit on the strength of the holding out.
The same is true if a person knowingly allows another to hold them out as a partner.
Q
21
General partnerships
How can holding out apply to retiring partners?
A
If they fail to give proper notice, or do not ensure their name is removed from partnership
notices, websites, or stationery, they may inadvertently hold themselves out to still be a partner
Q
22
General partnerships
What is the statutory definition of partnership property?
Unless agreed, how must partnership property be held and applied?
A
Property acquired or brought into the partnership for partnership purposes and in the course of
partnership business, as well as money earned or property purchased with money earned
Exclusively for the purposes of the partnership
23
Q
General partnerships
How is property:
(1) belonging to an individual partner and used in the business and:
(2) given by a partner to the business
treated?
A
1.Property belonging to an individual partner remains their property
2.Property given by a partner to the firm becomes partnership property and is treated
as a capital contribution
Q
24
General partnerships
Unless a contrary intention is shown, how is property bought with money belonging to the
partnership and property titled in the firm name treated?
Can creditors of an individual partner seek to satisfy their debt from partnership property?
A
As partnership property
No
25
Q
General partnerships
What is the determining factor in determining whether property brought into the partnership
becomes the partnership’s or remains property of the individual?
A
The intention of the individual
26
Q
General partnerships
What is required for individual property to become partnership property?
A
Express or implied agreement between the partners
Q
27
General partnerships
What is the effect of an individual partner’s creditor being granted a court order for a share of
that partner’s profits?
What about when a partner assigns their share of the profits?
A
They become entitled to the profits in satisfaction of their debt, but this does not make the
creditor a partner
It does not make the assignee a partner
28
Q
General partnerships
In the absence of a profit-sharing agreement, and irrespective of capital contributions or any
otherfactor, how are partnership profits split?
What about losses in the same situation?
A
Equally
Same
29
Q
General partnerships
Are partners entitled to a distribution of the firm’s profits and capital as of right?
A
No, not without agreement of the partners
Q
30
General partnerships
What is a partner’s tax liability if they are an individual?
A
Each partner must include in their income their share of the profit made by the
partnership whether or not it was distributed
31
Q
General partnerships
Where there is a profit-sharing agreement leading to an unequal split of profits, how are losses
shared upon dissolution?
A
In the proportion of the profit-share
32
Q
General partnerships
Is a partner entitled to interest on:
(1) their capital contributions and
(2) a loan made to the partnership?
A
 Capital: No
 Loan: Yes, at 5% per year
33
Q
General partnerships
How is the right to manage the partnership business shared?
Is a partner generally entitled to remuneration for acting in the partnership business?
A
Equally. One partner, one vote
Irrespective of capital contributions, etc., unless agreed
Not unless the partnership agreement provides for such
34
Q
General partnerships
Whilst most decisions require a simple majority vote, what three decisions require unanimity?
A
1.Admission of a new partner
2.Change in the nature of the partnership business
3.Alteration to the partnership agreement
35
Q
General partnerships
What is the duty to account for secret profits?
A
Each partner must account to the partnership for any profit/benefit obtained without the
consentof the other partners from:
1.A transaction concerning the partnership, or
2.Any use by the partner of partnership name/property
36
Q
General partnerships
What is the duty to account for profits of a competing business?
A
If a partner carries on a business in competition with the partnership, without the consent of the
partners, they must account for all profits
37
Q
General partnerships
What is a partnership at will, how is it dissolved by notice?
When does this take place?
A
A partnership that was not set up for a fixed term will be dissolved by any partner giving notice
to the others of their intention to dissolve
It will be dissolved on the date provided in the notice, and if none is provided, upon
communication of the notice.
38
Q
General partnerships
How is a partnership dissolved by death, bankruptcy or charge?
A
A partnership is dissolved if:
1.Any partner dies (automatically)
2.Any partner becomes bankrupt (automatically), or
3.Any partner charges their share of profits to pay off a personal debt (at the option of
the other partners)
39
Q
General partnerships
What are the fives reasons a partnership may be dissolved by court order?
A
1.Permanent incapacity of a partner
2.Prejudicial conduct
3.Willful or persistent breach of partnership agreement
4.Business can only be carried on at a loss
5.Just and equitable
40
Q
General partnerships
What is the effect of dissolution on partner authority?
A
The authority of each partner to bind the firm will continue:
1.In order to wind up the partnership, and
2.To complete transactions which were started but unfinished at the time of dissolution
Partnership will be bound for other contracts entered into unless notice of the dissolution was
given to the other party
41
Q
General partnerships
When a partnership is dissolved, what is the order of entitlement to assets?
A
1.Debts owed to outside creditors
2.Loans made by partners
3.Partners’ capital contributions
If partnership assets are insufficient to repay creditors, partners are personally liable
42
Q
General partnerships
Under the Partnership Act, what is the order by which losses should be paid?
A
Losses should be paid from:
1.Profits, then
2.Capital, then if necessary
3.Further contributions by partners
Q
LLPs
43
For a general partnership to be a LLP, it must be registered:
What four things must be included in the incorporation documents for a LLP that are submitted
to Companies Houses?
How is a LLP taxed and run?
A
1.Name of the LLP
2.Registered office address
3.Names/addresses of partners
4.Details of people with significant control
Taxed and run like a general partnership (members taxed individually on share of profit, whether
distributed or not)
44
Q
LLPs
If an LLP is not properly set up, what is the result?
A
A general partnership forms and the partners have unlimited liability
If properly set up, partners in a LLP are not personally liable
Q
45
LLPs
What is the minimum number of members?
For how long can an LLP operate with one member, and what happens after that period?
A
Two
Six months, after which the single member is jointly and severally liable with the LLP for debts
accrued after the six month period
46
Q
LLPs
Unless the agreement provides otherwise, what is required to add a new member?
A
Consent of all members
47
Q
LLPs
What is the role of the designated member?
How many designated members must the LLP have, and what is the position if the LLP does not
designate any?
A
Perform administrative and filing duties of the LLP, including:
 Appoint and remove auditors
 Submit annual statements
 Sign and file accounts
 Comply with statutory filing requirements
Two. If none designated, all members are treated as designated members
48
Q
LLPs
Within what time period of a change to the members or designated members must the Registrar
be notified?
A
14 days
49
Q
LLPs
What is the position regarding agency and authority in an LLP?
A
The same as a general partnership.
Every member is an agent of the LLP.
LLP not bound by anything done if a member has no authority and the person with whom they
are dealing knows they have no authority or doesn’t think they do
Q
LLPs
50
Until when is a former member deemed to still be a member for the purposes of dealings with
third parties?
A
Until notice is given to the person or sent to the Registrar
51
Q
LLPs
What four possible ways could someone’s stake in an LLP make them a person with
significant control?
A
1.Directly or indirectly holding more than25% of the surplus assets upon winding up
2.Directly or indirectly holding more than25% of the voting rights
3.Directly or indirectly holding the right to appoint or remove the majority of
management
4.Otherwise having the right to exercise or actually exercising significant control or
influence
52
Q
LLPs
Are members in an LLP liable for wrongful acts or omissions of other members in the course of
business or with the LLP’s authority?
A
No, but the LLP is liable with the offending member
53
Q
LLPs
In order to benefit from limited liability, what five things is an LLP obligated to make available to
the public?
A
1.Annual accounts
2.Annual confirmation statement
Details of:
3. Appointment/removal of members
4. Changes to members’ details
5. Changes to LLP name or address
54
Q
LLPs
In what three circumstances is it not permitted to strike off an LLP?
What proportion of the members may apply to the Registrar for an LLP to be struck off and
dissolved?
A
1.LLP has traded or carried on business in the last three months
2.LLP changed name in last three months
3.LLP is the subject of any insolvency proceeding
##
Majority
55
Q
LLPs
What four parties must the members making the application to strike off notify?
What time period after the notice to strike off will the Registrar strike off the LLP, dissolving it?
A
1.Other members
2.Creditors of the LLP
3.Employees
4.Trustee of any pension fund
Three months
56
Q
Nature and formation of companies
In addition to the general requirements for a private limited company, what two additional things
are required to register as a public limited company?
A
1.Nominal share capital of at least £50,000
2.Trading certificate
Q
Nature and formation of companies
57
Within what time period from the end of the accounting period must annual accounts be filed for
a private company and a public company, and need they be audited?
A
Private: Nine months. Need not be audited.
Public: Six months. Must be audited.
58
Q
Nature and formation of companies
Who is a promotor?
What duties are owed between promotors?
A
A person who takes the necessary steps to form a company
Promoters owe fiduciary duty and duty of good faith, and to not profit at the company’s expense
Q
59
Nature and formation of companies
Who is liable on pre-incorporation contracts entered into in the company name, and what is a
way to avoid this?
A
The promotor. Can be avoided by novating the contract after incorporation.
60
Q
Nature and formation of companies
What is a Memorandum of Association?
A
A statement signed by people wishing to become shareholders, indicating this intent and
agreement
It is filed with the application for registration at Companies House
61
Q
Nature and formation of companies
What ten things must be included in the application for a company to the Registrar?
A
1.Name
2.Address
3.Details about company’s business
4.Whether public or private
5.Whether limited by shares or guarantee
6.Statement of capital and initial shareholdings
7.Proposed officers/directors, and their residential address
8.Details of people with significant control
9.Statement of compliance with Companies Act 2006
10. Payment of the relevant fee
Q
62
Nature and formation of companies
What are the five limitations on a company name?
A
1.Cannot be the same or essentially the same as an existing company
2.Must end in Limited or Ltd or Public Limited Company or Plc
3.Cannot be offensive
4.Approval required if name suggests connection to government
5.Approval required if name suggests a protected profession
63
Q
Nature and formation of companies
What is required for a company to change its name and the articles?
A
A special resolution of the shareholders
64
Q
Nature and formation of companies
What documents make up a company’s constitution?
A
 Articles of Association
 Any resolutions/agreements adopted to amend the articles
The Model Articles automatically apply unless the company opts for its own. Therefore the
Articles need not be filed with the application.
65
Q
Nature and formation of companies
What five things are dealt with in the articles?
What is the legal effect of the articles?
A
1.Directors’ meetings and decision making
2.Appointment/removal of directors
3.Share capital
4.Rights attached to shares
5.Shareholder meetings
They are a contract between the company and each of the shareholders, as well as the
shareholders with each other
Q
66
Nature and formation of companies
Whilst a company need not restrict its objects, what must the directors do if it does restrict them,
and what is the consequence of failing to do so?
Even though a director would be in breach, what is the status of an act done beyond the scope
of the objects?
A
Directors must adhere to the restriction, and they breach their duty if they do not, and may be
subject to an injunction if the act is not yet carried out, otherwise equitable action for damage
caused
It is still valid
67
Q
Nature and formation of companies
What is the extent of a shareholder’s right to enforce provisions of the articles, and when is a
shareholder not able to enforce?
A
Only insofar as it relates to membership rights, and a shareholder cannot enforce the articles
in any other capacity, e.g. a personal right, or if they are also a director
68
Q
Nature and formation of companies
Can the articles contain a provision requiring unanimous consent to amend them?
A
No, this is prohibited by the Companies Act
69
Q
Nature and formation of companies
Can the shareholders agree among themselves in a shareholders agreement to not amend
the articles unless they all agree?
Why is this different?
A
Yes, because they are merely agreeing among themselves to a course of action they will take
It is not enshrined in the company’s constitution itself, which is what the prohibition in the
Companies Act is concerned with
70
Q
Nature and formation of companies
What is one thing an amendment to the articles cannot require?
A
A shareholder to increase their liability to the company, i.e. subscribe for more shares
71
Q
Nature and formation of companies
What does an entrenched provision of the articles require?
In what two ways can provision for entrenchment be made?
A
A more onerous approval process than even a special resolution, e.g. 100% of shareholders
In the articles on formation (with notice of this given to Companies House), or by special
resolution
Q
Nature and formation of companies
72
What is the fate of a provision in the articles which attempts to prevent amendment of the
articles, and what will always be the rule?
A
Such a provision will be ineffective, and the articles can always be changed by special resolution
Q
73
Nature and formation of companies
What must be true of an amendment to the articles before a shareholder who did not vote for it
can apply for the court to set it aside?
What alone is not grounds for challenging an amendment to the articles?
A
No reasonable person would consider it to be for the benefit of the company
That it adversely affects minority shareholders, as long the amendment is made in good faith
Q
74
Nature and formation of companies
What are the only times that the corporate veil has deemed to have been lifted?
A
Directors or shareholders in breach of other legal provisions, e.g. company was formed to carry
out a fraud or avoid existing obligation
75
Q
Companies: directors and officers
What is the minimum number of directors in a private company and a public company?
A
Private: One
Public: Two
76
Q
Companies: directors and officers
What are the two ways a director can be appointed in a company limited by shares under the
model articles?
Within what time period of a director appointment or a change to a director’s details must
Companies House be notified?
A
1.Board resolution, or
2.Ordinary shareholder resolution
14 days
77
Q
What four things will not affect the validity of acts of a person acting as a director, if they are
subsequently discovered?
A
1.Defect in appointment
2.Disqualified from holding office
3.Ceased to hold office
4.Not entitled to vote on the matter in question
Q
78
Companies: directors and officers
What is a de jure director?
A
Director who has been formally and properly appointed, and registered with the Registrar
Q
79
Companies: directors and officers
What is a de facto director?
A
Someone who is not a de jure director, but who carries out all of the duties of and behaves like
one
80
Q
Companies: directors and officers
What is a shadow director?
A
A non-director in accordance with whose instructions the actual directors are accustomed to act,
and they are treated the same as de jure or de facto
Q
81
Companies: directors and officers
What is an alternate director?
A
Someone appointed by a director to attend and vote at board meetings when the director is
unable to
Also known as a proxy
Q
82
Companies: directors and officers
What is a nominee director?
A
Someone appointed by the board to represent the interests of a particular shareholder, although
they must still act in the best interests of the company
83
Q
Companies: directors and officers
What is:
(1) an executive director, and
(2) a non-executive director?
A
 Executive: responsible for the day-to-day running of the company and are considered
employees
 Non-executive: consultants with a more supervisory role
84
Q
Companies: directors and officers
What is a director’s status from an agency perspective?
A
Directors are agents of the company, and can bind the company in contract, and in tort (if
acting with authority)
85
Q
Companies: directors and officers
How is actual authority granted expressly?
A
In the articles, or by resolution
86
Q
Companies: directors and officers
Why does apparent authority not arise frequently in a company?
What is one situation where it might?
A
Because a director will generally not have the power to bind the company, except when the
directors act as a board
Apparent authority could arise through past dealings
87
Q
Companies: directors and officers
What are the two ways a company can execute a document?
A
1.Affixing their seal
2.Signature of: two directors; director and secretary; single director if signed by attesting
witness
Q
88
Companies: directors and officers
Although the articles generally require the board to act collectively, may the board delegate
authority over specific matters to a particular director or group of directors?
A
Yes
Q
89
Companies: directors and officers
What is required for shareholders to ratify a director’s conduct which was in breach of their duty,
and whose vote would be disregarded?
A
Ordinary shareholders resolution, disregarding the vote of the director in question if he is also a
shareholder
Q
90
Companies: directors and officers
What is the fate of any provision in the articles or contract that purports to exempt a director
from liability that would otherwise attach through breach of duty, negligence, or breach of trust?
What are the limits on a company’s ability to indemnify directors against claims brought by third
parties concerning the director’s actions for the company?
A
Void
Cannot be used for criminal or regulatory fines
Q
91
Companies: directors and officers
Can a director still be subject to a statutory and fiduciary duty for the period they were a
director, even after they cease to be one?
A
Yes, e.g. cannot act on an opportunity after you cease to be a director that you learned about
whilst you were one
92
Q
Companies: directors and officers
What is the limit on a director’s powers?
A
They must exercise powers only for the purpose for which they were conferred
93
Q
Companies: directors and officers
What is the duty to promote success?
A
A director must act in the way the director considers, in good faith, would be most likely to
promote the success of the company for the benefit of the members as a whole
94
Q
Companies: directors and officers
What is the concept of enlightened shareholder value?
A
In promoting the success of the company, the directors need not focus solely on maximizing
profit, and can consider other things like:
1.Long term consequences of a decision
2.Interests of company employees
3.Need to foster business relationships
95
Q
Companies: directors and officers
If a company is insolvent or on the brink of such, to whom is the director’s duty
to companydisplaced?
A
To the creditors
96
Q
Companies: directors and officers
What are the objective and subjective limbs of a director’s duty to exercise care, skill, and
diligence?
What standard will a director be judged by?
A
A director must exercise the care, skill, and diligence that would be exercised by a reasonably
diligent person with:
1.The general knowledge, skill and experience that may be expected of a
director (objective), or
2.The general knowledge, skill and experience the director in question actually
has (subjective)
Whichever imposes the higher obligation
97
Q
Companies: directors and officers
What is the duty to exercise independent judgment?
A
Director must exercise independent judgment, without subordinating their powers to the will of
others
A director will not be deemed to have subordinated their powers to the will of others if they seek
advicefrom experts, as long as the director makes the final decision as does not delegate this to
the expert
98
Q
Companies: directors and officers
In determining whether a conflict exists between a director and the company, is it relevant that
the company was not able to take advantage of a particular opportunity themselves?
A
No, it is still a conflict
99
Q
Companies: directors and officers
In what three situations will a conflict not arise?
A
1.Transaction is with the company itself, and the board knows of the director’s interest
2.Situation cannot reasonably be regarded as likely to give rise to a conflict
3.Matter has been authorised by the directors
100
Q
Companies: directors and officers
What is the duty to declare interest in a transaction?
Is a director interested in a transaction counted toward the quorum on that decision?
A
If a director is directly or indirectly interested in a proposed transaction with the company, or
becomes such, they must give notice to the other directors before entering into or
continuing
No
101
Q
Companies: directors and officers
Even though a director need not declare an interest in a transaction of which the shareholders
are already aware, what is good practice?
Why?
A
Declare it at the board meeting anyway
So that it forms part of the minutes and nobody can challenge whether they were aware later
Q
Companies: directors and officers
102
What is required for a company to make a loan to a director, or to guarantee or give security for
a loan to a director by a third party?
A
Shareholder approval via ordinary resolution
£10k directly to director or £50k if it is to fund company business does not require approval
Q
103
Companies: directors and officers
What is the maximum length a director’s employment contract can be before it needs
shareholder approval?
Who is able to determine what fair compensation in a director’s service contract should be?
A
Two years
The board
Q
104
Companies: directors and officers
Under the model articles, what is required for any director to call a board meeting?
A
Giving reasonable notice, which need not be in writing, with the date time and location, to each
director
Reasonable notice is determined based on the situation
105
Q
Companies: directors and officers
When does notice not need to be given to all directors?
A
If a particular director or directors has waived their entitlement to notice of that meeting
106
Q
Companies: directors and officers
What is the minimum amount of directors needed for a quorum at a board meeting?
A
Two
107
Q
Companies: directors and officers
What is the usual threshold for votes on an issue at a board meeting?
Who has the casting vote in the event of a deadlock, and what is the effect of this?
A
Simple majority
The chairman, effectively giving them a second vote on the issue
108
Q
Companies: directors and officers
If the board wants to pass a board resolution in writing, what is required?
A
Unanimous approval of directors
109
Q
Companies: directors and officers
When is a director excluded from the quorum on a particular issue?
A
When they have an interest in the transaction being voted on
110
Q
Companies: directors and officers
Who has the power to remove directors, and what is the vote threshold?
Can a director be removed by written resolution?
A
Shareholders, by simple majority
No
111
Q
Companies: directors and officers
Although the shareholders’ statutory right to remove a director overrides most provisions to the
contrary in the articles, what does a Bushell v Faith clause provide?
A
It gives weighted voting rights to a director who is also a shareholder in the event of a resolution
to remove them as a director
112
Q
Companies: directors and officers
If the shareholders remove a director in violation of their contract, what is the consequence?
A
The company will be liable for breach of contract
Q
113
Companies: directors and officers
How much notice before a general shareholder meeting must a shareholder give of their
intention to propose a resolution to remove a director?
A
28 days
Q
Companies: directors and officers
114
What rights does the director have at the shareholder meeting to remove them?
A
1.Make a written representation
2.Speak at the shareholder meetings, even if not a shareholder
115
Q
Companies: directors and officers
What three things is a disqualified director prohibited from doing?
A
1.Act as a director
2.Act as a receiver of a company’s property
3.Take part in any way in promotion, formation, or management of a company
116
Q
Companies: directors and officers
What four categories of things can a director be disqualified for?
A
1.Conviction of indictable offence related to a company
2.Persistent breaches of companies’ legislation
3.Fraud
4.Summary conviction of offence relating to failure to comply with filing requirements
Q
117
Companies: directors and officers
When may a director be disqualified for being an unfit director of an insolvent company, and
what is the range of disqualification?
A
A director can be disqualified for 2-15 years if their conduct, taken alone or viewed in line with
their conduct as director of another company, makes them unfit to be in the management of a
company
118
Q
Companies: directors and officers
How can a director be disqualified for wrongful trading?
A
If the company was insolvent when they traded and they knew
119
Q
Companies: shareholders
What are the two requirements for a dividends to be declared?
A
1.Must be paid from profits available for the purpose
2.Must not render a company insolvent
Profits available for the purpose is essentially net profits
120
Q
Companies: shareholders
What is a preference share?
What are preference shareholders’ voting rights typically limited to?
A
A share paid a dividend based on a fixed % ahead of ordinary shareholders, which rolls over and
accumulates if unpaid, but usually lacking voting rights
Decisions that affect their class rights
121
Q
Companies: shareholders
Even if profits are available, who must still recommend a dividend?
A
The board
122
Q
Companies: shareholders
After the board resolve to recommend a dividend, how is it declared?
A
The recommendation is approved by the shareholders, who declare the dividend by ordinary
resolution
123
Q
Companies: shareholders
Can the shareholders decline a dividend, or change the amount?
A
The shareholders can decline to approve the dividend, and they can lower its amount. They
cannot increase the amount.
124
Q
Companies: shareholders
What is an unlawful dividend?
In what circumstances will a shareholder be liable to repay an unlawful dividend?
A
A dividend not paid out of profits available for the purpose, e.g. capital
If, when the distribution was made, they knew or had reasonable grounds to believe it was
unlawful
Q
125
Companies: shareholders
When may a shareholder bring a derivative claim, and against whom is it brought?
Only who can bring a derivative action?
A
When the shareholder believes a director has or is about to breach a duty owed to the company
and it appears the board are not acting to prevent this, the shareholder can bring a claim against
the offending director
Shareholders, and those to whom shares were transferred through operation of law, e.g.
inheritance
Q
126
Companies: shareholders
Can a shareholder assert a claim which arose before they became a shareholder?
A
Yes
Q
127
Companies: shareholders
What must the court do if the shareholder does not show a prima facie case?
A
Dismiss the claim
Q
128
Companies: shareholders
If the shareholder does show a prima facie case, the court must be satisfied of one of what two
things at the second stage for them to dismiss the claim?
A
1.Continuance of the claim does not promote the best interests of the company, or
2.The action was authorised by the company or authorisation would be likely
129
Q
Companies: shareholders
Who receives any damages awarded in a derivative claim?
A
The company
Q
130
Companies: shareholders
What can a shareholder, even a minority, do if they feel they are being unfairly prejudiced?
If a minority shareholder is successful, what is the most likely remedy?
A
Petition the court for a remedy
The minority shareholder is bought out at fair value
Q
131
Companies: shareholders
What must any shareholder be able to show to apply to have a company wound up?
A
1.The company is solvent, and
2.It is just and equitable to wind it up
Q
132
Companies: shareholders
How long after a director leaves must their service contract be retained for inspection by the
shareholders?
A
At least one year
Q
133
Companies: joint decision making
Who usually calls meetings?
A
Directors
134
Q
Companies: joint decision making
A shareholder holding at least what % of the paid-up voting capital can require the directors to
call a meeting, within what time must the directors (1) call the meeting and (2) hold the
meeting?
What happens if the directors fail to call the meeting?
A
5%. Called within 21 days; held within 28 days.
The shareholder who requested the meeting, or anyshareholder(s) holding 50% of the voting
rights can call the meeting themselves
135
Q
Companies: joint decision making
To whom must notice of a general shareholders meeting be given?
In what four forms can notice of a meeting be?
A
1.All shareholders and directors
2.Personal representatives of deceased shareholders
3.Trustee in bankruptcy of any bankrupt shareholders
4.Auditor, if there is one
Writing, electronic, email, via website
136
Q
Companies: joint decision making
What five things must the notice of the meeting contain?
A
1.Company name
2.Time, date and place of the meeting
3.General nature of business to be carried on at the meeting
4.Right to appoint a proxy to attend
5.Full text of any special resolution
137
Q
Companies: joint decision making
How much notice must be given for a meeting?
A
14 clear days, unless articles provide for longer
138
Q
Companies: joint decision making
What additional time period is added where notice is communicated by a method other than
hand delivery?
A
48 hours
139
Q
Companies: joint decision making
How can you work out notice periods quickly on the exam?
A
Last date notice can be given:
- Meeting date minus 15 days if hand delivered
- Meeting date minus 17 days if other method
Earliest date a meeting can be held:
- Notice date plus 15 days if hand delivered
- Notice date plus 17 days if other method
140
Q
Companies: joint decision making
What is a shareholder’s option if notice is insufficient?
A
They can seek to have any action taken at the meeting for which notice was insufficient declared
invalid
141
Q
Companies: joint decision making
What proportion of shareholders must agree to hold a meeting on shorter notice?
A
Majority of shareholders (in number), holding 90% of the shares
Q
Companies: joint decision making
142
In what situation can the short notice procedure not be used?
What is a workaround?
A
For matters requiring documents to be left at the registered office for 15 days prior to the
meeting
If the relevant majority of the shareholders is also on the board (and in attendance at the
meeting), the board can adjourn a board meeting and have the shareholders pass whatever is to
be passed as a written resolution, which can include the documents, getting around the 15 day
requirement. Should only be used when you are sure the shareholders in attendance are on side
and will approve
Q
143
Companies: joint decision making
If a company has more than one shareholder, can a single shareholder who is present in his own
capacity but also as proxy for another shareholder form a quorum of two?
A
No
Q
144
Companies: joint decision making
What proportion of shareholders at a meeting are required to approve (1) an ordinary resolution
and (2) a special resolution?
A
Ordinary resolution: Simple majority of shareholders at the meeting
Special resolution: 75% or more of the shareholders at the meeting
Compare with written resolutions which require those percentages of all shareholders.
145
Q
Companies: joint decision making
What six things are among those for which a special resolution is required?
A
1.Amend the articles
2.Reduce share capital / buy back shares
3.Wind up the company
4.Change company name
5.Disapply pre-emption rights
6.Change company status, i.e. private to public
Q
146
Companies: joint decision making
Within what time period must a special resolution be filed at Companies House?
A
15 days
Q
Companies: joint decision making
147
What is the normal method of voting at meetings?
A
Show of hands
148
Q
Companies: joint decision making
What is a poll vote and what two groups can demand one?
A
Instead of one vote per shareholder in the show of hands method, it becomes one vote
per share, and can be demanded by:
1.Any five shareholders or more, or
2.Shareholders with not less than 10% of the voting rights or 10% of the paid-up capital
Q
149
Companies: joint decision making
Can a written resolution be used for both types of shareholder resolutions?
What action can a written resolution not be used for?
A
Yes
Dismissing a director or auditor
150
Q
Companies: joint decision making
In addition to the board deciding to circulate a written resolution, who can require them to do
so?
A
Shareholders who hold at least 5% of the voting rights
(same % as for a shareholder demanding a general meeting)
151
Q
Companies: joint decision making
To whom must a written resolution be circulated?
A
All shareholders eligible to vote
152
Q
Companies: joint decision making
What two things must a written resolution contain?
A
1.Statement informing the shareholder how to signify agreement
2.When the resolution will lapse if not approved, typically 28 days from and including the
circulation date (unless the articles provide differently)
153
Q
Companies: joint decision making
Whilst the % thresholds for ordinary and special resolutions are the same >50% and 75%+ as
when voted in person, what is the crucial difference with a written resolution with regard to the
pool from which those % are taken?
A
For a written resolution, it is >50% and 75%+ of all shareholders, compared to just those
present at a meeting
154
Q
Companies: joint decision making
What is the four step process when a decision requires approval of both the directors and
shareholders?
A
1.Approval starts with board meeting and board resolution approving the matter
2.Board then resolves to call shareholders general meeting or circulate written resolution
for shareholders to approve
3.Shareholders vote whether to pass the resolution, and it is passed if they do
4.Board then enters into the approved transaction, resolving this if relevant
Q
155
Companies: joint decision making
Whilst no further action is usually required, what is one situation where directors will need to
take further action, and what is that action?
A
If the resolutions have approved entering a contract to purchase property, the directors would
need to resolve to appoint two directors to execute the contract
156
Q
Companies: joint decision making
Unless otherwise provided, what nine things require an ordinary shareholder resolution only?
A
1.Appoint/remove director/auditor
2.Adopt annual accounts
3.Declare a dividend
4.Approve director’s decision to allot shares
5.Approve substantial property transaction with an interested director
6.Ratify of director’s breach of duty
7.Enter service contract with director of more than two years
8.Make loan to director
9.Give payment to director for loss of office
Q
157
Companies: joint decision making
What is a substantial property transaction and what is the de minimis threshold?
At what threshold is a transaction automatically an SPT and what is the test for figures between
£5,000 and it?
A
Where a director buys or sells property from or to the company.
Less than £5,000 is de minimis
£100,000. If between 5k and 100k, it will be an SPT if its value exceeds 10% of the company’s
net assets
158
Q
Companies: joint decision making
Within what time period of a resolution being adopted by the board, shareholders, or both must
it be filed at Companies House?
A
14 days
15 days for special resolution
159
Q
Companies: raising finance
What are the two ways a company can raise finance?
A
1.Equity (selling shares for money)
2.Debt (borrowing money)
Q
Companies: raising finance
160
What is a company’s share capital?
A
Money received on account of the nominal or par value of shares, which is not returned to the
shareholders and is theoretically always available to pay creditors
Q
161
Companies: raising finance
What is the amount paid for new shares that exceeds the nominal or par value, and where does
this go?
A
Share premium, into the share premium account, and forms part of the same share capital which
is not returned to the shareholders and is theoretically always available to pay creditors
Q
162
Companies: raising finance
For company incorporated after 2009, when will there not be any restrictions on a director if they
wish to allot more shares?
A
If the company only has one class of shares, and there is no restriction removing the director’s
power
Q
163
Companies: raising finance
In other situations, e.g. where there are multiple classes of shares, what is required to allot new
shares?
A
Shareholder’s ordinary resolution
Q
164
Companies: raising finance
What must shares be offered for in order for existing shareholders to have a preemption right?
A
Cash
Shares issued for anything else, e.g. property, will not give rise to the preemption right
Q
165
Companies: raising finance
Where a preemption right does arise, how long must the existing shareholders be given to decide
whether to accept?
A
14 days
Q
Companies: raising finance
166
Does preemption apply to preference shares?
A
No
167
Q
Companies: raising finance
How is a preemption right disapplied?
A
Through shareholder special resolution (on a case by case basis), or by amending the articles (to
make it permanent)
168
Q
Companies: raising finance
Under the model articles, what is the director’s right regarding a transfer of shares?
A
They have the absolute power to refuse to allow a transfer
Q
169
Companies: raising finance
Do the directors have the power to borrow money on behalf of the company?
A
Yes, unless excluded by the articles
170
Q
Companies: raising finance
What is a:
(1) fixed charge and
(2) floating charge
granted over?
A
1.Assets the company will own for a substantial period of time
2.A group of assets that change regularly, and does not crystallise until default
171
Q
Companies: raising finance
Within what time limit of the creation of a charge by a company must it be registered at
Companies House?
What is the impact of failing to register a charge at Companies House?
A
21 days
The charge is void against a liquidator or administrator of the company, and the company’s
creditors (still valid against the company itself)
Q
Companies: raising finance
172
How is the priority of:
(1) fixed charges over the same asset
(2) floating charges over the same asset
determined?
A
Both based on the date of their creation, as long as they were validly registered at Companies
House
173
Q
Companies: raising finance
What is the priority of a fixed charge and a floating charge in the same asset?
A
As long as it is properly registered, a fixed charge will take priority over a floating in the
same asset, even if the floating charge was created and registered first
174
Q
Companies: recordkeeping, filing, disclosure
A private company is required to keep a register of what four groups and what one thing?
Where are the registers required to be kept, to be inspected by whom?
A
1.Members
2.Directors
3.Secretaries
4.People with significant control
5.Charges against the company’s assets
At the company’s registered address, to be inspected by members for free and the public for
a fee
175
Q
Companies: recordkeeping, filing, disclosure
Which registers can the company elect to keep at Companies House?
A
Registers of directors and members
176
Q
Companies: recordkeeping, filing, disclosure
What is the minimum time minutes of shareholders’ meetings must be kept and made available
for inspection?
A
10 years
177
Q
Companies: recordkeeping, filing, disclosure
What is a confirmation statement and is it always required?
A
An annual update from the company confirming that the information held by Companies House is
up to date, and must be filed even if there have not been any changes
It is a criminal offence to not file the confirmation statement within 14 days of the end of the
company’s accounting period
178
Q
Companies: recordkeeping, filing, disclosure
What two things must be included in the accounts?
What view of the company must the accounts give?
A
1.Balance sheets on the last day of the accounting period
2.Statement of profit and losses
Must give a true and fair view of the company.
179
Q
Companies: recordkeeping, filing, disclosure
Who must approve that the accounts reach this standard?
A
The board
Q
Companies: recordkeeping, filing, disclosure
180
What type of companies must file an annual directors report?
What type of companies must file a strategic report, and what is the purpose of this?
A
Medium and large companies, i.e. companies with more than 50 employees or turnover of £10
million or more
Same. Strategic report helps members assess how the directors have promoted the success of
the company.
181
Q
Companies: recordkeeping, filing, disclosure
Within what time period must special resolutions, as well as ordinary resolutions to allot new
shares or buy back shares be filed with Companies House?
Where a special resolution to reduce share capital is filed with Companies House, what must
accompany it?
A
15 days
A statement of solvency
182
Q
Companies: recordkeeping, filing, disclosure
When is a change of company’s registered office effective?
A
When it is filed with Companies House
183
Q
Companies: recordkeeping, filing, disclosure
What four things must a company disclose on its letterhead?
What must a company do if it displays the name of one director on its letterhead?
A
1.Registered name
2.Part of the UK it is registered
3.Company number
4.Registered office address
Display the name of all of them
184
Q
Companies: recordkeeping, filing, disclosure
What three things must a partnership display on its letterhead?
A
1.Name of the partnership
2.Name of each member
3.Business address
Q
Insolvency
185
What is an individual voluntary arrangement?
A
Agreement between individual debtor and all creditors where each agrees to accept less than is
owed
186
Q
Insolvency
What is the advantage of an IVA to a (1) debtor and (2) creditor?
What must a debtor do before agreeing to an IVA?
A
1.They can avoid the restrictions and qualifications they would be subject to if made
bankrupt
2.They may receive more money than in a bankruptcy proceeding, and more quickly
Take professional advice
Q
187
Insolvency
What is the protection offered by the court order received by an insolvency practitioner preparing
and filing a statement of affairs on behalf of the debtor?
A
No bankruptcy proceedings can be brought when the order is in force
188
Q
Insolvency
What percentage of unsecured creditors must agree to the agreement before it is binding
on allordinary unsecured creditors, whether they voted for it or not?
Who are not bound?
A
Majority in number and 75% in value
Preferential and secured creditors
189
Q
Insolvency
Who are two examples of a preferential creditor?
A
1.Employees owed waged in the last four months
2.HMRC in respect of VAT, PAYE, and National Insurance
190
Q
Insolvency
What may the insolvency practitioner (now a supervisor) or a creditor do if a debtor does not
adhere to the IVA, or if the debtor provided false or misleading information?
A
Petition for the debtor’s bankruptcy
191
Q
Insolvency
What is bankruptcy?
What period after a bankruptcy application is a debtor deemed discharged from the debts?
A
A judicial process in which assets of a bankrupt debtor are automatically passed to a third
party, the trustee in bankruptcy, who liquidates the assets and uses the proceeds to pay off as
many debts as possible, in a strict order set out by legislation
One year
192
Q
Insolvency
What are the three ways a debtor can be placed into bankruptcy?
A
1.Debtor applies online to declare themselves bankrupt
2.One or more unsecured creditors owed at least £5,000 can apply
3.Supervisor or creditor can apply if debtor has breached IVA
Q
193
Insolvency
Put simply, what are the two ways a creditor who applies to put a debtor in bankruptcy can
prove that they are insolvent?
A
1.Debt immediately payable and debtor does not have the funds
2.Debt payable in future, and debtor has no reasonable prospect of being able to pay
194
Q
Insolvency
What are the three specific ways in which insolvency can be demonstrated?
A
Insolvent if debtor owes £5,000 or more and:
1.Creditor makes a statutory demand for payment; debt not paid within 3
weeksor debtor does not apply to set aside demand within 3 weeks
2.Creditor seeks to execute on the judgment; attempt to execute judgment fails
3.Debt owed in future, and creditor serves a statutory demand of proof of ability to
pay; debtor does not show reasonable prospect of being able to pay
195
Q
Insolvency
What assets is a bankrupt able to retain?
A
 Assets needed for day-to-day living, including furniture
 Salary, and
 Any tools required for their job
196
Q
Insolvency
What is an income payments order, and what is the maximum length of one?
A
Although a bankrupt is entitled to retain any salary they make, if the salary exceeds the amount
needed for the reasonable needs of them and their family, an income payments order can be
made, for a maximum of three years
197
Q
Insolvency
Although the bankrupt’s interest in their home passes to the trustee, what are the four interests,
which if they exist in the home, mean that it cannot be sold within the first year without a court
order?
What happens after one year?
A
1.Held in joint names
2.Equitable interest of spouse
3.Right to occupy
4.Children under 18 in occupation
The interests of creditor override those interests in the home
Q
Insolvency
198
What three things is a debtor in a bankruptcy restricted from doing, until discharged?
A
1.Apply for credit over £500 without disclosing the bankruptcy to the lender
2.Act as company director or be a partner
3.Trade under another name without disclosing the bankruptcy
199
Q
Insolvency
What is the order of priority in a bankruptcy distribution?
A
1.Costs of the bankruptcy
2.Secured creditors with a fixed charge
3.Preferential creditors
4.Secured creditors with a floating charge
5.Unsecured creditors
6.Connected unsecured creditors
Debts abate equally within a class
Q
200
Insolvency
What conduct will prevent the bankruptcy from being discharged after the usual one year?
What is the label given to the debtor, and how long does this bankruptcy last?
A
If the bankruptcy was caused by dishonesty, negligence, and recklessness
Debtor is culpable, and a culpabe bankruptcy lasts 15 years.
201
Q
Insolvency
What occurs if a partner is made bankrupt in a:
(1) partnership at will
(2) partnership for specified term/undertaking?
A
1.Partnership is dissolved and the trustee receives any money due to the insolvent
partner
2.Partnership will continue if the remaining partners purchase the bankrupt partner’s
interest from the trustee
Q
202
Insolvency
What occurs if a partner in an LLP is made bankrupt?
A
The partnership does not terminate, but the trustee will usually sell the interest to the remaining
partners
The bankrupt partner cannot participate in the management of the LLP
Q
203
Insolvency
How does bankruptcy proceed in a partnership:
1.Of individuals
2.Of companies
3.Of a mix of both?
A
1.Bankruptcy processes apply to each partner
2.Liquidation applies to each company
3.Bankruptcy applies to individuals; liquidation to the companies
204
Q
Insolvency
Are the insolvency procedures for limited companies and LLPs broadly the same?
A
Yes, and reference to company will probably apply to LLP
205
Q
Insolvency
What are the six insolvency options available to companies?
A
1.Receivership
2.Restructuring plan
3.Moratorium
4.Administration
5.Company voluntary arrangement
6.Liquidation
206
Q
Insolvency
What is fixed asset receivership?
Is proof of insolvency needed? What are the most common breaches giving rise to fixed asset
receivership?
A
Where a secured creditor exercises their right to appoint an administrative receiver because a
company has breached a term, through which the receiver takes possession of the charged asset
and usually disposes of it to use the proceeds to pay back the creditor
Receiver owes the duty to the particular creditor
No need to show insolvency. Common breaches are failure to pay interest or capital of a loan
207
Q
Insolvency
Why does fixed asset receivership usually place a company into insolvency anyway?
A
Because charges are usually granted against assets which are crucial to the functioning of the
business, e.g. buildings and machinery
208
Q
Insolvency
What percentage of creditors must agree to a restructuring plan, and does it bind those who do
not vote for it?
A
75% in value of the unsecured debt, and binds all if this threshold is reached
209
Q
Insolvency
What three things are prohibited when a company seeks a moratorium?
A
1.Creditors cannot take action to enforce their rights or launch proceedings
2.Landlord may not forfeit lease of company premises
3.Floating charge holder may not crystallise charge
Q
210
Insolvency
What is the exception to the payment holiday a company enjoys during a moratorium?
What companies cannot avail of a moratorium?
A
Wages and other payments to employees, including holiday pay
Companies subject to insolvency proceedings currently or within the last 12 months
211
Q
Insolvency
What is administration?
What is the difference between an administrator and a receiver?
A
Procedure whereby an administrator (independent insolvency practitioner) can run, reorganise,
or sell the company as a going concern
An administrator acts in the interests of creditors as a whole
212
Q
Insolvency
What are the three aims of an administrator, in order of importance?
A
1.Rescue the company
2.Achieve a better result for creditors than if it was wound up
3.Realise property to distribute to creditors
Q
213
Insolvency
What are the two ways an administrator can be appointed to a company?
A
1.Court appointment
2.Company, directors, or holder of a qualifying floating charge file certain documents in
court
214
Q
Insolvency
If the court appointment is used, what two things must the court be satisfied of?
A
1.Company unable to pay debts
2.Administrator likely to achieve better result for the creditors than liquidation
215
Q
Insolvency
If the company or directors appoint the administrator, who must they notify and what
can they do?
A
They must notify any qualifying charge holders, who can agree or appoint an alternative
administrator
Q
216
Insolvency
What is a qualifying floating charge?
A
Charge over the whole or substantially wholeof the company’s assets, containing a provision
enabling to holder to appoint an administrator if a breach allowing the creditor to terminate their
agreement occurs
217
Q
Insolvency
What are four powers of an administrator?
Generally, what proportion of the value of the creditors must agree to an administrator’s
proposals?
A
1.Take control of and sell company assets
2.Bring and defend legal proceedings on behalf of the company
3.Carry out the company’s business
4.Remove and replace directors
Majority
218
Q
Insolvency
What are the effects of the moratorium which gets imposed during administration?
A
1.Restricts ability of third parties to enforce their rights
2.Prevents commencement of insolvency proceedings
219
Q
Insolvency
What is a Company Voluntary Arrangement?
Only who is bound by a CVA?
A
Basically an IVA for companies, subject to the same 75% approval threshold and binding on
dissenters if passed
Unsecured creditors
220
Q
Insolvency
What two groups can start a voluntary liquidation, and what are the two types?
A
Voluntary liquidation can be started by the members or directors, and the two types are:
1.Members’ voluntary liquidation
2.Creditors’ voluntary liquidation
Q
221
Insolvency
In a Members’ Voluntary Liquidation, who controls the process from start to finish, and what are
the two requirements for it to be available?
A
The members and directors control it and to be available:
1.The company must be solvent, and
2.The individuals involved in running the company must wish to wind it up
222
Q
Insolvency
What are the steps in a MVL?
Within what time period after the final step of a MVL is the company dissolved?
A
1.Directors make statutory declaration of solvency
2.Shareholders pass a special resolution to start the liquidation and an ordinary resolution
to appoint the liquidator
3.Appointment of liquidator is advertised in London Gazette and Companies House is
notified
4.Liquidator investigates, and asks creditors for full details of debts
5.Liquidator collects company assets, liquidates them, and distributes funds to creditors
in the statutory order
6.Final accounts are sent to creditors and members, and final return is filed at Companies
House
Three months
Q
Insolvency
223
In a Creditors’ Voluntary Liquidation, who starts the process and who takes it over?
A
Started by the directors and then taken over by the creditors
224
Q
Insolvency
What is the main reason the directors would commence a CVL?
A
The directors are advised the company is insolvent, and do not wish to be personally liable for
the debts of the company through fraudulent or wrongful trading if they continue to trade
225
Q
Insolvency
What are the steps required within the company to begin a CVL?
Within what time period after the final step of a CVL is the company dissolved?
A
1.Directors resolve that the company is insolvent and should be placed into liquidation
2.Shareholder pass special resolution to start the liquidation
3.Resolution is advertised in the London Gazette
4.Directors take certain steps outlined in next card
5.Rest of the process is the same as MVL: appointment advertised, liquidator
investgiates, liquidates, and pays creditors
Three months
226
Q
Insolvency
What must the directors do within 7 days of the shareholder’s resolution to liquidate being placed
in the London Gazette?
A
Prepare a statement of company affairs and send it to the company’s creditors
227
Q
Insolvency
What must any creditor be able to show to petition the court to wind up a company?
What will cause the court to dismiss the petition if shown by the company?
A
Creditor must show company is unable to pay debts
Court will dismiss if company can show it may recover financially or that the debt upon which
the petition is based is disputed
Q
228
Insolvency
What is the order of priority in a liquidation of a company?
A
1.Costs of the liquidation
2.Secured creditors with a fixed charge
3.Preferential creditors
4.Secured creditors with a floating charge
5.Unsecured creditors
6.Connected unsecured creditors
7.Shareholders
Debts abate equally within a class
Q
229
Insolvency
What is a preference?
A
When a debtor intentionally does something that puts a creditor or other similar party in
a better position on liquidation/administration than they otherwise would be
Q
230
Insolvency
When is intent to prefer presumed?
A
If the preference is to a connected person, e.g. director, their spouse, other close family
member or associate
231
Q
Insolvency
To constitute a preference which can be clawed back, within what time limit of the onset of
insolvency must it have occured for:
1.Non-insiders, and
2.Insiders?
Is it required that the preference cause the insolvency?
A
1.Six months
2.Two years
No
232
Q
Insolvency
What is a transaction at an undervalue?
What is the insolvency requirement for a transaction at an undervalue by a company?
A
When property that would otherwise have formed part of the bankruptcy estate is gifted or sold
for significantly less than market value within two years of a company’s insolvency or five
years of an individual’s bankruptcy
A company must have been insolvent at the time of the transaction, or became insolvent as a
result
233
Q
Insolvency
In the context of a transaction at an undervalue by a company, when is insolvency presumed?
A
When the transaction is made to a connected person
Q
234
Insolvency
Regarding a transaction at an undervalue made by an insolvent individual, there is no
requirement to prove insolvency if a transaction is made within what time limit before insolvency?
In the context of a transaction at an undervalue by an individual when is insolvency always
presumed?
A
Two years
If a transaction is made to a close relative or business associate at any time
Q
235
Insolvency
What are the three defences available to a company for a transaction at an undervalue claim?
A
Transaction entered into:
1.In good faith
2.For the purpose of carrying on the business
3.With reasonable grounds to believe it would benefit the company
Q
236
Insolvency
What is one thing which will not amount to a transaction at an undervalue, and why?
A
Granting a security interest in a company asset, because this does not change the value of the
company’s assets
237
Q
Insolvency
When does the criminal offence of fraudulenttrading arise?
A
When a director (or other person who knowingly participates) carries on business of the
company, knowing it is insolvent, with the intent to defraud creditors
Q
238
Insolvency
When does wrongful trading arise?
A
When, at some time before a company became insolvent, the directors knew or ought
reasonably to have known that was no prospect the company would avoid insolvency,
and failed to take adequate steps to minimise losses for creditors
239
Q
In a wrongful trading situation, when does a director’s duty shift and to whom does it shift?
What can a director show in defence to a wrongful trading claim?
A
The duty shifts from what is best for the shareholders to what is best for the creditors, once the
director knows or ought reasonably to know insolvency is unavoidable
That they took every step with a view to minimising potential loss to creditors
240
Q
In what situation is a floating charge void if given to (1) an unconnected person and (2) a
connected person?
A
Unconnected:
1.If it was created for no considerationwithin 12 months ending with insolvency and
2.At the time it was created, the company was insolvent or became insolvent as a result
Connected:
If it was created for no consideration within two years ending with insolvency (no insolvency
step 2)
1
Q
Nature of land
To what extent does a landowner have a right to the air above?
A
To the extent necessary for the ordinary use and enjoyment of the land
Q
2
Nature of land
Is a freehold landowner entitled to all minerals under his land?
A
Except coal, oil, natural gas, gold, silver, and treasure, to which the Crown is entitled
Q
3
Nature of land
What does a landowner need to draw water from a source running through their land?
A
A licence
Q
Nature of land
4
What does the degree of annexation test provide?
A
The greater something is attached to the land, the more likely it is to be a fixture
5
Q
Nature of land
What does the purpose of annexation test look at?
A
Whether something was brought onto the land with an intent to make a permanent
improvement or only a temporary one
If the purpose of annexation test is met, the degree of annexation becomes irrelevant
6
Q
Estates and interests in land
What are the two estates under the Law of Property Act 1925?
A
1.Freehold estate (uncertain duration)
2.Leasehold estate (fixed duration)
7
Q
Estates and interests in land
What are the five types of legal interest, and how must they be created?
A
1.Legal mortgage
2.Legal easement
3.Rentcharge
4.Right of entry
5.Profits a prendre
Must be created by deed.
8
Q
Estates and interests in land
What three things are required for a deed to be valid?
A
1.In writing
2.Clearly intended to be a deed
3.Duly executed as a deed
Duly executed means signed in the presence of an attesting witness and delivered (delivered
means expressing an intention to be bound)
Q
9
Estates and interests in land
What is a rentcharge?
What does the the rentcharge owner’s right of entryallow him to do?
A
An interest in land requiring the landowner to make a periodic payment in respect of land to the
rentcharge owner, but is different to and cannot arise under a lease or tenancy
Enter and take possession of the premises in the event of a default
10
Q
Estates and interests in land
What is a profit a prendre, what are the two types, and what is the difference between the two?
A
An interest in land enabling someone to take something from the land of another
1.Profit a prendre in gross
- Exists independently of the land
- Can be exercised for personal benefit of the profit owner
- Can be bought and sold separately from the land
- Not attached to any piece of land
2.Profit a prendre appurtenant
- Attached to a particular piece of land
- Is bought and sold with the land
11
Q
Estates and interests in land
What does the term concurrent interestsdescribe?
A
The fact that a number of legal and equitableinterests can exist in property at the same time
12
Q
Estates and interests in land
What is a common situation in which an equitable interest may arise by accident?
A
When parties attempt to create a legal interest by deed, but the formalities for a deed are
not met
13
Q
Estates and interests in land
What are the some types of equitable interest?
A
1.Equitable mortgage
2.Equitable covenant (restrictive or positive)
3.Equitable easement
4.Estate contract
Q
14
Estates and interests in land
For what two reasons is the deposit of title deeds as security for a loan not enough to create an
equitable mortgage?
A
1.Equity requires sufficient evidence in writing before an equitable mortgage can be
created
2.A contract for property must be in writing, and in this situation there is no written
agreement capable of enforcement
15
Q
Estates and interests in land
For equitable interests created after 1925 and equitable interests which are not a beneficial
interest under a trust, what is required for an equitable interest to be binding?
A
Notice
A BFP for V without N will not be bound
Other than the two examples, this requires the interest to be registered, otherwise there is no
notice.
16
Q
Estates and interests in land
In what four situations is a deed not needed to transfer property?
A
1.Assents by personal representatives
2.Disclaimers under the Insolvency Act 1986
3.Surrenders by operation of law
4.Leases, tenancies or other assurances not required by law to be in writing
17
Q
Principles of unregistered title
What two interests will a buyer of an unregistered legal estate purchase it subject to?
A
1.Any legal interest over the estate, whether or not they were aware, and
2.Any equitable interest of which they have notice
18
Q
Principles of unregistered title
How are legal interests generally discovered?
A
Checking the deeds, or inspecting the property
Q
19
Principles of unregistered title
What does it mean when a seller deduces title to the buyer, and what is the traditional way of
doing so ?
A
Seller proves that they own the land they are contracting to sell, by producing documents
commencing with a good root of titledemonstrating an unbroken chain of ownership for a
minimum of 15 years
20
Q
Principles of unregistered title
What are the four requirements of a good root of title?
A
1.At least 15 years old
2.Deal with the whole legal and equitable interest in the property
3.Contain adequate description of the property
4.Do nothing to cast doubt on title
21
Q
Principles of unregistered title
What is the epitome of title?
When does the seller send this?
A
A chronological list of all the documents, together with a copy of each
In the contract package
Q
22
Principles of unregistered title
What is required for most equitable rights and interests to be enforceable against subsequent
buyers?
A
Registration with Land Charges Department of HM Land Registry
23
Q
Principles of unregistered title
What is an equitable interest land charge registered against, and who makes the application for
it?
A
It is against the name of the estate owner at the time the land charge was created, not the
address of the property
Applied for by the person who claims the right
24
Q
Principles of unregistered title
What are the two Class C equitable interest land charges relevant to the SQE?
A
1.C(i): Puisne mortgage, i.e. a legal mortgage not protected by deposit of title deeds,
e.g. a second legal charge
2.C(iv): Estate contract, e.g. protects the interest of someone who has an option to
purchase or has executed a contract to purchase but before completion
Second mortgage can’t be protected by title deeds as first lender has them
Q
Principles of unregistered title
25
What are the two Class D equitable interest land charges relevant to the SQE?
A
1.D(ii): Restrictive covenant
2.D(iii): Equitable easement
26
Q
Principles of unregistered title
What does a Class F equitable interest land charge protect?
A
A non-owning spouse’s statutory right of occupation in the matrimonial home
27
Q
Principles of unregistered title
What is the relevance of registration of these land charges?
Does registration bind subsequent owners?
A
They constitute actual notice of the interest
Yes, because registration is actual notice of the interest to all persons
Q
Principles of unregistered title
28
What is the consequence of an equitable land charge not being registered?
A
It is void against a purchaser for value
Unless the doctrine of notice applies and they have other actual, constructive,
or imputed notice
29
Q
Principles of unregistered title
To what two things does the doctrine of noticeapply, and under it, what four things must a
buyer show to take free of any equitable interest?
A
Only applies to equitable interests pre-dating 1925 and beneficial interests under a
trust.
To take free, the buyer must show they:
1. Were a BFP for V without N
2. Acquired a legal estate/interest, not just an equitable interest
30
Q
Principles of unregistered title
When will a person be deemed to have constructive notice?
A
When they would have discovered something with reasonable enquiry
31
Q
Principles of unregistered title
What is imputed notice?
A
Notice given to an agent of a buyer is deemed to be given to the buyer
Things an agent should have known can also be imputed to a principle, i.e. things the agent
should have constructive notice of can be imputed to the principle.
32
Q
Principles of unregistered title
Why is notice irrelevant in the registered system?
A
Because interests are either:
1. Registered (and therefore binding on the buyer) or
2. Protected as overriding interests (which automatically bind the transferee irrespective of
registration or notice)
Failing that neither legal nor equitable interests are binding and any other notice cannot save
them
Q
33
Principles of unregistered title
What does someone receiving unregistered property as a gift take the property subject to?
A
Any equitable interest, even if without notice
Paying value is the key defence mechanism in this situation
34
Q
Principles of unregistered title
What does it mean for an interest in unregistered land to override first registration, and what
are four examples of interests which do this?
A
It means that it is sheltered from and superior to the first registration of the land
1.Lease for seven years or less
2.Legal easement
3.Local land charge
4.Interest of a person in full occupation
35
Q
Principles of unregistered title
How does an interest which overrides cease to be overriding?
A
If the buyer is aware of it, they must disclose it to HMLR, after which it is protected by an
entry on the register
36
Q
Principles of unregistered title
Under the Limitation Act 1980, how long must the owner of an estate in unregistered land
allow someone else to occupy it before the lose the right to recover the land?
A
12 years
10 years in the registered system
37
Q
Principles of unregistered title
In relation to unregistered land, what three things must an applicant for adverse possession
show with regard to possession?
A
1.Actual
2.Exclusive
3.Without permission of the landowner
The point of adverse possession is that the applicant treat the land as theirs as of right, hence
why the law should transfer it to them
Q
38
Principles of unregistered title
Where this 12 year period is met, does the legal owner lose the legal title?
A
No, but they hold the legal estate on trust for the squatter who can apply for registration
In the registered system, the squattor only has the opportunity to apply for registration, which if
objected to, will usually cause the application to be rejected
39
Q
Registration of title
What are the four main triggering events?
A
1.Grant of first legal mortgage
2.Transfer, e.g. conveyance on sale, assent, deed of gift
3.Grant of lease exceeding seven years
4.Assignment of lease with more than seven years remaining
Requires registration within two months if occurring after 1 December 1990
40
Q
Registration of title
What two things happen if registration is not applied for within the two month window in the
case of (1) a conveyance and (2) a lease or mortgage?
A
1.Transfer of legal estate is void, and legal estate reverts to the transferor
2.Lessor/mortgagor retains full legal title but holds as trustee of the lessee/mortgagee
Cost of remedying failure to register falls on the party in default
Two month window may be extended if good reason is provided to the Registrar
41
Q
Registration of title
What is the impact of a failed legal registration becoming an equitable estate?
A
It will lose priority to other transactions which create interests in the estate before defect is cured
42
Q
Registration of title
What are the five classes of title?
A
1.Absolute freehold (legal estate plus all benefitting interests)
2.Qualified (specified interest is excepted from registration)
3.Possessory (based on factual possession; does not affect rights which pre-dated
registration)
4.Good leasehold
5.Absolute leasehold (best as HMLR has inspected freehold and checked for superior
leases)
Q
Registration of title
43
Absolute freehold title is the best kind of title. What are the only two interests absolute freehold
title is subject to?
A
1.Interests on the register after registration, e.g. charges, notices, restrictions
2.Overriding interests at registration
44
Q
Registration of title
How can good leasehold and possessory title be upgraded, and what are they upgraded to?
A
Good leasehold becomes absolute leasehold if landlord’s freehold title is produced.
Possessory becomes absolute freehold if possessory title is not challenged for 12 years since it
was granted.
45
Q
Registration of title
Other than freehold and leasehold estates in land, what three interests can be registered, and
get their own title number and register?
A
1.Rentcharges
2.Franchises
3.Profits a prendre in gross
46
Q
Registration of title
How can a party with an interest in unregistered land ensure that they are notified if an
application for registration is made regarding their land?
A
Register a caution against first registration, and the caution gets its own title number and register
Owner of estate can apply to HMLR for caution to be cancelled on grounds that cautioner lacks
the interest they claim
47
Q
Registration of title
What are four types of disposition which do not operate until registered?
Three are triggering events
A
1.Transfer of freehold estate (for value, by court order, by gift, or by PRs)
2.Grant of legal lease with more than seven years
3.Express grant or reservation of legal easement, legal profit, or legal rentcharge
4.First legal mortgage
Q
48
Registration of title
In the registered system, when does title pass?
A
When the disposition is registered at HMLR
Completion of the contract in unregistered system
49
Q
Registration of title
What are the three registers on the register of title, and what appears on each?
A
1.Property register (basic details; rights benefitting the land)
2.Proprietorship register (class of title; name of estate holder; restrictions on the land)
3.Charges register (rights of others burdening the land, e.g. mortgage or easement)
50
Q
Registration of title
What is a notice?
A
 Entry on the charges register of burdened land in respect of an interest affecting
the registered estate, or
 Entry on the property register of benefitting land in respect of an interest
benefitting the estate.
Q
Registration of title
51
What is a restriction?
A
An entry on the proprietorship register used to prevent any dealing with the land otherwise
than in accordance with the terms of the restriction
E.g. in a tenancy in common: “No disposition by a sole proprietor…”
52
Q
Registration of title
What is an overriding interest in the registered system?
A
Interest which is binding on both the proprietor and a person who acquires an interest despite
the fact that the interest does not appear on the affected register of title
53
Q
Registration of title
What are the three overriding interests in the registered system?
A
1.Legal leases for seven years or less
2.Legal easement or profit, not expressly created by deed
3.Interest of person in actual occupation, except spouse who must use an F land charge
Q
54
Registration of title
What is the main difference between interests which override in the unregistered system and
overriding interests in the registered system?
A
Local land charge is an interest which overrides in the unregistered system but not an
overriding interest in the registered system
Q
55
Registration of title
What is the requirement for the type of easement that can be overriding in the registered
system, and what type of easement cannot be, and why?
A
It must be a legal easement and must not be an express easement, i.e. it must arise from
implied grant/reservation or prescription.
An expressly created easement (i.e. created by deed) cannot be overriding.
Because an express easement must be registered in its own right to be effective, and when it is
placed on the charges register of the burdened land, it becomes binding anyway.
Q
56
Registration of title
Other than not being an express easement, one of what two options must be satisfied for a legal
easement to be overriding in the registered system?
A
1.Known to the buyer or obvious on reasonable inspection, or
2.Exercised within one year of the date of the disposition
57
Q
Registration of title
What must a person claiming the overriding interest have in addition to mere occupation?
A
A property right in the land, e.g. tenancy or right to remain
58
Q
Registration of title
What will make an interest cease to be overriding?
A
If upon disclosure to HMLR during applying for registration or a registrable disposition,
the interest is capable of registration, it will cease to be overriding and will be protected by
an entry on the register of title
59
Q
Registration of title
In the registered system, how is the process of adverse possession different?
A
1.Period is 10 years instead of 12
2.Squatter does not acquire any rights automatically
3.They merely receive a right to apply for registration of title at the end of the period
4.Landowner given opportunity to object, and if they do the application will usually fail
5.Other elements are the same: actual, exclusive possession, without landowner
permission
60
Q
Registration of title
In what three situations may an application for adverse possession still be granted even though
the landowner objects?
A
1.Unconscionable for the proprietor/landowner to seek to displace the applicant (i.e. on
the facts, applicant should be regarded as the proprietor)
2.Applicant is for some other reason entitled to be proprietor
3.Reasonable mistake as to boundaries
Q
61
Co-ownership
What will the court do where, e.g. two parties buy a property, each contributing to the purchase
price, but legal estate is conveyed to only one?
A
Infer a resulting trust, with the legal owner holding the estate on trust for both
62
Q
Co-ownership
What are the options where contributions are (1) equal and (2) unequal?
What way must the legal estate be held, and why?
A
1.Equal: Joint tenancy
2.Unequal: Tenancy in common
As joint tenants, because tenancy in common cannot exist at law
63
Q
Co-ownership
What is the impact of the doctrine of survivorship?
Does the doctrine apply in law and equity?
A
Any attempt to gift or leave a joint tenancy upon death will fail, and it will vest automatically in
the surviving joint tenants
Yes
Q
64
Co-ownership
What is the maximum number of trustees that can hold the legal estate in land?
What about the behind-the-scenes equitable interest?
A
Four
No limit
65
Q
Co-ownership
What is a declaration of trust?
A
A conclusive agreement between co-owners as to how their beneficial interest is to be held
66
Q
Co-ownership
What is severance in the context of a equitable beneficial interest, and what are the seven ways
it can be achieved?
A
Bringing the equitable joint tenancy to an end and converting it to a tenancy in common
1.Written notice
2.Treating a share as separate (e.g. trying to sell/gift in spite of doctrine of survivorship)
3.Disposal of equitable interest
4.Mutual agreement
5.Course of dealings
6.Forfeiture (one tenant kills another)
7.Bankruptcy
67
Q
Co-ownership
After a party disposes of or treats their share as separate, are they completely out of the picture?
A
No, they still hold the legal estate on trust for the purchaser of their share, because severance
only concerns the equitable interest
Q
68
Co-ownership
Why does the bankruptcy of one joint tenant sever an equitable joint tenancy?
A
Because the bankrupt’s equitable share is transferred to the trustee
Q
69
Co-ownership
Although the intention of the parties will control, if it cannot be determined, what will the court
assume?
A
That equity follows the law, and the beneficial interests reflect the legal interests, i.e. joint
tenancy, because tenancies in common cannot exist at law
70
Q
Co-ownership
What should a solicitor acting for a buyer always be aware of when the legal estate is held by
only one party?
A
There could be behind the scenes co-owners who may have a claim on the property
71
Q
Co-ownership
What is overreaching, and how does it occur?
Why does this allow overreaching?
A
A process under which a buyer may take property free of a beneficiary’s interest under a trust,
when purchase money is paid to all trustees (minimum of two or one if a trust corporation)
The payment transfers the equitable interest of the beneficiary from the land and attaches it to
the purchase money.
Q
72
Co-ownership
What should a buyer do if there is only one trustee, to ensure they can overreach and take
property free of the interest?
A
Ensure that a second trustee is appointed to receive the money, or obtain a written release
from the beneficiary regarding this requirement
73
Q
Co-ownership
In the registered system, how will behind the scenes beneficial interest typically be evidenced?
A
By a Form A restriction on the proprietorshipregister
74
Q
Co-ownership
When will sections 14 and 15 of the Trusts of Law & Appointment of Trustees Act 1996 help coowners?
A
If they cannot decide how or when to dispose of property
Q
75
Co-ownership
What does section 14 allow?
What does it not allow?
A
It allows a trustee or any other person with an interest in property subject to a trust to apply to
the courts for an order relating to the trustee’s duties to sell, obtain consent, or declare the
nature of a party’s interest
It does not allow the court the appoint or remove a trustee
76
Q
Co-ownership
What are the four factors under section 15 for the court to consider in determining an application
under section 14?
A
1.Intentions of the trustees
2.Purpose for which the property subject to the trust is held
3.Welfare of any minor who occupies or might reasonably be expected to occupy
4.Interests of any secured creditor or beneficiary
Q
77
Co-ownership
If the court does have to make a split upon the breakdown of a relationship, what proportion will
each receive and what will the court consider?
A
Each party will receive the proportion the court considers fair considering all the
circumstances and not just those surrounding the purchase
78
Q
Leases
An oral tenancy is valid if for less than how long?
A
Three years
79
Q
Leases
Although a lease must generally be created by deed, what two things are required to create a
legal short lease of three years or less in writing or orally without a deed?
A
Tenant:
1. Takes possession of leased premises
2. Pays at least market rate rent and are not required to pay any upfront sum or premium
Q
80
Leases
In a long term lease, what is required for the rent to be adjusted?
A
The lease must provide for it
81
Q
Leases
What is a reversionary lease, and what is the maximum period between the lease being entered
into and the tenant taking possession for it to be valid?
A
A lease under which the tenant does not take possession until some time in the future
21 years
Q
82
Leases
If there is no notice provision in a periodic tenancy, how much notice must be given to terminate
it?
A
An amount of time equivalent to one period in the tenancy
Q
83
Leases
In an implied periodic tenancy, how is the perioddetermined?
A
Based on the intervals between the payment of rent
84
Q
Leases
What arises and what does not arise if an owner of land allows a buyer to take possession of
land before a written agreement is entered into?
What is the effect of the prospective buyer in possession attempting to assign?
A
A tenancy at will (not a legal interest) may arise, but no estate in land is created
It operates as notice to terminate the tenancy, as soon as the tenant notifies the landlord of such
85
Q
Leases
In the case where such a tenancy at will arises, what is the effect of the prospective buyer in
possession (1) attempting to assign and (2) beginning to pay rent?
A
1.It operates as notice to terminate the tenancy, as soon as the tenant notifies the
landlord of such
2.Court will treat it as a periodic tenancy unless there is very clear evidence that
the parties intend the tenancy at will to continue
Q
86
Leases
In what two situations is a lease void for uncertainty?
A
1.A term is uncertain
2.Starting/ending date (if fixed) is uncertain/not knowable
87
Q
Leases
Even if a lease is not created by deed and is not an eligible short lease, equity will recognise
such as a contract for the disposition of land if what two conditions are met?
What does this not apply to and what will it not protect against?
A
1.Lease in writing incorporating all terms expressly agreed
2.Signed by all parties
This exception does not apply to oral leases and will not protect against a buyer of the landlord’s
reversion unless the lease is registered
Q
88
Leases
How is an equitable lease which was recognised due to the failed creation of a legal lease
appropriately registered in (1) the unregistered system and (2) the registered system?
A
Unregistered: Class C(iv) estate contract land charge
Registered: Notice on the charges register
Otherwise not binding on a BFP for V without N, unless rent is paid in which case it converts to a
legal interest which binds a purchaser of unregistered land and will be an interest that overrides
first registration or a registrable disposition
89
Q
Leases
What are the three characteristics of a lease?
What is likely created if any is missing
A
1.Exclusive possession
2.Fixed or periodic time certain
3.In consideration of a premium (lump sum or periodic payments)
Licence: a right to use land in some way, creating neither an estate nor an interest in land
90
Q
Leases
What covenants will a lease generally contain?
A
 To pay rent
 Quiet enjoyment
 Repair (landlord and tenant’s duties)
 Uses to which the premises can be put
 Alterations (either qualified or absolute bar)
 Assignment (either qualified or absolute bar)
91
Q
Leases
What is the covenant of quiet enjoyment?
A
An obligation imposed on the landlord to not interfere in any way with the tenant’s enjoyment of
the property nor allow the lawful activities of other tenants to do so
92
Q
Leases
Where an absolute bar is in place to make alterations or assign, can the tenant still ask for the
landlord’s specific consent?
Where the bar is qualified, how forthcoming must consent be?
A
Yes
It must not be unreasonably withheld
93
Q
Leases
What is Commercial Rent Arrears Recovery?
Is is automatically available?
A
Statutory procedure allowing landlords of commercial premises to recover rent arrears by
taking control of tenant’s goods and selling them
Available even if not expressly provided for in the lease
94
Q
Leases
What is forfeiture with regard to a lease, residential or commercial?
Is it automatically available?
A
The right of the landlord to re-enter the premises and bring the lease to an end due to
default by the tenant, usually rent not paid
Must be expressly provided for in the lease
Q
95
Leases
What is the tenant’s right in a forfeiture situation?
A
Settle the arrears instead of losing premises
Q
96
Leases
How might a landlord waive his right to forfeit?
A
By being aware of the default and then:
1.Accepting or demanding payment
2.Serving notice on tenant of repairs to be done
3.Carrying out distress for rent (re-entering and seizing tenant’s goods in lieu of rent)
Any act suggesting landlord has looked beyond forfeiture and wants to solve the issue another
way
Q
97
Leases
What is a Jervis v Harris clause?
What is the significance of the costs being recoverable as a debt?
A
Self-help clause, enabling landlord to re-enter to make repairs and recoup costs as
a debt if tenant breached covenant to maintain after serving notice on tenant to carry out
repairs
Costs are recovered in a more straightforward debt action, rather than a damages action
Q
98
Leases
What are the remedies for breach of the covenant to pay rent?
A
1.Commercial Rent Arrears Recovery
2.Forfeiture
99
Q
Leases
What are the remedies for breach of the covenant to repair/maintain?
A
1.Damages
2.Specific performance
3.Self-help
4.Forfeiture again
5.Debt action
100
Q
Leases
What is a section 146 notice, and what are the three requirements for one?
A
The notice served on a tenant by a landlord for breach of repairing obligations when landlord
wishes to forfeit the lease
1.Specify the breach
2.Require the breach to be remedied within a reasonable time
3.Require tenant to pay compensation in any event
101
Q
Leases
What is the first determining factor in whether covenants of a lease bind the original parties after
assignment?
A
Whether the lease is granted before 1 January 1996
102
Q
Leases
What is the position under a lease made (1) before 1996 and (2) from 1 January 1996?
In an on or post 1 January 1996 situation, what is the assignor still liable for?
A
 Before 1996: The original landlord and original tenant remain liable to one another,
even after assignment, unless expressly released
 From 1 January 1996: Tenants are automatically released from their covenants upon
assignment
Breaches of covenant which occurred before assignment
103
Q
Leases
What is an authorised guarantee agreement?
Allowed in a residential lease?
A
An agreement, usually required by a landlord as a condition of assignment, whereby the original
tenant will act as guarantor for his immediate successor in title, meaning only the last party to
give an AGA is liable
Not allowed in the lease and if the landlord tries to impose such in an assignment situation, it
must be imposed lawfully
Q
104
Leases
What occurs when a tenant tries to create a sublease which is longer than his own lease?
A
No new lease is created, but the tenant’s full lease will be assigned instead
Q
105
Leases
What is the required form of the assignment of a lease?
A
Deed, even if the lease is made orally
Q
Leases
106
What is the effect of an assignment by a tenant made in breach of the landlord’s consent
requirement?
A
The assignment is legally effective, but there is a breach of covenant on the part of the original
tenant as with the landlord
107
Q
Leases
Are the covenants in the head lease usually enforceable against a subtenant, and why?
A
No, because there is no privity of contract or estate between the landlord and the subtenant
Q
108
Leases
Is a sublease affected by the assignment of a head lease?
A
No
Q
109
Leases
Who may serve notice to terminate where there are multiple landlords and multiple tenants?
A
Any of them
110
Q
Leases
What are the two ways the parties can mutuallyagree to bring a tenancy to an end?
A
1.Surrender: Parties agree tenant will give up possession to the landlord
2.Merger: Parties agree landlord will transfer reversion to the tenant
Q
111
Leases
If a head lease is ended by expiry, notice to quit, or forfeiture, does any sublease existing under
it come to an end?
A
Yes
Q
112
Leases
If a head lease is ended by surrender, does any sublease existing under it come to an end?
What about merger?
A
No, the subtenant will become the tenant of the head landlord on the terms of the
sublease and will have to pay rent due under the sublease to the head landlord
New owner of the estate (usually the headlease tenant)will hold the estate subject to the
sublease, and the subtenant’s position will be the same as with surrender
113
Q
Easements and profits
What are the three essential characteristics of an easement?
A
1.There must be a dominant and servienttenement
2.Easement must benefit the dominant land, not just the owner/occupier personally
3.Dominant and servient land must be in separate ownership
114
Q
Easements and profits
What are the two requirements for a legal easement or legal profit?
A
1.For equivalent of an absolute interest (fixed period or forever, but not for life)
2.Created by deed
If no deed, equity may rescue
Q
Easements and profits
115
What two conditions must be met for equity to rescue a legal easement or profit not created by
deed?
A
1.In writing incorporating all terms expressly agreed
2.Signed by both parties
Same as exception to non-short lease not by deed.
116
Q
Easements and profits
What are the three ways an easement can be created?
A
1.Express grant or reservation (legal)
2.Implied grant or reservation (equitable)
3.Prescription (legal)
Q
117
Easements and profits
Under section 62 of the Law of Property Act 1925, what type of easements and profits will pass
under statute even if not specifically mentioned in the transfer document (and why), and does
this apply to grant and reservation(and why)?
What are the two conditions for section 62 to apply?
A
Easements and profits appurtenant because they run with the land and cannot be transferred
on their own.
Just grant, because if the seller wanted to reserve them when selling a parcel of land, they
easily could have (same reason why implied easement generally can’t help seller other than two
exceptions).
Grant must be within the power of the grantor, and there must be no contrary intention
118
Q
Easements and profits
When does implied grant or reservation arise, and what are the four types of easements which
can arise impliedly?
A
When the parties have not expressly created necessary easements as part of the conveyance
1.Easements implied by necessity
2.Intended (but not executed) easements
3.Ancillary easements
4.Easements implied by existing use
1 and 2 are available to the grantor, in exception to the general rule that they should reserve
whatever rights they need
119
Q
Easements and profits
1.When will an easement be implied by necessity?
2.From what will an ancillary easementarise?
A
1.Where a parcel of land is landlocked, a right of way will be implied in order to access
2.From the realities of the situation, e.g. a right to take water from a spring gives rise to
an ancillary right of way to that spring
120
Q
Easements and profits
What are the three requirements for an easement by existing use to be implied on sale/transfer?
A
Easement must:
1.Be continuous and apparent
2.Be necessary to the reasonable enjoyment of the land acquired
3.Have been used by the seller for the benefit of the land at the time of conveyance
121
Q
Easements and profits
What are the two requirements for an easement to arise by prescription?
A
Party has used the benefit:
1.Unchallenged for 20 years, and
2.As of right, i.e. without permission or making payment
122
Q
Easements and profits
What is the status of an easement arising by common law prescription?
A
It is a legal interest
123
Q
Easements and profits
When will legal easements and profits bind a buyer in the (1) unregistered system and (2)
registered system?
A
1.When they come into existence
2.When they are registered
Q
124
Easements and profits
In the registered system, what is the consequence of not registering a right which arises by
express grant or reservation?
A
It will not take effect as a legal interest, and will not override an equitable interest
125
Q
Easements and profits
What is required for an equitable easement to bind a buyer in the unregistered system?
A
Registration as a D(iii) equitable easement land charge
Q
126
Freehold covenants
Is the original burdened party liable on the covenant even after the sale of land by the
person benefitting from the covenant, and why?
i.e. is the original burdened party liable to a successor, where the original burdened party
remains?
A
Yes, under privity of contract, the person to whom the covenantee sells is essentially assigned
the right to benefit from the covenant
127
Q
Freehold covenants
What typically determines if a covenant is enforceable between successors?
i.e. where both parties have moved on and no original party remains
A
Whether it is a positive or restrictive covenant
Positive generally only binds the original parties; restrictive can bind successors
128
Q
Freehold covenants
What are the four conditions for the benefit of a restrictive covenant to be enforceable by
the successors of the original benefitting party, where the original burden party is gone?
Remember, if the original burdened party is still in situ, a restrictive covenant remains binding on
them
A
1.Covenant touches and concerns the land, i.e. benefits the land in the same way as
an easement
2.It was intended to pass with the legal estate held by the original benefitting party
3.The BP held the legal estate in the land to be benefitted at the time the covenant
was made, and
4.The successor of the original BP now holds the legal estate
Essentially a privity of contract argument to transfer a benefit to the land, which was intended to
run with the legal estate, to the person who now owns the legal estate
Q
129
Freehold covenants
Is the burden of a restrictive covenant enforceable in law against a successor in title of
burdened land?
A
No, but it may be enforceable in equity if:
1.The original benefitting party held the legal estate in the land to be benefitted when
the covenant was made, and
2.Burden was intended to run with the land
3.Convenant is on the charges register of burdened land if registered, or D(ii)
restrictive covenant land charge if unregistered
Registration is only required to enforce in equity, as if it is a legal interest, e.g. restrictive
covenant, it is binding on the world at large
130
Q
Freehold covenants
What are three of the ways of otherwise enforcing a positive convenant?
A
1.Grant a lease
2.Chain of indemnity covenants
3.Benefit and burden rule
131
Q
Freehold covenants
Why does a granting a lease allow a positive covenant to be enforced?
A
Because the burden of positive and negative leasehold covenants run with the land due to privity
of estate
132
Q
Freehold covenants
How does a chain of indemnity covenants allow a positive covenant to be enforced?
A
The original covenantor and each successive successor in title obtain an indemnity covenant from
the next buyer, so the liability is continually offset and primarily enforceable
133
Q
Freehold covenants
What is required for the rule that a person cannot accept a benefit without also accepting the
burden, and what is a consequence of them failing to uphold a positive convenant?
A
The benefit and the burden must be related to each other, e.g. benefit of using a road paired
with burden of helping fund its maintenance.
Whilst the obligation to maintain is not enforceable against a successor, they can be denied use
of the benefit.
Q
134
Mortgages
How must a legal mortgage be made?
A
By deed
An unsuccessful attempt to create a legal mortgage will be rescued by equity, if the appropriate
writing can be evidenced
135
Q
Mortgages
What are the three situations in which an equitable mortgage can be created?
A
1.Parties agree that mortgage should only be equitable
2.Contract in writing to create a legal mortgage, and there is no deed or the deed
fails (rescue)
3.Mortgagor owns equitable interest only
136
Q
Mortgages
Regarding registered land, how is (1) a legalmortgage and (2) an equitable mortgage
protected?
A
 Legal mortgage must be completed by registration, and has priority over competing
interests (unless previously registered or overriding)
 Equitable mortgage is protected by placing a notice or restriction on the property’s
register
Q
137
Mortgages
Regarding unregistered land, who has priority regarding mortgages?
A
The first mortgagee, because they will have custody of the title deeds
138
Q
Mortgages
Regarding unregistered land, how is (1) a subsequent legal mortgage and (2)
an equitable mortgage protected?
A
 Subsequent legal mortgage is protected by registration as a C(i) puisne mortgage
land charge
 Equitable mortgage is protected by registration as a C(iii) general equitable land
charge
Both are registered against the borrower’s name
Q
139
Mortgages
Within what time period of a company creating a charge must it be filed with Companies House?
A
21 days
140
Q
Mortgages
What are the two main situations in which a third party may have an interest in land subject to
sale?
A
1.Tenants
2.Co-owners, or non-owning occupants who contributed to the purchase price
141
Q
Mortgages
What legal tenancies in (1) unregistered system and (2) registered system will bind a
mortgagee?
A
1.Unregistered: legal tenancies granted before the mortgage was created
2.Registered: legal tenancies not exceeding seven years
A legal tenancy of registered land exceeding seven years must be registered in its own right to
be binding
142
Q
Mortgages
What equitable tenancies in (1) unregistered system and (2) registered system will bind a
mortgagee?
A
1.Unregistered: equitable tenancies registered as a C(iv) estate contract land charge
2.Registered: equitable tenancies not exceeding seven years, and the tenant is in
occupation
Tenant must be in occupation as this converts it to a legal interest, which is an overriding interest
143
Q
Mortgages
Where the mortgage deed prohibits creation of tenancies without mortgagee’s consent, is the
mortgagee bound by unauthorised tenancies?
A
No
144
Q
Mortgages
What is required where an institution is lending money secured by co-owned property, but the
proceeds are to be used by only one of the co-owners for a separate purpose?
A
Other co-owner must be:
1.Separately represented by another solicitor, and
2.Given full financial information
The other co-owner must understand the practical implications of the proposed transaction in a
meaningful way
145
Q
Mortgages
What are four of the rights a legal mortgagee has once the mortgage is registered as a charge?
A
1.Sue for the debt
2.Take possession
3.Foreclose
4.Sell
Equitable mortgagee has the same rights, with a different process for sale
146
Q
Mortgages
Whilst a legal mortgagee can usually always take possession, the presence of what on the land
adds an additional requirement, and what is this step?
A
If there is a dwelling on the land, possession can only be sought through the courts
147
Q
Mortgages
What is the effect of foreclosure?
When does the right to foreclose arise?
A
The mortgagee becomes the owner of the property via court order
Same as right to sell, right to foreclose does not arise until after the contractual due date has
passed (usually six months after creation)
148
Q
Mortgages
What are the three requirements, one of which is enough, for the power of sale to become
exercisable?
In addition to the contractual due date having passed
A
1.Interest payments more than two months in arrears
2.Written request for payment and three months has passed
3.Breach of any other term of the mortgage
Q
149
Mortgages
What is sale by a legal mortgagee under a power of sale subject to and what is it free of?
A
Subject to any prior mortgages
Free of any interest over which the mortgage has priority, e.g. unprotected interests
A legal mortgage also has priority over any subsequent legal mortgages. This means a buyer
from a lender who has taken possession takes free of any other legal mortgages created after
the one the property was repossessed under.
150
Q
Unless there is anything on the register to the contrary, what will a legal mortgage have priority
over when it is entered on the register of title?
A
Any interest whose priority is not protected
151
Q
What two things will have priority over a properly registered legal mortgage in the registered
system?
A
1.Charge registered before the mortgage, and
2.Overriding interest if it existed before the mortgage
Q
152
Mortgages
Whilst an equitable mortgagee will generally have the power of sale, what do they not have?
A
Power to convey or transfer the legal estate
Q
153
Mortgages
When an equitable mortgage in the registered system is protected by placing a notice or
restriction on the property’s register of title, what will the equitable mortgage have priority over?
A
Any later dealing with the legal estate, even a later legal mortgage
Q
154
Mortgages
For all legal mortgages in the unregistered system other than the first protected by the title
deeds, what is the main factor in determining priority?
A
The date of registration as a legal charge
Q
155
Mortgages
What are the priority rules for equitable interests (including equitable mortgages) in both
systems?
A
Generally, first in time has priority
Q
1
Preliminary matters
If acting for the buyer, what is the first thing you should advise them to do?
A
Carry out a physical inspection of the property to determine whether there are any structural
defects or problems which might affect the value
2
Q
Preliminary matters
What are the three requirements for a solicitor to represent their buyer and the lender?
A
1.Lender is an institutional lender
2.Standard certificate of title is provided
3.Confidentiality as to both parties is maintained
3
Q
Preliminary matters
What is required for the buyer’s solicitor to disclose information to the lender, and what must
happen if this does not occur?
A
The buyer’s consent. If the buyer wishes for the solicitor to keep something from the lender, the
solicitor must cease acting for the both parties
4
Q
Preliminary matters
What situation on the exam will suggest a conflict of interest?
A
Solicitor acting for parties on different sides of a transaction
5
Q
Preliminary matters
Where there is more than one buyer or seller, what must a solicitor acting for both ensure?
After what two steps can the clients agree for one to take the lead?
A
That they are instructed by both clients
After: 1. Initial instructions, and 2. Identification requirements are satisfied
6
Q
Starting a conveyancing transaction
How long is an Energy Performance Certificate valid for?
What buildings don’t require one?
A
10 years
Not required for listed buildings
Q
7
Starting a conveyancing transaction
What things should be considered when entering into a commercial leasehold transaction?
Checklist applies to all leases in reality
A
An offer in writing should be made including clear terms on:
* Rent and length of term
* Rights to break the lease
* Rent review
* Rights to assign
* Obligations
8
Q
Starting a conveyancing transaction
How is title investigated in (1) the registered system and (2) the unregistered system?
A
1.Copy of the register of title and title plan is obtained from HMLR
2.Title deeds and charges in the seller’s name need to be located
Q
9
Starting a conveyancing transaction
Who does the Law Society Conveyancing Protocol require to remedy pre-contract title defects?
A
The seller’s solicitor, rather than waiting for buyer to raise an inquiry
10
Q
Starting a conveyancing transaction
In the unregistered system, what must the seller’s solicitor do regarding the title deeds if they
are held by a lender?
A
Write to the lender to obtain the deeds and give an undertaking not to part with the deeds until
such time as the mortgage is paid off
As such, they will also seek an indicative redemption figure so they know if there will be
enough money to make good on this undertaking
11
Q
Starting a conveyancing transaction
What is included in the contract package sent to the buyer from the seller of freehold
property?
A
 Draft contract in duplicate
 Property Information Form, and Fittings and Contents Form
 Copy of the seller’s title
 Copy of title plan
 Guarantees, or planning permission, if any
12
Q
Starting a conveyancing transaction
The Property Information Form contains details of what issues?
A
 Disputes with neighbours
 Building work or alterations by the seller
 Notices received about the property
 Flooding
 Services that cross the property, e.g. pipes, wires serving neighbours
 Utilities property is connected to
 Occupiers
13
Q
Starting a conveyancing transaction
What is the title plan?
A
A map showing the location of the property being sold and a red outline of the land included in
the title
14
Q
Starting a conveyancing transaction
What type of defects (1) must the seller disclose and (2) need not be disclosed?
A
Must disclose latent defect
Need not disclose patent defect
15
Q
Starting a conveyancing transaction
What is (1) a latent defect and (2) a patent defect?
A
1.Latent: Non-physical burden that would not be apparent from an inspection of the
property, e.g. underground easement or restrictive covenant
2.Patent: One that would be revealed by an inspection e.g. visible right of way
16
Q
Starting a conveyancing transaction
What two remedies are available to the buyer where the seller breaches a duty to disclose?
A
Withdraw from contract after exchange or claim damages
17
Q
Starting a conveyancing transaction
In what one situation will a seller actually be held liable where there is a defect which is both
latent and physical?
A
Where the seller has willfully tried to obscurethe defect
18
Q
Starting a conveyancing transaction
What is included in the contract package sent to the buyer from the seller of leasehold
property, i.e. assigning their leasehold interest?
A
 Draft contract in duplicate
 Official copies of leasehold register of title and plan
 Copy of the lease
 Property Information Form, Leasehold Information Form, and Fittings and Contents
Form
 Copy of landlord’s freehold register of title and plan
 Copy of insurance policy for entire building
 Copy of last three years’ service charge accounts
19
Q
Starting a conveyancing transaction
What are the three sections in the Contract Incorporating the Standard Conditions of Sale?
A
1.Particulars of sale
2.Standard conditions of sale
3.Special conditions of sale
Q
20
Starting a conveyancing transaction
What is required of something agreed between buyer and seller to be legally binding?
A
It must be in the contract
21
Q
Starting a conveyancing transaction
What is the default deposit under the Standard Conditions?
A
10% of the purchase price, although the parties can agree lower
Even where the parties negotiate a lower deposit, buyer liable for full 10% if they breach
22
Q
Starting a conveyancing transaction
As long as the property is in England and Wales, what can the buyer do with the deposit before
completion?
A
Count it towards their deposit on a new residence
Q
23
Starting a conveyancing transaction
Under the Standard Conditions, how is the deposit held between exchange and completion?
A
By the seller’s solicitor as stakeholder, i.e. on behalf of buyer and seller, and can’t be paid to
seller until completion
Possible for seller’s solicitor to hold as agent for seller, but not advisable for buyer to allow this
24
Q
Starting a conveyancing transaction
What three things does it mean when the Standard Conditions provide that a seller sells a
property with full title guarantee?
A
Seller:
1.Is entitled to sell the property
2.Will, at their own cost, transfer this titleto the buyer, and
3.Is selling the property free from all charges or encumbrances other than those
disclosed in the contract
25
Q
Starting a conveyancing transaction
To compare, what is a limited title guarantee?
A
Seller merely warrants they have not created any charges or encumbrances during their
period of ownership other than those disclosed in the contract
26
Q
Starting a conveyancing transaction
What is the buyer’s indemnity covenant in the Standard Conditions?
A
If the contract does disclose any obligations on the buyer relating to the property, the buyer
agrees to carry these out and to indemnify the seller if the buyer breaches
27
Q
Starting a conveyancing transaction
Under the Standard Conditions, when does risk pass to the buyer and why?
A
On exchange, because that is when the equitable interest passes
The seller does not have to insure the property between exchange and completion
Q
28
Starting a conveyancing transaction
When do terms in the Contract Incorporating the Standard Conditions have legal effect?
What trap should we look out for on the exam?
A
On exchange
Look out for suggestion of the applicability of contract terms pre-exchange
29
Q
Starting a conveyancing transaction
Under the Standard Conditions, when will completion occur if the contract is silent?
A
20 working days after exchange
30
Q
Starting a conveyancing transaction
What is the consequence of the buyer not sending funds by 2pm on the day of completion?
When does this not apply?
A
Buyer liable to pay interest at the rate specified in the contract, even if they have already moved
into the property
When the reason for not sending the funds is because the seller has not vacated
31
Q
What two things might be included in the Special Conditions of Sale, if they are relevant?
A
 Whether property will be vacant on completion or if there will be a tenant (or other
occupants) in situ
 Completion is to occur at a time other than 2pm
Buyer should confirm occupants will leave the property upon completion
32
Q
Starting a conveyancing transaction
What three things should the buyer’s solicitor do if they discover a defect in title having
inspected the contract package?
A
1.Request seller’s solicitor provide a draft insurance policy, and confirm seller will pay
2.Include this agreement as a special condition in the contract
3.Notify the buyer’s lender
Indemnity insurance or seller indemnifying buyer will usually greenlight a defect situation
Q
33
Investigating title
What must a seller’s solicitor do if they discover there has already been a triggering event in
relation to unregistered property they are dealing with, and when?
A
Make an application to HMLR before drafting the contract
If the buyer notices this, they must ask seller to register the property
Q
34
Investigating title
When investigating registered property, what should the buyer’s solicitor look for?
A
Whether there are any encumbrances on the charges or proprietorship register
They also check the property register for benefits
35
Q
Buyer’s pre-contract searches and enquiries
What are the six pre-contract searches which are always carried out by the buyer’s solicitor?
A
1.Local search
2.Drainage and water search
3.Environmental search
4.Index map search
5.Bankruptcy search (if buyer is borrowing)
6.Company search (if seller is a company)
36
Q
Buyer’s pre-contract searches and enquiries
What things are revealed by the local search?
A
 Local land charges which aren’t on the charges register due to small sums
 Planning agreements related to development of the property
 Listed buildings on the property
 Standard enquiries such as road frontage; public rights of way; planning entries;
building regulations consents
37
Q
Buyer’s pre-contract searches and enquiries
Why is an environmental search important?
A
Because a buyer will be liable for paying for the clean up costs of any land they own which is
contaminated, even if it was caused by the seller
38
Q
Buyer’s pre-contract searches and enquiries
What are some location specific searches which might be needed?
A
1.Coal mining search
2.Chancel liability search (ancient obligation to upkeep a church)
Q
39
Buyer’s pre-contract searches and enquiries
What is the equivalent of the property information form used where the property
is commercial?
A
Commercial Property Standard Inquiries
40
Q
Planning
Under the Town and Country Planning Act 1990, planning permission is required for any
development. In what two ways is developmentdefined?
A
1.Building, structural changes, engineering, mining or other operations with regard to
land, or
2.Making any material change of use of any buildings or other land
Q
41
Planning
What is a permitted development?
What are some examples?
A
A development which has deemed permissionand does not need to apply for express
permission
Small home extension, porch, fence, conservatory
Q
Planning
42
What is the effect of a local authority passing an Article 4 Direction?
A
It revokes the permitted development exception for the relevant area, meaning that all
developments must be applied for
43
Q
Planning
What are the two types of express planning permission?
A
1.Outline
2.Detailed
A property owner must apply for express permission if deemed permission either doesn’t apply
or has been revoked
Q
44
Planning
What is outline permission?
A
Broad permission to the principle of the development, (subject to any reserved matters which if
part of the permission must be approved by the authority within three years)
Q
45
Planning
No longer than how long after the grant of outline permission (or the approval of reserved
matters where relevant) must development begin?
A
Two years.
Therefore it could be five years before development needs to begin
Q
46
Planning
Where detailed, i.e. full permission is granted, within what time limit must development begin?
A
Three years
Q
47
Planning
What is the consequence of planning issues running with the land?
A
The buyer is liable for any planning issues relating to land they own
Q
Planning
48
Within what time limit of breach must a planning enforcement notice be served where it is
regarding (1) unauthorised building worksand (2) all other breaches, e.g. breach of
conditions of planning?
A planning enforcement notice is the prerequisite to a planning enforcement action
A
1.Unauthorised building works: Four years
2.Other breaches e.g. material change of use: Ten years
No time limit for listing building
It could require compliance with planning laws or even pulling down or rebuilding a development
Q
49
Planning
On the exam, what should a planning issue not be confused with, and which takes priority?
A
A planning issue should not be confused with a title issue, and planning permission will not cure
a title defect
Q
50
Planning
Even though a development might not need planning permission, what will all works require?
A
Compliance with building regulations
51
Q
Planning
Within what time limit of breach must a local authority bring an enforcement action regarding
building regulations?
What option is always available to a local authority?
A
12 months
A local authority can always seek an injunction requiring the owner to comply with building
regulations
52
Q
Planning
Where the time for buildings regulation enforcement has passed, what might a buyer still seek
from a seller where it is an issue?
What should not be done before this step is completed?
A
Buyer should ask seller for an indemnity
Local authority should not be contacted, as it can negate the availability of insurance
Q
Planning
53
Regarding planning in a commercial context, what is a use class?
A
A category of use describing the activities of the building, e.g.:
1.Commercial, business, and service, e.g. shop, restaurant
2.Learning and non-residential institution, e.g. museum, library
3.Local community, e.g. small shops, community hall
Planning permission generally required to change use class, even if no building work is being
done
54
Q
Planning
When planning permission is granted for a use class, is further permission needed to change the
activity within the same use class?
A
Not unless actual building work is required to make that change
55
Q
Planning
Whilst some changes from one use case to another are allowed under permitted development, in
what two situations will this not be available and changes to a use class will therefore require an
application?
A
1.Conservation area
2.Listed building
56
Q
Buyer’s funding
Regarding buyer’s funding of the property, whilst a solicitor cannot offer a financial opinion on
the mortgage offer, what can they do?
A
Explain the mortgage options available and the general terms, e.g. length, interest rate,
conditions, but not whether it is a good product or not
57
Q
Buyer’s funding
What are the mortgage options available to a buyer?
A
1.Repayment mortgage
2.Interest only mortgage
3.Endowment and pension mortgage (buyer pays monthly premium and the insurance
policy/pension will cover the balance of the mortgage at the end of term)
4.Sharia compliant mortgage
Q
Buyer’s funding
58
What are the two functions achieved by the buyer’s solicitor submitting a clear Certificate of
Title to the lender?
A
1.Confirms to lender that title is good and marketable
2.Requests a release of the mortgage funds
59
Q
Buyer’s funding
What should we look for on the exam which might not appear to trigger a registration
requirement for unregistered property but actually does, and why?
A
A client mortgaging property they already own which has not previously been subject to a
mortgage, because a first legal mortgage is a trigger for registration
60
Q
Buyer’s funding
What is required to complete and perfect a mortgage against third parties who might have an
interest in the mortgaged property?
A
Purchase is completed and mortgage registered with HMLR
Q
Buyer’s funding
61
If mortgage completion triggers a registration requirement concerning unregistered land, within
what period must the buyer’s solicitor register the mortgage?
A
Two months
62
Q
Exchange of contracts
What are three methods of exchange?
A
1.Person
2.Post
3.Phone (most common)
Q
63
Exchange of contracts
When is Formula A used for exchange and what is a quick way to remember this?
A
When one solicitor holds both signed parts of the contract.
Remembered because one solicitor is Away and the other is doing All the work
Q
Exchange of contracts
64
When is Formula B used for exchange and what is a quick way to remember this?
A
When each solicitor hold their own client’s part of the contract.
Remembered because Both solicitors are working.
Most common
65
Q
Exchange of contracts
When is Formula C used for exchange?
A
When there is a Chain of transactions
Q
66
Exchange of contracts
If there is to be more than a few weeks’ wait between exchange and completion, how is the
interest in a sale contract protected after exchange, where land is (1) registered and (2)
unregistered?
A
Registered: Notice of the estate contract placed on the seller’s charges register
Unregistered: C(iv) estate contract registered against the seller’s full name
Both are removed upon completion.
67
Q
Exchange of contracts
How is a contract varied after exchange?
A
Both parties must exchange contracts again with the variation included in the new contract
68
Q
Pre-completion
If the seller has a mortgage, what is the first pre-completion step for the seller’s solicitor?
A
Ask lender for an updated redemption figureand prepare a completion statement
69
Q
Pre-completion
What are the three types of purchase deed used to transfer freehold property?
A
1.Conveyance (unregistered)
2.Transfer (registered and unregistered)
3.Assent (used by PRs to transfer to beneficiary)
70
Q
Pre-completion
What are the two types of form used when (1) whole of the land and (2) part of the land in a
title is being transferred?
A
1.Whole: TR1 Form
2.Part: TP1 Form
71
Q
Pre-completion
In a leasehold situation, what is the final version of a lease called, and what are its two parts?
A
An engrossment made up of the original and counterpart
72
Q
Pre-completion
What is the purpose of the buyer’s pre-completion searches?
What should they not be confused with?
A
To ensure information received and understood about the property remains accurate, including
charges and encumbrances
Not to be confused with the pre-contract searches
73
Q
Pre-completion
What is the benefit of performing a search with priority?
A
Prevents any new charges from being registered that would impact the buyer or mortgagee’s
rights
74
Q
Pre-completion
Regarding registered property, what search begins the priority period to complete registration
at HLMR free from third party interests?
How long does this priority period last?
A
 OS1 search (against full property)
 OS2 search (against part of the property)
The priority period is 30 working days
Q
75
Pre-completion
Regarding unregistered property, what pre-completion searches are carried out?
How long does this priority period last?
A
Repeat the pre-exchange full land charges search against the full names of the landowner/seller
for the full period of their ownership
15 working days
76
Q
Completion
What are the three methods by which completion can take place?
What should these not be confused with?
A
1.Personal attendance
2.Agent
3.Post (most common)
Not to be confused with the three Ps by which exchange can occur: person, post, phone.
Q
77
Completion
What are the main steps required of the solicitors upon completion under the Code of Completion
by Post?
A
Buyer’s solicitor:
* Sends completion money by bank transfer
Seller’s solicitor:
* Acts as agent for the buyer’s solicitor (dating and executing the transfer document, etc.)
* Notifies buyer immediately after becoming aware completion money has been received
* Completes the transfer documents upon receipt of completion money
* Confirms when completion has taken place and notifies the keyholder to release the keys to the
buyer
The latest time the seller’s solicitor can notify the buyer’s solicitor that completion has taken
place is the end of working day following completion
78
Q
Completion
What does merger on completion mean and what does it mean for the buyer?
A
On completion, the contract merges with the purchase deed, meaning the buyer can no longer
sue on contract terms (unless the contract provides it will not merge on completion)
Q
79
Post-completition
Within what time of completion must the buyer’s solicitor send the Stamp Duty Land Tax Form
and pay tax?
A
Within 14 days of completion, even if no tax is payable
Q
Post-completition
80
What are the main steps required of the solicitors if the transaction was an assignment of an
existing lease?
A
Seller’s solicitor:
* Send buyer’s solicitor the original lease and licence to assign
* Prepare final service charge adjustment
Buyer’s solicitor:
* Arrange payment of SDLT
* Serve notice of the assignment and any new mortgages on the landlord
* Register transfer of lease, and any new mortgages at HMLR
81
Q
Post-completition
What is the effect of first registration on the title deeds?
A
They no longer have legal effect
82
Q
Delayed completion and remedies
What remedies are available to the buyer if any plan or statement in the contract was misleading
or inaccurate?
Also available to either party for any breach, i.e not completing
When is option 2 only available?
A
1.Damages
2.Rescission
Rescission only available if error or omission was fraudulent or reckless, or the property
was substantially different from what the buyer thought they were getting (to their
detriment)
83
Q
Delayed completion and remedies
Where there was an error or omission, or misleading statement, only when is rescission available
to a buyer?
A
 Error or omission was fraudulent or reckless
 Property was substantially differentfrom what the buyer thought they were
getting (to their detriment)
 Landlord’s consent to assign not forthcoming
84
Q
Delayed completion and remedies
What is the only circumstance where delay will give the innocent party the right to rescind the
contract outright?
What is required for this in a residential property context?
A
Only where time was of the essence
In a residential property context, that time is of the essence must be specified as a special
condition in the contract
85
Q
Delayed completion and remedies
Even if time is not of the essence, what does any delay in completion, however minimal, give rise
to?
What is this calculated based on?
A
Damages in the form of an interest penalty
Calculated based on the purchase money outstanding, i.e. purchase price minus deposit
86
Q
Delayed completion and remedies
As long as they notify the delaying party, what other option instead of damages is available to
an innocent buyer where there is a tenant in situ in the property?
A
They can elect to take the rental income instead of the interest
Q
Delayed completion and remedies
87
Where completion is delayed and time is not of the essence, what must the innocent party serve
on the breaching party if they want to set the ball in motion toward being able to cancel the
contract?
What is the effect of this?
A
A notice to complete
It makes time of the essence
Q
88
Delayed completion and remedies
From what point can a notice to complete be served, and what three things must be true of the
party serving?
What is a notice to complete not available?
A
Any time after completion was due but not afterit has taken place, and innocent party must
be ready, able, and willing to complete
When completion has already occurred
Q
89
Delayed completion and remedies
After service of a notice to complete, how long does the delaying party have to complete?
A
Ten working days
90
Q
Delayed completion and remedies
Upon receiving a notice to complete, what must the buyer do if they have negotiated and paid a
deposit lower than 10% to the seller?
A
Advance enough funds such that 10% of the purchase price has been paid over
91
Q
Delayed completion and remedies
What are the both parties’ options when the other does not comply with a notice to complete?
What one additional option does the seller have?
A
1.Rescind the contract
2.Retain deposit if seller or reclaim deposit if buyer
3.Claim damages
Seller also has the option to resell the property
92
Q
Delayed completion and remedies
What is the function of damages for each party in this situation?
A
To put them in the position they would have been in if the other party perfomed
Q
93
Delayed completion and remedies
Pre-completion, where a seller is claiming damages from a buyer, what is the limit on what can
be claimed, and what is the effect of this?
A
Difference in value between contract price and value on resale, so if the resale value is higher, a
claim for damages against the original buyer will not be available
94
Q
Security of tenure for commercial tenants
What is the statutory protection given to commercial tenants under the Landlord and Tenant Act
1954?
A
Tenant does not have to vacate their property at the end of a contractual lease, unless the
landlord uses one of the statutory methods of terminating the lease
Q
95
Security of tenure for commercial tenants
What are the four ways a tenancy protected by the 1954 Act can be terminated?
A
1.Forfeiture by the landlord
2.Surrender by both parties
3.Landlord serves a valid section 25 notice (to terminate lease or suggest new lease),
or
4.Tenant serves a valid section 26 notice(to request a new lease)
96
Q
Security of tenure for commercial tenants
What are three types of tenancy to which the 1954 Act does not apply?
A
1.Fixed term tenancy not exceeding six months
2.Employee in property of employer
3.Contracted out tenancy
97
Q
Security of tenure for commercial tenants
What are the three statutory requirements for a landlord to contract out of the 1954 Act?
A
1.Health warning from landlord
2.Declaration from tenant
3.Reference in the lease
98
Q
Security of tenure for commercial tenants
What three things does a health warning explain?
How long before the tenant completes the lease must it be given by the landlord?
A
A health warning explains:
1. What security of tenure is
2. That the tenant will be giving up these rights, and
3. That they should seek professional advice
14 days, unless waived by tenant by signing a statutory declaration in front of an independent
solicitor
99
Q
Security of tenure for commercial tenants
What two things must the tenant’s declaration in response to the health warning confirm?
Not the one waiving the 14 day period, if relevant
A
Tenant confirms they:
1.Have received the health warning
2.Agree to contracting out and to the consequences
Q
Security of tenure for commercial tenants
100
When are section 25 and section 26 notices relevant?
A
When the tenancy was not contracted out of the 1954 Act
101
Q
Security of tenure for commercial tenants
What is a section 25 notice?
When must it be served?
A
A notice sent by the landlord informing the tenant that they require the premises back at the
end of the term, or that they wish to enter into a new lease with the tenant
Served between six and twelve months before they wish the tenancy to end
Q
102
Security of tenure for commercial tenants
What are the five statutory grounds, one of which must be contained in a section 25 notice?
One of which concerns tenant fault and four of which do not
What is the impact of the discretionary grounds?
A
Discretionary:
- Breach of obligation (failure to repair, persistent delay in paying rent, or other substantial
breach (tenant fault)
- Landlord requires whole premises (if tenant only rents part) (no tenant fault)
Not discretionary (all no tenant fault):
 Has suitable alternative premises for the tenant
 Intends to demolish or reconstruct premises which cannot be done with tenant in
occupation
 Intends to occupy premises himself
Even if landlord argues and proves a discretionary ground, the court still has discretion to order a
new tenancy
103
Q
Security of tenure for commercial tenants
What is a section 26 notice?
When must it be served?
A
A notice sent by the tenant requesting a new lease
Served between six and twelve months before they wish the tenancy to end
Q
104
Security of tenure for commercial tenants
After receiving a section 26 notice, how long does the landlord have to inform the tenant if they
intend to oppose the request?
What must a landlord do in response to a section 26 notice if they are unwilling to agree to a
new lease?
A
Two months
If unwilling to agree to a new lease, landlord must justify their refusal by reference to one of the
statutory grounds they would be able to use for their own section 25 notice
105
Q
Security of tenure for commercial tenants
What is a tenant entitled to if a landlord quits the lease using a no-fault ground?
Why is the tenant not entitled to this where there is alternative premises?
A
Compensation, on the basis that they have not done anything wrong
Because they will not have suffered any loss
106
Q
Security of tenure for commercial tenants
What determines how compensation is computed when a tenant is entitled upon to termination
due to a no-fault ground?
A
Whether the tenant has been in occupation for 14 years or less
107
Q
Security of tenure for commercial tenants
How is compensation calculated when the tenant has been in occupation for (1) less than 14
years and (2) at least 14 years?
What can the 14 year period be made up of?
A
1.The ratable value of the premises, i.e. one year’s rent
2.Twice the ratable value of the premises
If the tenant took over the business from someone and their combined tenancy is 14 years, it will
count
108
Q
Security of tenure for commercial tenants
In a section 25 or 26 situation, what is the maximum length a court will order the new lease to
be where the lease itself is silent as to term?
A
15 years
Q
1
Execution of wills
What two things must a person have and what one thing must they do to make a will?
A
Have:
1.Capacity at the time the will was made, and
2.Intention to make a will
and
Execute the will in accordance with the required formalities.
2
Q
Execution of wills
Who has the burden of proving a testator did not have mental capacity, and what is the statutory
test for this?
A
The person alleging the testator lacked capacity must show at the material time, the person
is unable to make a decision for themselvesbecause of an impairment or
disturbance in functioning of the mind
3
Q
Execution of wills
What is the statutory test a reiteration of and what three things did this require the testator to
understand at the time of execution?
A
The common law test, which required the testator to understand:
1.The nature of the act of making a will
2.The extent of their property, and
3.The claims which they ought to give effect to even if they subsequently do not
4
Q
Execution of wills
In most cases, when is the material time?
A
When the testator signs the will
5
Q
Execution of wills
What is the exception to the rule that the material time is when the testator signs the will?
A
If the testator did not have mental capacity at execution, but did when giving instructions to the
drafter, the testator will be deemed to have acted with capacity if:
1.The will was prepared in accordance with the instructions, and
2.At execution, the testator at least understood they were signing a will for which
instructions had previously been given
6
Q
Execution of wills
What two things are required to satisfy the intention to make a will?
A
Testator must have:
1.General intent to make a will, and
2.Specific intent to make that particular will, i.e. they knew and approved of the
contents
7
Q
Execution of wills
Who has the burden of showing the testator did not have intention, and how might they show
this?
A
The person challenging their intention, and they may do so by showing the testator acted due to
fear, fraud, undue influence, or mistake
8
Q
Execution of wills
In what three circumstances does the presumption that if the testator acted with capacity, they
had specific intent not apply?
A
1.Testator is blind or illiterate
2.Will is signed on testator’s behalf
3.Suspicious circumstances where the will drafter substantially benefits from the will
9
Q
Execution of wills
What is required for a gift in the third situation, suspicious circumstances where will drafter
benefits, for the gift to not fail?
A
Evidence of testator’s specific intent must be put forward by the person claiming the gift
10
Q
Execution of wills
What is required for a will that has been made under duress, i.e. as a result of force and fear, to
be valid?
A
Court must pronounce that it is valid, and issue a grant in solemn form
11
Q
Execution of wills
What can occur where an omission from a will is made under duress?
A
The disappointed beneficiary can be entitled to the gift on the basis of the earlier will.
Duress is deemed to invalidate the revocation and the new will is read in line with that earlier
valid provision.
12
Q
Execution of wills
What are the three formalities for a valid will?
A
1.In writing
2.Signed by the testator (or some person in T’s presence and at T’s direction such that it
is clear T intended to give effect to the will)
3.Signed by two witnesses each in the presence of the testator, but not necessarily in
each other’s presence (or their previous signature is acknowledged in T’s presence)
13
Q
Execution of wills
What is an attestation clause and what is required if one is missing?
A
A signed clause confirming the formalities have been met. If one is not provided, the proponent
of the will (i.e. the person offering it into probate)must provide proof these formalities were
followed
Q
14
Execution of wills
In what situation is a special attestation clause required, and what must it show?
A
A special attestation clause is required where the testator is illiterate, and it must show that the
will was read to T and he understood and approved the contents, i.e. he had the specific intent
to make that particular will
15
Q
Execution of wills
In a situation where someone signs the will on the testator’s behalf, is the will invalid if this
person is also a witness?
A
No
16
Q
Execution of wills
What are the two requirements where someone signs the will on the testator’s behalf?
A
1.Testator must be present when signature is made
2.Testator must indicate to the witness that the signature has been put there at his
request
Q
17
Execution of wills
Do the witnesses need to see the contents of the will or know that the testator is signing a will?
A
No
18
Q
Execution of wills
For a document to be incorporated by reference into a will, what two requirements must be met?
A
1.Document must exist at the date of the will
2.Document must be referred to in the will
Documents expressed to be created after the fact, e.g. lists of items, or subsequent references in
diaries, will not be included
19
Q
Alteration, amendment, and revocation of wills
When will a general alteration be valid?
A
If it can be proved it was made before execution, provided that the will reads naturally
Q
20
Alteration, amendment, and revocation of wills
What is the situation where a will has words crossed out and it can’t be proved that the
alteration occurred before execution or that it was made with the same formalities as
the will, i.e. writing signed and witnessed?
A
The original gift applies
21
Q
Alteration, amendment, and revocation of wills
What is the presumption given to unattested alterations?
A
They are presumed to have been made after execution, unless merely filling in a blank space in a
will form
22
Q
Alteration, amendment, and revocation of wills
What is a codicil?
A
Brief document that adds to, amends, or partially revokes an executed will
Can be used to remedy a gift which was void because the beneficiary witnessed the will
23
Q
Alteration, amendment, and revocation of wills
What are the three requirements of a codicil?
A
1.Must make reference to the will
2.Must satisfy the formalities of a will, i.e. writing signed and witnessed
3.Clause should be included confirming the unamended part of the will
24
Q
Alteration, amendment, and revocation of wills
What are the two ways a revocation of a will can occur?
A
1.By law
2.Deliberate act of the testator
25
Q
Alteration, amendment, and revocation of wills
What are the two situations in which a will is revoked by law?
A
1.Marriage/civil partnership
2.Divorce, nullity, or dissolution
26
Q
Alteration, amendment, and revocation of wills
What is the effect of a testator marrying after executing a will?
A
The will is revoked unless it appears, from the will, that the testator was expecting to marry a
particular person and they intended that all or part of the will should not be revoked by that
marriage
27
Q
Alteration, amendment, and revocation of wills
What is the effect of divorce, nullity, or dissolution on a will?
A
Will is partly revoked as to the appointments/gifts to the former spouse/civil partner as they are
treated as having died on the date of divorce/dissolution
The remainder of the will is valid
28
Q
Alteration, amendment, and revocation of wills
What gift provisions in a will will be relevant upon divorce/dissolution, and why?
A
Substitutional gifts conditional upon the spouse/civil partner predeceasing the testator, because
they are deemed to have done so
29
Q
Alteration, amendment, and revocation of wills
What is required to exempt a will from these divorce/dissolution rules?
A
Contrary intention expressed in the will
30
Q
Alteration, amendment, and revocation of wills
When can a will be revoked?
A
At any time before the testator’s death
31
Q
Alteration, amendment, and revocation of wills
What are the two ways a testator can revoke a will through deliberate act?
A
1.Executing a later will/codicil
2.Destruction
Q
32
Alteration, amendment, and revocation of wills
What is the extent to which a later will/codicil will revoke an earlier will?
A
Only to the extent that it is inconsistent with or merely repeats the terms of the earlier will
Q
Alteration, amendment, and revocation of wills
33
How is a will revoked by destruction?
A
Burning, tearing, or otherwise destroying the will by the testator (or someone at T’s direction and
in their presence) with the intention of revoking the will
34
Q
Alteration, amendment, and revocation of wills
What is the situation if only part of a will is destroyed?
A
Whether or not the will is fully revoked, or only revoked to the extent of the part that was
destroyed will depend on the importance of the part which was destroyed, e.g. the signature
page being destroyed will revoke the entire will if intent to revoke is evident
Q
35
Alteration, amendment, and revocation of wills
Regarding intention to revoke, what is the presumption if a will is found mutilated at the date
of death?
A
It is rebuttably presumed to have been revoked with the testator’s intent
Q
Alteration, amendment, and revocation of wills
36
What is the other situation where a will is rebuttably presumed to have been revoked?
A
Where a will was last known to be in the testator’s possession, but cannot be found at the date
of death
37
Q
Alteration, amendment, and revocation of wills
How does the court-applied doctrine of dependent relative revocation save a will?
A
If the testator’s intention to revoke the will was conditional on a future event, and the event did
not take place, the original will, even if destroyed,may be valid if it can be reconstructed
38
Q
Alteration, amendment, and revocation of wills
What are mutual wills?
A
Where two or more people make wills with the same clauses conferring reciprocal
benefits, further to an agreement between them to make such wills and not revoke them
without the consent of the other
Q
Alteration, amendment, and revocation of wills
39
What is the effect of a mutual will conferring a constructive trust in favour of the other party?
A
If one testator dies, and the other changes their will, a beneficiary harmed by this can apply to
court for an order that the recipient of the changed gift transfers it to the original beneficiary
40
Q
Interpretation of wills
Unless a contrary intention is shown in the will, when are gifts in wills treated as being given, and
what is the general meaning of this?
A
The moment of death, which means that a gift is generally treated as being of the object the
testator has on their death
41
Q
Interpretation of wills
What wording will indicate that the gift is of the object the testator has when the will was
made?
A
My before an individual object, e.g. my car, or my watch
If that specific item is not in the estate, the gift adeems. This is avoided by use of the words the
car/watch I own on my death
42
Q
Interpretation of wills
As of when are the beneficiaries in a will determined?
A
The date of execution, subject to class closing rules
Q
43
Interpretation of wills
What is a specific legacy?
A
A gift of a specified part of the estate, e.g myBMW car with registration ABC1234
Q
44
Interpretation of wills
What is a general legacy?
A
A gift of a generic item which does not identify a particular item, e.g. a BMW car
Q
Interpretation of wills
45
What occurs if the item described in the general legacy is not in the estate?
A
The beneficiary can require the executors to purchase the item if there is sufficient funds
46
Q
Interpretation of wills
What is a pecuniary legacy?
A
A gift of cash
47
Q
Interpretation of wills
What are the two ways gifts can fail?
A
1.Ademption
2.Lapse
48
Q
Interpretation of wills
Under the doctrine of ademption, in what three situations will a specific gift adeem?
A
1.No longer part of the testator’s estate
2.Subject to a binding contract for sale
3.No longer meets the description in the will
Only applies to specific legacies. Does not apply to general legacies
49
Q
Interpretation of wills
Whilst a change in the substance of the subject matter will cause a gift to adeem, what will not?
A
A mere change in name or form
Example:
 Shares in ABC plc which change in form due to a corporate restructuring but the shares
are still in ABC plc: gift does not adeem
 Shares in ABC plc which goes into liquidation and is taken over by XYZ plc, and
shareholders receive new shares in XYZ plc: gift adeems as the substance is
different
Q
50
Interpretation of wills
When will a gift fail by lapse?
A
If the beneficiary predeceases the testator
51
Q
Interpretation of wills
What will prevent a gift from failing by lapse?
A
A substitutional gift in the will accounting for the situation where the beneficiary predeceased the
testator
Q
52
Interpretation of wills
What happens where there is no substitutional gift?
A
The gift falls into the residue
Q
53
Interpretation of wills
What happens if a residual gift lapses?
A
It passes under the rules of intestacy
Q
Interpretation of wills
54
Regarding objects, i.e. people, what is the exception to the general rule that the will is construed
at the date of death?
A
Will is construed at date of execution, as to objects, e.g.:
A gift of “all my shares in ABC plc to the eldest son of John” is a gift of however many shares the
testator had at the date of death to whoever the eldest son of John was at the date of
execution
Q
55
Interpretation of wills
Where a gift is to two or more people as joint tenants, i.e. jointly, what is required for the gift
to lapse?
A
All joint tenants must predecease the testator. If not, the gift passes to the surviving tenants in
proportionate shares.
This does not apply where a gift is simply split and given in equal shares. It has to be
joint. Think right of survivorship
Q
56
Interpretation of wills
What is the special rule where a gift is made to a testator’s child or other lineal descendant,
e.g. grandchild, and the beneficiary child or descendant predeceases the testator?
A
The gift will pass to the issue of the beneficiary if they are living, and unless a contrary intention
is shown, it will occur per stirpes.
Note this only applies where a testator gives a gift to their issue or lineal descendant who:
(1) Predeceases the testator and
(2) Leaves living issue of their own.
It does not apply to gifts to parties who aren’t issue or lineal descendants.
57
Q
Interpretation of wills
A gift to a beneficiary will fail if the beneficiary or their spouse/civil partner witness the will. Does
this invalidate the entire will?
A
No, just the gift to the beneficiary witness fails
Q
58
Interpretation of wills
In what situation will a gift to a beneficiary not fail where that beneficiary witnesses the will, and
why?
A
Where there are at least two other witnesses who are not beneficiaries or spouse/civil partner,
because the formal requirement that a will have two witnesses will be satisfied irrespective of the
beneficiary acting as a subsequent witness
59
Q
Interpretation of wills
What two groups does a gift to children apply to, and what one does it not?
A
Applies to:
1.Natural children
2.Adopted children
But not stepchildren, unless adopted.
Q
60
Interpretation of wills
When will a class normally close?
A
When at least one beneficiary has a vested interest, to the exclusion of any potential
beneficiary not then living
Q
61
Interpretation of wills
If a class closes, do beneficiaries who have not satisfied their contingency still qualify?
A
Yes, as long as they are living when the class closes
Q
62
Interpretation of wills
Why does the inclusion of the word each ofchange the effect of the class closing rules?
A
The class closing rules operate to close a class off so that the pool of assets can be divided up
among vested and contingent holders, and of course paid to vested beneficiaries immediately.
E.g. “£5,000 to the children of John” requires those beneficiaries to be determined to know how
many ways to divide the total pool of £5,000.
Whereas, “£5,000 to each of the children of John” does not require the class to close at all to
determine how much each will receive. Each will receive the £5,000.
Q
63
Interpretation of wills
However, in the absence of a provision to the contrary, where each of is used, when does the
class close?
A
At the testator’s death, and if there are no class members eligible, the gift will fail and not
continue until the at least one class member is eligible
Q
Interpretation of wills
64
How can the class closing rules be excluded?
A
By an express provision in the will
65
Q
Intestacy
In what two situations will the rules of intestacy apply?
A
1.Deceased died without making a will, or at least a valid will
2.Deceased’s will does not dispose of all of their property
66
Q
Intestacy
For a spouse to receive their beneficial entitlement, for how long must they survive the
deceased?
A
28 days
Q
67
Intestacy
What is the spouse’s entitlement where there are no issue, i.e. children?
A
The entire estate
68
Q
Intestacy
What are the spouse’s three entitlements where there are issue?
A
 Personal chattels
 £322,000
 Half the residue absolutely
The issue split the other half of the residue
Q
69
Intestacy
What is a spouse with issue’s other option with regard to the matrimonial home?
A
They can opt to take the matrimonial home (or deceased’s interest in it if they were tenants in
common) in satisfaction of their entitlement to the three things in the previous card (chattels,
322k, half the residue), and the children will take the residue (after IHT)
If the property is worth more than the entitlement, the spouse must pay this equality money to
the estate
Q
Intestacy
70
What is the list of eight beneficiaries who will take intestate property if there is no spouse, and
how is this dealt with?
A
As soon as a beneficiary falling a category in the below list is identified, subsequent beneficiaries
are ignored:
1.Issue of the intestate
2.Parents (equally if both alive)
3.Full brothers or sisters
4.Half brothers and sisters
5.Grandparents (equally if both alive)
6.Full uncles and aunts
7.Half uncles and aunts
8.The Crown as bona vacantia
71
Q
Intestacy
How will members of a class of beneficiaries take their share, and what are the two conditions,
one of which is required?
A
They will take their shares equally, as long as they:
1.Reach 18, or
2.Marry before 18
72
Q
Intestacy
Except for parents and grandparent beneficiaries who take equally, what does it mean for the
rest of the beneficiaries to take per stirpes?
A
It means that they beneficiaries assume the share through the root
Q
73
Intestacy
What happens if a potential beneficiary (i.e. a beneficiary with a contingent interest) who was
living at the intestate’s death, dies before their interest vests?
A
Their issue take the deceased parent’s share
Q
74
Intestacy
What happens if a potential beneficiary (i.e. a beneficiary with a contingent interest) who was
living at the intestate’s death, dies before their interest vests, but they have no issue?
A
The estate will be administered as if that beneficiary has never existed
75
Q
Intestacy
For the purposes of intestacy, who are deemed to be an adopted child’s parents?
A
The adoptive parents. Not the natural parents.
76
Q
Intestacy
Although the intestacy rules apply whether or not an individual’s parents were married, what
does the law presume if a person dies intestate and their parents were never married?
A
The law presumes that the father has predeceased the intestate child, unless there is evidence to
the contrary or the father is on the birth certificate
Q
77
Property passing outside the will and/or intestacy
Can the following rules be varied by the terms of the will?
A
No
Q
78
Property passing outside the will and/or intestacy
What are the six categories of property that do not form part of the deceased’s estate?
A
1.Property owned as beneficial joint tenant (remember IHT still payable)
2.Life assurance policies
3.Pension scheme death benefits
4.Nominated property in savings schemes (max £5k)
5.Life interests in trust property (passes according to that trust)
6.Gifts where donor has received a benefit
79
Q
Property passing outside the will and/or intestacy
Why do life interests not pass under intestacy?
A
Because a life interest vests in the remainderman upon the death of the life interest holder
Q
80
Property passing outside the will and/or intestacy
Even though property owned under a joint tenancy, life interests in trust property, and gifts with
reservation of benefit do not form part of the estate for succession purposes, for what purposes
are they considered part of the estate?
A
IHT
81
Q
PRs
What two groups of people does the term personal representative include?
A
 Executors
 Administrators (intestate estates)
82
Q
PRs
Although anyone can be named as an executor, what is it advisable to ensure?
A
That they are willing and able to take up the position
83
Q
PRs
Whilst they can be named an executor, what two groups will not be granted probate?
A
1.Minors
2.Mental incapacity
Q
84
PRs
Why does dissolution of a marriage render the appointment of a spouse ineffective?
A
Because the spouse is deemed to have died on the day of dissolution, unless a contrary intention
is included in the will
Q
85
PRs
Until when is a person free to renounce their right to a grant of probate?
A
Until they have accepted office or otherwise intermeddled in the estate
Q
86
PRs
How does an executor accept office?
A
By either taking a grant of probate or intermeddling in the estate
Q
87
PRs
What is intermeddling in the estate?
A
Anything which shows an intention to accept office, even notifying a deceased’s bank of the
death
88
Q
PRs
What are the four requirements to renounce?
A
1.In writing
2.Signed by executor
3.Contain statement they have not intermeddled
4.Signed by a disinterested witness
89
Q
PRs
What does it mean that renunciation is all or nothing?
A
An executor cannot renounce part of the office, it must be all, or he must accept the
appointment
Q
90
PRs
Once renounced, what cannot be reclaimed without court permission?
A
The right to probate, i.e. can’t restart the appointment of executor
Q
91
PRs
Does an executor renouncing their position as executor have any bearing on their position as
trustee, if they also hold one?
A
No
Q
92
PRs
Instead of renouncing, the executor can have power reserved. What does this mean?
A
They will not be involved for now, but if circumstances change, e.g. another executor dies or
renounces themselves, the executor who reserved power can apply for a grant of probate at a
later stage
Q
93
PRs
Does the reserved power apply automatically, and what is the significance of this?
A
No, an application must be made to court.
Therefore, this is essentially a meaningless procedure, since an executor who renounces can
always apply to the court after renouncing. The change of circumstances would merely be
grounds to support the application.
94
Q
Grants of representation
What is a grant of representation?
A
A conclusive court document, authorising the deceased’s personal representatives to deal with
the estate and transfer assets to the beneficiaries
Q
95
Grants of representation
In a non-contentious case, what is the monetary threshold which must not be exceeded for
property in a savings scheme to be capable of being obtained (at the institution’s
discretion)with just a death certificate, i.e. grant of administration not needed?
A
£5,000.
Note this is the same amount from the same source that will pass via intestacy to a chosen
beneficiary in an intestate situation.
96
Q
Grants of representation
What else can be sold with just the production of a death certificate, without requiring a grant of
administration or providing the right to sell?
A
Chattels
97
Q
Grants of representation
If the personal representatives of an estate hires a solicitor, who is the client?
A
The PRs
98
Q
Grants of representation
What are the four types of grant?
A
1.Probate
2.Letters of administration with will annexed
3.Letters of administration
4.Grant de bonis non
Q
Grants of representation
99
When is grant of probate obtained, and only to whom can it be made?
A
A grant of probate is obtained when the deceased left a valid will and it can only be made to
the executors
100
Q
Grants of representation
What are the minimum and maximum amount of executors that can obtain a grant of probate?
A
One, and four
101
Q
Grants of representation
To whom is notice of a grant of probate generally given?
A
Any executors for whom power is being reserved
Q
102
Grants of representation
When is an application for letters of administration with the will annexed made?
A
When there is a valid will, but some problem concerning the appointment of executors
103
Q
Grants of representation
What are three of the reasons for which a letters of administration with the will annexed may be
needed?
A
1.Appointment of executor not correctly drafted
2.Will is valid, but deceased did not appoint an executor
3.Executor died before the deceased, renounced, or is unable (minor/incapable) or
unwilling to act
104
Q
Grants of representation
What is the order of entitlement to a grant of letters of administration with the will annexed?
A
1.Trustee of residuary estate, if any
2.Residuary beneficiary or their PRs, with vested having priority over contingent
3.Any other beneficiary or creditor, or their PRs
Q
Grants of representation
105
In what situation will a beneficiary not be entitled to apply for a grant of letters of administration
with the will annexed?
A
If the gift fails due to the beneficiary or their spouse witnessing the will.
However, they can still apply in a different capacity, e.g. as a person entitled on partial intestacy.
Q
106
Grants of representation
What is the minimum number of administrators required where there is a minor beneficiary, or
life interest under the will?
A
Two
Q
107
Grants of representation
In contrast to executors under probate, in a letters with will annexed situation, what will not
cause the right to renounce to be lost, and why?
A
Intermeddling in the estate, because there are creases to be ironed out with regard to how the
estate should be administered, so it is not possible for a role to crystallise by intermeddling
Q
108
Grants of representation
What is meant by a person applying for letters of administration with the will annexed to clear
off?
A
It means that in the application, the person applying has accounted for those having
a superior right to the grant, e.g. by confirming their disinterest or renunciation
109
Q
Grants of representation
When is an application for just letters of administration made?
A
If the deceased dies intestate or leaves a will but all the gifts have failed
110
Q
Grants of representation
What is the order of entitlement for letters of administration?
A
Broadly the same order as for intestacy, but also including issue of parties if party has
predeceased
Q
Grants of representation
111
What is the right to letters of administration of a PR representing someone with an entitlement to
a grant?
A
The same as the person they represent
112
Q
Grants of representation
However, unless the spouse was beneficially entitled to the estate, who has priority over
the PRs of a surviving spouse who died before obtaining a grant?
A
All relatives in the order of entitlement, i.e. issue down to half uncles/aunts
113
Q
Grants of representation
For letters of administration, what is the minimum number of administrators required (1)
generally, and (2) where there is a minor beneficiary or life interest under the will, and what is
the maximum number of administrators?
A
1.One
2.Two
3.Four
114
Q
Grants of representation
What is a grant de bonis non and to whom is it granted?
A
A second grant made to allow the completion of the administration of the deceased’s estate
following the death of the sole or last surviving PR, and is granted to the person who would
have been entitled had the original PR never taken the grant
Q
115
Grants of representation
What is the exception to this where a grant de bonis non will not be required, and logically when
does this not apply, and why?
A
In a chain of representation situation, where the sole or last surviving executor dies and that
executor’s executor takes a grant of probate, the executor of estate B will automatically take
over the execution of estate A. They are not able to refuse this.
Logically this cannot apply where the deceased in estate A dies intestate, because there is no
executor in this situation. There is an administrator and this exception will not apply, so
a grant de bonis non will be needed.
Q
116
Grants of representation
In relation to all grants, what occurs where one of the executors/administrators is a minor and
there are other executors/administrators?
A
The grant is made to the adult PRs, with power reserved for the minor in the case of a grant of
probate
117
Q
Grants of representation
In relation to all grants, what occurs where the sole or last surviving PR is a minor?
A
A limited grant of letters of administration is made to the minor’s parent or guardian for the use
and benefit of the minor until aged 18
118
Q
Pre-grant procedure
What must be paid by the PRs before a grant can be obtained?
A
IHT
Q
119
Pre-grant procedure
What is the voluntary scheme banks and institutions can agree to concerning release of estate
funds?
A
In their discretion, the deceased’s bank can release the money owed to HMRC to satisfy the
inheritance tax before a grant
120
Q
Applying to the court
What must be included in an application for a grant of probate, or letters with will annexed?
A
 Two copies of the will
 Official copy of death certificate
 Tax form indicating either IHT was paid or it was not payable
 Probate court fees
Same for letters of administration, but obviously no will required
Q
121
Applying to the court
What is required if the application includes the will, but the will does not have an attestation
clause?
A
Affidavit of due execution from a witness to the will or other person present when the will was
executed
Q
Applying to the court
122
What is required if the application includes the will, but the will has obliterations, interlineations
or other alterations?
A
Affidavit confirming whether these existed at the date of execution
Q
123
Applying to the court
In order to apply for letters of administration, what must the applicant have?
I.e. letters of administration, where there is no will
A
A beneficial interest under the intestacy rules
Q
124
Applying to the court
When is a caveat used and what is the effect?
A
When a beneficiary believes the will may be invalid.
It puts the administration on hold and is valid for up to six months.
Q
Applying to the court
125
When is a citation to take probate used?
A
When an executor has lost their right to renounce due to intermeddling, but has not applied for a
grant and does not intend to do so
126
Q
Applying to the court
What must the executor in question do once cited, and what occurs if they refuse?
A
They must make an application for a grant of probate, and if they fail to do so, the citor can
apply for a court order allowing the executor to be passed over
127
Q
Applying to the court
What is a citation to accept or refuse a grantused for?
A
To clear off a person with a prior right to any type of grant who has not applied and shows no
intention of applying
Q
128
Applying to the court
What occurs if after a citation to accept or refuse a grant, the cited person still refuses?
A
A grant may be issued to the citor
129
Q
Dealing with HMRC
Within how long after the end of the month of the deceased’s death must PRs deliver an account
to HMRC?
A
12 months
However, interest accrues from six months on IHT owed
130
Q
Dealing with HMRC
What is the discount in the market value for tax purposes offered by HMRC in the case of coowned (1) residential property and (2) investment property, in recognition of the difficulty in
selling a part interest in land?
A
1.15% for residential
2.10% for investment
Not available when the co-owner is the deceased’s spouse/civil partner
Q
Dealing with HMRC
131
What is a small estate?
A
An estate which does not exceed the nil-rate band of £325k
Exempt from IHT and no formal account is necessary
132
Q
Dealing with HMRC
What is an exempt estate?
A
An estate worth less than £3 million where the net chargeable estate does not exceed the nil-rate
band of £325k
Does not apply if over £100k in foreign assets
Net chargeable estate is the value after deducting liabilities, and spouse and charity exemptions
133
Q
Dealing with HMRC
To what extent only is the UK estate of a non-UK domiciliary excepted?
A
If their UK estate consists solely of cash or quoted shares not exceeding £150k
134
Q
Dealing with HMRC
How much must the deceased have given away in the last 7 years before they died for their
estate to not be excepted, where it otherwise would be?
A
Over £250k
135
Q
PR duties
What must PRs do?
A
Take reasonable steps to preserve the deceased’s estate and reaslise on any investments
Q
136
PR duties
What is the duty of care which applies to PRs in addition to trustees, and what is this in addition
to?
A
PRs must act with reasonable care and skilltaking into account any specialist knowledge,
in addition to the fundamental duties to act in the best interest of beneficiaries
Q
PR duties
137
The PRs’ liability for what will typically be excluded in a will?
A
Breach of duty of care
138
Q
PR duties
Is a PR liable for loss from a fellow PR’s breach of duty?
A
Not unless PR was negligent in allowing the breaching PR to engage in the conduct which led to
the breach
Q
139
PR duties
What must the court be satisfied of before it can, at its discretion, relieve a PR from liability for
breach of any duty?
A
That the PR acted honestly and reasonablyand ought fairly to be excused
Same as with trustees
Q
Administrative powers of PRs
140
On to Administrative powers of personal representatives:
What are the nine powers a PR has?
A
Power to:
1.Sell, mortgage, or lease estate property
2.Appropriate
3.Accept receipt for a minor’s property
4.Insure
5.Delegate
6.Reimburse themselves for expenses
7.Invest (same as with trusts)
8.Maintain a minor (same as with trusts)
9.Advance capital (same as with trusts)
Q
141
Administrative powers of PRs
What is appropriation?
A
The use of an asset to satisfy a legacy/interest in the estate, provided the beneficiary
consents(unless consent expressly not required in will)and no specific beneficiary is affected
Q
Administrative powers of PRs
142
Can PRs carry on a sole trade business of the deceased?
A
Not unless the will provides for it
143
Q
Administrative powers of PRs
In what circumstance only is a PR liable for the act or omission of an agent to whom they have
delegated?
A
If they fail to use reasonable care appointing the agent
Q
144
Administrative powers of PRs
Whilst PRs can invest in most things, what two standard investment criteria must be met?
A
Investment is:
1. Suitable for the estate
2. Diversified
Q
Administrative powers of PRs
145
As they apply automatically under the Trustee Act when a gift with the right to receive income is
made to a minor, what is required to override the provisions regarding maintaining a minor?
Maintenance, education, benefit
A
An express provision in the will
Q
146
Administrative powers of PRs
What discretionary power do PRs have if the estate includes a gift to a minor and the gift
includes the right of the minor to receive income?
A
The trustees can decide to use this income for the minor’s maintenance, education,
or benefit until the minor turns 18
Use means directly apply toward, not pay to the minor
If not used, PRs must accumulate for the minor until 18, where it is added to the capital. Even if
contingent, entitled to income after 18
Q
147
Administrative powers of PRs
What is the minor’s entitlement upon turning 18, if they still have a contingent interest?
A
They are entitled to income arising after their 18th birthday only, but income accumulated before
and not used to maintain accrues to the capital of the trust
148
Q
Administrative powers of PRs
To whom may PRs advance funds, what is the amount they may be advanced, and who must
consent?
A
Anyone with a vested or contigent interest in the capital of the estate can be advanced up to
their entire presumptive share, subject to the consent of anyone with a life interest in the
estate
Entitlement is half of share if trust before October 2014
A life interest holder’s consent is needed because their income is based off the value of the
estate which the PRs seek to reduce by advancing
149
Q
Administrative powers of PRs
What interests give an interest in income, and which give an interest in capital?
A
 Interest in income comes from vested or contingent, but not remainder interest
 Interest in capital comes from vested, contingent, or remainder interest
Q
150
Administrative powers of PRs
If an advance is made on a contingent interest which subsequently fails, does the beneficiary
have to repay?
A
No
PRs may be liable for breach of duty if they acted unreasonably
151
Q
Administrative powers of PRs
Whilst a sole PR can give valid receipt for the proceeds of sale of land, what is required for the
actual transfer of land (and shares)?
A
All PRs must join together
Q
152
Protection of PRs
What is the liability of PRs to any unpaid beneficiary or creditor, and how can this be avoided?
A
PRs are personally liable, even if the beneficiary or creditor was unknown at the time of
distribution, unless they comply with section 27 of the Trustee Act
153
Q
Protection of PRs
What are the steps that must be taken under section 27 of the Trustee Act for a PR to protect
themselves from liability in the case of an unpaid beneficiary or creditor?
A
Place adverts in the London Gazette, a paper local to the trust or relevant property, and any
other appropriate publication, and request any interested person contact the PRs’ solicitor.
PRs must wait at least two months before distributing.
154
Q
Protection of PRs
What are the PRs’ four options when a knownbeneficiary or creditor cannot be found?
A
1.Pay their entitlement into court and distribute the rest
2.Distribute everything with an indemnity from the beneficiaries (risky because indemnity
is worthless if beneficiary has no funds)
3.Seek a Benjamin order
4.Purchase insurance against the risk
Q
155
Protection of PRs
What is a Benjamin order, and what is the extent of the protection it affords to PRs?
A
A court order which gives the PRs permission to distribute the estate based on an assumption set
out in the order, e.g. that the missing beneficiary is presumed dead. This gives full protection to
the PRs.
Q
156
Protection of PRs
If there could be a possible claim under the Inheritance (Provision for Family and Dependants)
Act 1975, how long should PRs wait to distribute, and why?
A
Six months, because a claim cannot be made without court permission after this time
Q
157
Collecting and realising assets
What is a solvent estate?
A
An estate with enough funds to pay expenses related to funeral and execution of the estate,
as well as debts/liabilities
Irrespective of whether there are enough funds to satisfy legacies
Q
158
Collecting and realising assets
If the will provides they should not be paid from the residue, what are the three sources that
debts owed to unsecured creditors are paid from?
A
1.Property specifically charged with/given in payment for debts
2.Pecuniary legacy funds
3.Specific legacies
159
Q
Collecting and realising assets
What is marshalling, and who can it be invoked by?
A
Marshalling is invoked by a disappointed beneficiary (whose specific legacy has been used
to satisfy a debt), and it allows them to be compensated
160
Q
Collecting and realising assets
What does it mean when property is given free of mortgage?
A
The mortgage must be paid out of the residue to the extent available
Q
161
Collecting and realising assets
Where an estate is insolvent, what is the prescribed order of entitlement, which if followed,
protects the PRs from liability?
A
1.Secured debts
2.Funeral and estate execution expenses
3.Preferred debts, i.e. wages, salary, and holiday pay of deceased’s employees for
prior four months, to a maximum of £800each
4.Ordinary debts, i.e. money owed to HMRC, and balance of preferred debts
5.Interest on 3 and 4
6.Deferred debts, i.e. loans from deceased’s spouse
Q
162
Collecting and realising assets
What implied warranty do the PRs give when the pay a category of debt knowing that there are
higher ranking debts?
A
They give an implied warranty that there are sufficient assets to meet all higher level debts
PRs personally liable if there aren’t sufficient assets
Not liable if they didn’t know of the superior debt
Q
163
Collecting and realising assets
Although PRs must not prefer one creditor over another in an insolvency situation, when will a PR
not be liable?
A
If they pay a creditor in one class in full, before the payment of others, and later discover the
estate to be insolvent
Must have acted in good faith and had no reason to believe estate was insolvent
164
Q
Post-death changes
How may a beneficiary disclaim their entitlement, and what precludes them from being able to
do so?
A
Orally or in writing, unless they have already accepted benefit
Must be in writing for IHT and CGT purposes
165
Q
Post-death changes
Where does a disclaimed gift go?
A
Into the residue, or into partial intestacy if the gift is the residue
Q
166
Post-death changes
Does disclaiming a gift prevent the same person from receiving property under intestacy rules?
A
No, and it could potentially be the exact same property
Consider disclaimer to be rejecting the status as beneficiary under a will, not rejecting the
property.
Q
167
Post-death changes
What is the main disadvantage of a disclaimer, and what is a way to overcome this?
A
The disclaiming beneficiary has no control over the ultimate destination of the gift.
This can be overcome by use of a variation(allows B to change who receives the gift)
Disclaimer is all or nothing. Variation can be of part of a gift.
Q
168
Post-death changes
What does it mean for a variation to be effectivefor tax purposes, and what are the three
conditions for this?
A
The variation is read back to the date of death as if the deceased had left the property to the
new beneficiary.
Variation must be:
1.In writing
2.Made within two years of death
3.Not made for monetary consideration
If conditions not met, the failed variation will be deemed a disposal by the original
beneficiary for CGT purposes
169
Q
Post-death changes
Unlike disclaimer, in what situation can a variation still be made?
A
When the original beneficiary has accepted a benefit
170
Q
Payment of legacies
What are the methods with increasing levels of formality which PRs must use to vest gifts in
beneficiaries when the gift is of:
1.Chattels
2.Company shares
3.Land
A
 Chattels: Items can be delivered, in exchange for receipt, and insurance then
cancelled
 Company shares: Stock transfer form
 Land: Assent in writing, and insurance then cancelled (B needs to register their
interest with HMLR)
171
Q
Payment of legacies
Unless the will provides otherwise, who bears the costs of transferring assets?
A
The beneficiary
172
Q
Payment of legacies
Beneficiaries are entitled to income from property gifted to them arising after what?
A
The deceased’s death
173
Q
Payment of legacies
When does the doctrine of abatement arise, and what does it provide?
A
When assets of a deceased person are not sufficient to fully satisfy all creditors, their
debts abate i.e. are reduced, proportionally, and the creditor has no choice but to accept this
lower value
Abatement also applies to any specific legacy except where a priority is given
174
Q
Ascertaining the residue
What is the tax presumption given to specific gifts of (1) UK property and (2) non-UK property?
A
Specific gifts of UK property are deemed free of tax, unless the will states otherwise.
The opposite presumption applies to non-UK property.
175
Q
Ascertaining the residue
What does free of tax require in practice?
A
PRs must pay off any tax liabilities beforedistributing assets to beneficiaries
176
Q
Ascertaining the residue
What are the four ways a PR can be authorised to receive remuneration for their services, in
exception to the general rule that they are not entitled to do so?
A
1.A legacy given to an executor
2.Express clause in the will (usually for professional PRs)
3.Beneficiaries (of the source of funds used to pay the PR) consent
4.Court permission
177
Q
Estate accounts
What are the three accounts which generally make up the estate accounts?
A
1.Income account
2.Capital account
3.Distribution account
178
Q
Estate accounts
Where does income that relates to the period before death but is received after death go?
A
Capital account
179
Q
Estate accounts
At this stage, how are the PRs discharged from liability?
A
1.PRs endorse the accounts and send to the residuary beneficiaries
2.Residuary Bs endorse the accounts
3.Residuary Bs formally discharge PRs with agreement to indemnify them against all
claims and demands (again, can be worthless if Bs have no money)
If B refuses to endorse, PRs can ask the court to approve, or can pay the objecting B’s share into
court
180
Q
Assents
What is an assent and what are the three requirements for one?
A
Document which vests legal title in a beneficiary.
1.In writing
2.Signed by the PRs
3.Expressly name the person in whose favour it is given
An assent relates back to the date of death, i.e. the property is treated as being the beneficiary’s
since the deceased’s death
181
Q
Assents
Is an assent still required if the PR is a beneficiary or trustee?
A
Yes, because the capacity in which they are holding the property is changing
182
Q
Assents
What must HM Land Registry be notified of?
A
Any change of ownership of registered land, from the deceased to the PRs or the beneficiary
183
Q
Assents
When buying land from a PR, what should a purchaser insist on which will protect the purchaser
unless they have notice to the contrary?
A
A statement in the conveyance that no previous assent has been made
Q
184
Assents
When buying land from a beneficiary, what is sufficient to prove the beneficiary has the right to
sell?
A
An assent in the beneficiary’s favour
185
Q
Beneficiary’s rights and remedies
Until administration is complete, what does a beneficiary not have?
A
B does not have any legal or equitable interest in the deceased’s assets
They merely have a right to have the estate properly administered
186
Q
Beneficiary’s rights and remedies
What are the two ways a disappointed beneficiary can recover loss from the PRs?
A
1.Personal action
2.Tracing
187
Q
Beneficiary’s rights and remedies
What are the two ways the PRs can be absolved in a personal action, even if they would
otherwise be personally liable?
A
1.If they acted honestly and reasonably, and ought fairly to be excused, or
2.Beneficiaries consent
Q
188
Beneficiary’s rights and remedies
What is tracing, and in what two situations is the right to it lost?
A
The right of the beneficiaries to trace and recover property from the estate from PRs or
subsequent purchasers.
The right to trace is lost if the purchaser is a bona fide purchaser for value without notice,
or it would otherwise be inequitable to allow tracing.
Q
189
Inheritance (Provision for Family and Dependents) Act 1975
What are the grounds to make a claim to the court under the 1975 Act, and what is the effect?
A
The terms of a will can be set aside or an intestacy can be varied if the deceased was
domiciled in England and Wales and did not make reasonable financial provision for the
applicant
190
Q
Inheritance (Provision for Family and Dependents) Act 1975
Within what time of what event must an application under the 1975 Act be made?
A
Within six months of the grant of representation to the PRs, or later with court permission
191
Q
Inheritance (Provision for Family and Dependents) Act 1975
What are the five categories of people who will qualify to make a claim under the 1975 Act?
A
1.Surviving spouse or civil partner at the date of death
2.Former spouse or civil partner who has not remarried (unless clean break divorce)
3.Child of the deceased or person treated as a child of the family (unless able-bodied
adult in full employment)
4.Person who was being maintained (via significant contribution toward reasonable
needs)
5.Person living with deceased as partner for entire two-year period before death
192
Q
Inheritance (Provision for Family and Dependents) Act 1975
What is the standard for reasonable financial provision when it comes to a spouse?
A
Financial provision which is reasonable in allthe circumstances, whether needed for
maintenance or not
Q
193
Inheritance (Provision for Family and Dependents) Act 1975
In their discretion, in what circumstance can the court apply the spouse standard to former
spouses?
A
If the death occurs within 12 months of the divorce decree and no final order has yet been made
in the divorce proceedings
194
Q
Inheritance (Provision for Family and Dependents) Act 1975
For all other applicants who aren’t spouses or former spouses qualifying for the spousal standard,
what is the standard?
A
Financial provision which is required for maintenance such that they can live decently and
comfortably according to their situation
195
Q
Inheritance (Provision for Family and Dependents) Act 1975
What occurs when the court approves an application under the 1975 Act?
A
The estate is administered according to the terms of the court order, and not the will or intestacy
Q
196
Inheritance (Provision for Family and Dependents) Act 1975
In the event of a successful application under the 1975 Act, what are the court’s four options
under their wide discretion?
A
1.Transfer property
2.Payment of a lump sum
3.Payment of income
4.Settlement of property on trust
197
Q
Inheritance (Provision for Family and Dependents) Act 1975
Does the court have any powers under the 1975 Act regarding property disposed of by the
deceased before death?
A
Yes, if that disposal was intended to avoid the provisions of the 1975 Act
1
Q
Introduction
What are the two categories of trust?
A
1.Express trust
2.Implied trust
Q
Introduction
2
What are the two types of express trust?
A
1.Private trust
2.Charitable trust
3
Q
Introduction
What are the three types of private trust?
A
1.Fixed trust
2.Discretionary trust
3.Purpose trust
Q
4
Introduction
What is a fixed trust?
A
A trust where the interests of the beneficiaries are defined by the settlor
Q
5
Introduction
What is a purpose trust?
A
A trust set up for a purpose rather than people, and will normally fail because it does not have
defined beneficiaries, subject to limited honorarytrusts, e.g. to maintain an animal
6
Q
Introduction
What is a charitable trust?
A
A trust created for the benefit of an indefinite class of people, or the public in general, and it
must fall under one of the recognised charitable categories to be valid
7
Q
Introduction
What are the two categories of implied trust?
A
1.Resulting trust
2.Constructive trust
Q
8
Introduction
In what three situations will a resulting trust arise?
A
1.Interest under an express trust fails
2.Express trust fails to exhaust the beneficial interest
3.Person makes a voluntary transfer or purchase in the name of another
9
Q
Introduction
What is the purpose of a constructive trust?
A
Imposed by the court to prevent unjust enrichment as a result of wrongful conduct
10
Q
Express private trusts
What are the three certainties required for a valid express private trust?
A
Certainty of:
1.Intention to create a trust
2.Subject matter i.e. property
3.Objects i.e. beneficiaries
11
Q
Express private trusts
When must a settlor’s intent to create a trust be expressly manifested?
A
When they own the property
12
Q
Express private trusts
However, whilst the intent must exist at the time the property is owned, what can arise later as
evidence of this?
A
Subsequent conduct consistent with an earlier intent
13
Q
Express private trusts
When must the settlor intend the trust to take effect when they express their intent?
A
Immediately
14
Q
Express private trusts
What is a precatory expression and what is the effect of this?
A
A settlor’s mere hope, wish, or suggestion that property be used in a certain way is not sufficient
to show intent to create a trust, i.e. impose a binding obligation on a trustee
I’m giving you £10,000 in the hope you will use it for your child’s education vs I’m giving you
£10,000 to use for your child’s education
15
Q
Express private trusts
What happens when a trust fails for uncertainty of intention?
A
The property passes as a gift to the person who would be trustee
16
Q
Express private trusts
Whilst the subject matter must be certain, i.e. clear, when may an apparently uncertain
description be valid?
A
When it is capable of objective definition, e.g. a reasonable income
Amount to be received by a beneficiary must be defined with sufficient clarity also
17
Q
Express private trusts
What factor determines whether a fractional share of property is valid?
A
Whether it is tangible or intangible.
Intangible, e.g. shares: Fractions, e.g. 50% or half are valid
Tangible: Not valid unless the fraction has been segregated for the trust, even if the
property is identical, e.g. wine of the same type and vintage
18
Q
Express private trusts
Whilst a future interest can be held in a trust, what cannot be?
A
An interest not yet in legal existence, e.g. an expected interest in property
E.g. expected interest under a will where testator is still alive (they could change their mind up
until death)
19
Q
Express private trusts
What happens when a trust fails for uncertainty of subject matter?
A
Property reverts to settlor
Q
Express private trusts
20
When a collective term for a class of beneficiaries is used, what must it be capable of? What are
some examples of valid and invalid collective terms and why?
A
It must be capable of objective definition.
Nieces, nephews, brothers, sisters are valid because these can be defined by reference to the
settlor’s actual family.
Friends, acquaintances are not valid because these are a fluid groups, changing all the time and
over time.
This is conceptual certainty
21
Q
Express private trusts
Where a collective term is used for a class of beneficiaries, what are the two types of test used
for (1) fixed trusts and (2) discretionary trusts?
A
1.Complete List Test - used for fixed trusts
2.Given Postulant Test - used for discretionary trusts
Q
22
Express private trusts
What does the complete list test require for a fixed trust to be valid where a collective term is
used for a class of beneficiaries?
A
Trustee must be able to draw up a complete list of beneficiaries, with evidence
Will fail for evidential uncertainty if not evidenced
Not all beneficiaries need to be in existence, as long as they are ascertainable by the time their
interest vests
Q
23
Express private trusts
Under the complete list test, will a fixed trust fail if a beneficiary is known to exist but cannot be
traced?
A
No
Q
24
Express private trusts
What is required under the given postulant test for a discretionary trust?
A
Definition of class must be sufficiently clear to enable to the trustees to assess the potential
range of beneficiaries and determine whether any given postulant (person) falls within the
class
It is not necessary for the whole range of potential beneficiaries to be ascertainable.
Q
Express private trusts
25
Why will evidential uncertainty not cause a discretionary trust to fail?
A
Because a potential beneficiary who cannot prove they are within the class has no right to be
considered by a trustee
26
Q
Express private trusts
Regarding objects, what one thing will cause a discretionary trust to fail despite the relaxed rules
on class definition?
A
Where there are so many beneficiaries that the trust is administratively unworkable
E.g. a trust of £400,000 to be divided among the people in the county of Antrim
27
Q
Express private trusts
What happens when a trust fails for uncertainty of objects?
A
A resulting trust in favour of the settlor or the settlor’s successors is presumed
Q
Express private trusts
28
Except for honorary and charitable trusts, what must the objects of an express trust be?
A
Human
Trusts “to maintain freedom of the press” or “to maintain my home” will fail
Q
29
Express private trusts
If a trustee refuses the appointment, resigns, or dies, in what circumstance will the
court notappoint a replacement?
A
Where the settlor intended the trust to continue only as long as that particular trustee served
Q
30
Express private trusts
Who may be a trustee?
A
Anyone with capacity to acquire and hold property for their own benefit, even the settlor
e.g. a private individual, a professional person, or a trust company, but not a minor
Q
Express private trusts
31
Why is it not advisable to appoint too many trustees?
A
Because trustees must act with unanimity
32
Q
Express private trusts
What is the minimum and maximum number of trustees allowed?
A
Minimum of one. No limit on the maximum.
A trust of land must have at least two (one if trust corp)and no more than four trustees.
33
Q
Express private trusts
What are the two rules against perpetuities?
A
1.Remoteness of vesting rule
2.Inalienability rule
Q
34
Express private trusts
What does the remoteness of vesting rule provide?
A
An interest under a trust is void if it does not or will not vest within 125 years
35
Q
Express private trusts
What does the inalienability rule provide?
A
In the exceptional case where a non-charitable purpose trust is valid, it is valid for either:
1.21 years or
2.The rest of a living person’s life plus 21 years
Q
36
Express private trusts
Where no perpetuity period is given in a non-charitable purpose trust, what is presumed?
A
That it is for no more than 21 years
Q
37
Express private trusts
What is a declaration of trust in an intervivos trust?
A
Settlor’s irrevocable demonstration by words or conduct satisfying three certainties and
perpetuity, that they intend the trustee (or themselves as trustee if it is transfer to self) to be
legally bound
38
Q
Express private trusts
How must a settlor transfer property to the trust?
A
In the same legal fashion as a PR does to a beneficiary
Assent/transfer deed for land, then registered at HMLR; stock transfer form for shares; chattels
delivered with intent
Q
39
Express private trusts
What is required for a declaration trust of land?
A
It must be evidenced in writing and signed by settlor
Q
40
Express private trusts
Where a settlor is setting up a trust of land with a third party as trustee, what should be
distinguished?
A
 Requirement for a signed writing to evidence the declaration of trust; and
 Requirement for a deed registered at HMLR to make the transfer
41
Q
Express private trusts
What is the impact of the maxim equity will not assist a volunteer on the process of setting up a
trust with a third party as trustee, and what is the name given to the gift in this situation?
A
If an individual attempts to make a gift of property to another but fails to transfer the legal title
in the correct manner, equity will not normally enforce the gift
The gift is imperfect and fails, because the donee has paid no consideration and is asking the
court to enforce a gratuitous promise
42
Q
Express private trusts
What are the four exceptions to this rule that equity will not perfect an imperfect gift, which also
apply to improperly constituted trusts?
A
1.Every effort test
2.Donatio mortis causa
3.Fortuitous vesting rule in Strong v Bird
4.Proprietary estoppel / unconscionable to change mind
43
Q
Express private trusts
Under the every effort test, what must be done for equity to perfect an imperfect gift?
A
Donor/settlor has done everything required of them and has put the property outside their
control
Naturally will not apply if they retain possession.
44
Q
Express private trusts
What are the three requirements for donatia mortis causa, i.e. gift by reason of death?
A
1.Donor delivers property to donee while in objective contemplation
of imminentor impending death
2.Donor intends that the property be given to donee if donor dies, or returned if
donor survives, and
3.Donor does indeed die
Will not apply if donor did was not aware of or considering their imminent death when making
the gift
Q
Express private trusts
45
What triggers the fortuitous vesting rule in Strong v Bird with regard to (1) gifts and (2)
trusts, and what is the effect of the rule?
When does it not apply?
A
Triggered by donor/settlor dying before transfer is made.
Transfer is complete in law and enforceable if
1.Gifts - Recipient becomes the donor’s personal representative
2.Trusts - Trustee becomes the settlor’s PR
Rule does not apply if there is evidence that donor changed their mind before they died, by doing
something inconsistent with the original gift, e.g. selling it
46
Q
Express private trusts
What are the requirements for a testamentary trust, and why is there not a requirement for
the testator to transfer the property?
When does the trust take effect?
A
Trust must be:
1. Revocable until death, and
2. Be contained in a duly executed valid will
No requirement for T to transfer as PRs do this
The trust takes effect upon death
47
Q
Express private trusts
In addition to the trust just being fully set out in the will, what is the distinction between a fully
secret testmentary trust and a half secrettestmentary trust?
A
A fully secret trust looks like an outright gift to a nominated person.
A half secret trust will mention that a trust exists but keeps the identity of the beneficiary
secret
48
Q
Express private trusts
In order for a beneficiary under a half secret trust to enforce, when must their identity be
communicated to the trustee?
What must be true of the communication of the half secret trust?
A
At or before the making of the will
The communication of the half secret trust must not be inconsistent with the will
49
Q
Express private trusts
What must a beneficiary of a fully secret trustdo to enforce it?
A
Prove the terms by clear and convincing evidence
Q
50
Express private trusts
Like a half-secret trust, does the communication giving the nominated person the instructions
regarding the fully secret trust need to be made before the will?
A
No, it can be made before or after
Q
51
Express private trusts
One of what two things will cause a fully secret trust to fail, and what happens to the
property?
A
A fully secret trust will fail if:
1. Nominated person expressly refuses to accept the trust, or
2. Did not know of the intended secret trust until after the testator’s death
The nominated person will take the property free of any trust
Q
Express private trusts
52
What is a limited interest beneficiary?
A
A beneficiary who does not have an interest in the capital of the fund, but only in its income
E.g. a life interest holder
53
Q
Express private trusts
What are the two requirements for the beneficiaries to call for the termination of the trust and
transfer of trust property under the rule in Saunders v Vautier, which trustees are obligated to
comply with?
A
All beneficiaries must:
1.Together have an absolute interest in the property, i.e. an interest in the capital, and
2.Be of full age and sound mind
54
Q
Resulting trusts
What are the three situations in which a resulting trust will arise?
A
Where:
1.Property is transfered to another with no consideration or evidence of any reason;
2.Property is purchased using joint proceeds but legal title is not in the name of all
parties
3.An express trust fails to dispose of all of the trust property
In 1, the transferee holds property on trust for transferor. In 2, person with legal title holds a
proportionate share on trust for the contributor. In 3, property reverts to the settlor.
55
Q
Resulting trusts
For the purchase money rules to apply, what must the would-be beneficiary’s purchase money
contribution actually go towards?
When must the consideration be supplied?
A
Consideration for the purchase of the property
Insufficient if money just used to make improvements or pay taxes
Consideration must be supplied before the purchaser takes legal title
56
Q
Resulting trusts
What is the standard of proof and who has the burden of proving a resulting trust?
A
The would-be beneficiary must prove by clear and convincing evidence
57
Q
Resulting trusts
If a presumption of resulting trust has arisen in a purchase money situation, what three things
can the title holder suggest to rebut it?
A
Suggest the money used as consideration was:
1.A gift
2.A loan
3.Payment of a debt
58
Q
Resulting trusts
When is the presumption of resulting trust deemed not to apply, and what are three
archaic, yet testable situations in which this may arise?
How is the transfer treated?
A
The presumption of advancement applies when the provider of the purchase money is
treated as being under a “moral obligation” to make financial provision for the recipient:
1.Husband to wife
2.Father to daughter
3.Loco parentis (assumed parental duties); only one which applies to females
The transfer is treated as a gift
Q
59
Resulting trusts
How may the provider rebut the presumption of advancement, i.e. argue that a resulting trust
should be presumed?
A
Providing evidence of acts and declarations before or at the time of purchase or transferto
show they intended to retain an equitable interest
Before or at the time, not after
Q
60
Trusts of the family home
What is a declaration of trust, and is it conclusive even where there was unequal contribution to
the purchase?
A
A document where the parties owning an asset declare they hold it on trust in for themselves
and others
Conclusive, unless there is fraud or mistake
Also available when only one party holds legal title, but others contributed
Q
Trusts of the family home
61
Where only one party holds the legal title, what is required for the declaration of trust to control?
A
A writing signed by the owner, made on the day of conveyance or after
i.e. when they actually came into the legal title
62
Q
Trusts of the family home
Where proprietary estoppel arises in the context where legal title is only in the name of one
party, what will the claimant’s remedy depend on?
A
Their expectation (based on assurance) and the detriment actually suffered
63
Q
Trusts of the family home
What equitable interest is presumed where there is no declaration of trust, and why?
A
Joint tenancy, because equity will follow the law
Joint tenancy is the only way to hold a legal interest jointly
Q
Trusts of the family home
64
How is this presumption that equity follows the law with regard to an equitable interest in
the absence of a declaration of trust rebutted?
A
Using evidence that the parties intended otherwise, either before or after the purchase
E.g. the parties intended a different split in the equitable interest
65
Q
Trusts of the family home
When does a common intention constructive trust arise, and what are the two criteria a
claimant must establish?
A
When claimant attempts to assert an equitable interest in the family home based on actual
discussions between the parties.
Claimant must establish:
1.Parties had an express or inferred common intention to own the property, such
that the claimant should have an equitable interest, and
2.Claimant relied to their detriment
66
Q
Trusts of the family home
What must a claimant show to establish express common intention?
A
Actual discussions between the parties, relating to ownership of the property, leading the
claimant to this belief. Discussions of a “life together” are not sufficient.
67
Q
Trusts of the family home
In the context of express common intention, when will the court allow the legal owner to give
an excuse?
A
If the excuse would cause a reasonable person to conclude there is some legitimate desire for
not having two owners
68
Q
Trusts of the family home
In what four situations can the court infer a common intention?
A
1.Direct contribution to purchase price
2.Mortgage payments
3.Payment of household expenses to enable legal owner to make mortgage payment
4.Substantial renovations to the property
Note how this is different from a resulting trust in the property which requires the money
to directly fund the purchase, and where only option 1 and not options 2-4 would suffice.
Q
69
Charitable trusts and other purpose trusts
What are the three distinctive features of charitable trusts?
A
1.No requirement of ascertainable human beneficiaries
2.Cy-pres doctrine applies
3.May be perpetual
70
Q
Charitable trusts and other purpose trusts
What are the two requirements for a charitable trust?
A
1.Principal purpose(s) must be charitable and exclusively so
2.Must be for public benefit
71
Q
Charitable trusts and other purpose trusts
What are some of the charitable purposes under the Charities Act 2011?
A
 Poverty
 Education
 Religion
 Health or saving lives
 Community development
 Arts, culture, heritage
 Amateur sport
 Human rights
 Environment
 Animal welfare
72
Q
Charitable trusts and other purpose trusts
What is the public benefit test for a charitable trust?
A
Trust must bestow identifiable benefit on the public or a section of the public
Q
73
Charitable trusts and other purpose trusts
What is the status of purposes which are not allowed under a charitable trust, e.g. politics or
private purposes, but are merely incidental?
A
An otherwise valid charitable trust which incidentally advances politics or benefits some private
individuals will not fail
Q
Charitable trusts and other purpose trusts
74
Where there is a mix of charitable and non-charitable principal purposes, what can the court do
to prevent the charitable purpose trust from failing?
A
Sever the charitable from the non-charitable purposes
75
Q
Charitable trusts and other purpose trusts
Despite not having ascertainable beneficiaries, who is able to enforce a charitable trust?
A
The Attorney General, on behalf of the public
76
Q
Charitable trusts and other purpose trusts
What are the perpetuities rules and which ones apply to charitable trusts?
A
1.Remoteness of vesting rule – 125 years (applies as normal, unless charity to charity
transfer)
2.Inalienability rule – 21 years (does not apply to charitable trusts)
Therefore, the initial gift to a charitable trust must vest within 125 years, unless a charity to
charity transfer
Q
77
Charitable trusts and other purpose trusts
When does the cy-pres doctrine apply, and what does it permit the court to do?
A
Cy-pres applies when the charitable purpose of a trust has become impossible or impractical, and
it permits the court to direct trust property be applied for another charitable purpose as close as
possible to the original one rather than allowing the trust to fail
Q
78
Charitable trusts and other purpose trusts
How many approaches to cy-pres are there, what does the applicability of each depend on, and
what does the use of each determine?
A
Two approaches, depending on when the objectives became impossible relative to the trust, and
the approach determines whether charitable intent on behalf of the settlor is needed
Q
79
Charitable trusts and other purpose trusts
Is charitable intent of the settlor required if the gift fails (1) at the time the trust comes into
operation, and (2) after the trust comes into operation?
A
Initial failure: Cy-pres requires general charitable intent of settlor
Subsequent failure: No charitable intent needed
80
Q
Charitable trusts and other purpose trusts
What makes a general charitable intent difficult to infer?
A
When the testator has taken care to identify a specific named charity
81
Q
Charitable trusts and other purpose trusts
What are the four private purpose trusts which are valid in exception to the general rule, subject
to perpetuity rules?
A
1.Denley trusts
and honorary trusts for the:
2.Maintenance of particular animals
3.Saying of private masses, and
4.Erection and maintenance of monuments and graves
The rule against perpetuity (21 years) applies to purpose trusts
82
Q
Charitable trusts and other purpose trusts
What is a Denley trust?
A
A trust which appears to be for a private purpose but is valid because it is actually for the benefit
of ascertainable human beneficiaries, e.g. where beneficiaries are employees of a company, at
any given time, there will be a record of every single person who is an employee
83
Q
Charitable trusts and other purpose trusts
What happens if the trustee refuses or fails to carry out an honorary trust?
A
A resulting trust is imposed for the settlor or their estate
84
Q
Charitable trusts and other purpose trusts
What is meant by the fact the court will not take judicial notice of the subject matter of an
honorary trust for perpetuity purposes?
A
The court will not take into consideration the likely lifespan of a particular animal, so a gift for
an animal’s maintenance will fail unless specific provisions are made limiting its
duration, unless it is obvious the entire gift will be spent within the perpetuity period
Q
Charitable trusts and other purpose trusts
85
Where a timescale is not specified, how can it be inferred based on value that a gift does not
breach the vesting rule?
A
If the amount will likely be spent within 21 years, the gift is likely allowed
Q
86
Appointment, retirement, and removal of trustees
What is the minimum number of trustees?
A
One, but if trust property is land at least two trustees or a trust corporation is required to give
valid receipt for capital money arising on the sale of land
Q
87
Appointment, retirement, and removal of trustees
What is the maximum number of trustees for (1) a trust of land and (2) a trust of all other
property?
A
Land: Maximum of four
Other property: No maximum
Q
88
Appointment, retirement, and removal of trustees
Once the trust is created, does the settlor retain power to appoint new trustees?
A
Not unless there is express provision in the trust instrument
Q
89
Appointment, retirement, and removal of trustees
Who has the power to appoint additionaltrustees?
A
All trustees, unless one is designated to have this power
90
Q
Appointment, retirement, and removal of trustees
Even where the trust is not land, what is the number of trustees which a trust must not exceed
specifically through the trustees’ power to appoint new trustees?
A
Four.
If a trust already has four trustees, this power will therefore not be available.
Q
91
Appointment, retirement, and removal of trustees
What four parties have the power to appoint replacement trustees, and in what order of
priority?
A
1.Person named in the trust instrument, or if silent:
2.Surviving/continuing trustees, or if none:
3.Personal representative of the last surviving trustee, or if none
4.The court
Q
92
Appointment, retirement, and removal of trustees
Must the appointment of a replacement be in writing?
A
Yes, but it does not have to be made by deed
Q
93
Appointment, retirement, and removal of trustees
Even though a deed is not necessary, why is it usually used?
A
Because it will vest legal title to the trust property in the new trustee
Q
94
Appointment, retirement, and removal of trustees
Although beneficiaries generally have no power to control the trustees unless there has been a
breach, they can select trustees if what three conditions are met?
A
1.No person is nominated in the trust instrument to have this power
2.The criteria of the rule in Saunders v Vautier are met (full age and sound mind,
together they are absolutely entitled), and
3.Beneficiaries act unanimously
95
Q
Appointment, retirement, and removal of trustees
Where these criteria are satisfied, what can the beneficiaries do, and why when the general rule
is that they cannot?
A
In writing, order one or more of the existing trustees to retire and order the remaining trustees
to appoint a trustee/trustees of the beneficiaries’ choosing.
They can do this because the rule in Saunders v Vautier is satisfied, so they could elect to shut
down the trust and take the property anyway if they wanted.
96
Q
Trustees’ duties and powers
What are a trustee’s eleven duties?
A
1.Of care
2.Of confidentiality
3.Not to profit from trust
4.Not to self-deal
5.To observe terms of trust
6.To act jointly
7.To act personally
8.To take possession of trust property
9.To keep accounts
10. To act impartially
11. To invest
97
Q
Trustees’ duties and powers
What must a trustee who obtains remunerative employment by virtue of a trusteeship, e.g.
directors fees for acting on the board of a company in which the trust holds shares, do with this
money?
A
Hold it on constructive trust for the trust beneficiaries
Same as a trustee who earns personal profit as a result of opportunities or information which
came to them due to their trusteeship
Q
98
Trustees’ duties and powers
When does this rule not apply?
A
If the trustee would have gotten the paid appointment anyway
99
Q
Trustees’ duties and powers
What are the five exceptions to the general rule that a trustee may not charge for expenses
other than out of pocket expenses?
A
1.Clause in trust allowing them
2.Professional trustee charges
3.Trust corporation
4.All beneficiaries agree
5.Court authorisation
100
Q
Trustees’ duties and powers
Under the Trustee Act 2000, what three conditions must be satisfied for a professional trustee to
charge reasonable remuneration?
A
1.Not the sole trustee
2.Co-trustees give their written consent
3.No express provision relating to trustee’s charges
101
Q
Trustees’ duties and powers
The duty not to self-deal prevents a trustee from purchasing trust property. What is the full
extent of this prohibition?
A
It applies in all circumstances, even if they pay fair market price or more, and irrespective of
good faith or benefit to the trust
A purchase of trust property by a trustee is voidableby the beneficiaries, and may also be
ratified by the court
102
Q
Trustees’ duties and powers
Whilst a trustee cannot purchase trust property, what is there no prohibition on them
purchasing?
A
A beneficial interest to this property from a beneficiary
Q
103
Trustees’ duties and powers
What three conditions must be met for the purchase by a trustee of a beneficiary’s beneficial
interest to not be voidable?
A
Trustee must show they:
1.Paid a fair price
2.Made full disclosure of all material facts
3.In no way abused their position
Trustee has burden of proof if the beneficiary who sold their interest challenges this
104
Q
Trustees’ duties and powers
What are five further equitable duties on a trustee?
A
1.Enquire as to trust property
2.Take control of it
3.Ensure its preservation
4.Ensure legal title is vested in all trustees
5.Ensure trust property is segregated from the trustee’s personal assets
105
Q
Trustees’ duties and powers
What is a trustee’s statutory duty of care, and when does it apply?
A
Trustees must exercise such care and skill as is reasonable in the circumstances, taking
into account special knowledge the trustee either has or holds himself out as having, especially if
they are a professional
Applies when trustees are making investment decisions and appointing agents
106
Q
Trustees’ duties and powers
When the statutory duty does not apply, what is the traditional duty of care?
A
Trustees must act with the prudence of an ordinary man of business acting in relation to their
own affairs
107
Q
Trustees’ duties and powers
How do the duty to act personally and the duty to act jointly not contradict each other?
A
In acting personally, the trustee must actually play their part and remain active in the trust. They
do not have a general power to delegate. However, in playing their respective parts, the trustees
must act unanimously in the exercise of their discretions.
Clause in trust or court authorisation needed to notact unanimously
108
Q
Trustees’ duties and powers
What are the three exceptions to the duty to act personally?
A
1.Administrative functions can be delegated
2.Delegation of certain investment decisions to an investment manager
3.Power of attorney for all functions for no more than 12 months (trustee still liable)
For 1 and 2, trustee not liable if they supervise in accordance with statutory duty
109
Q
Trustees’ duties and powers
Whilst a trustee may delegate administrative functions, what may they never delegate?
A
Exercise of discretion
Subject to power of attorney 12 month exception
Q
110
Trustees’ duties and powers
What is the effect of the duty to take possession of trust property where there is more than one
trustee?
A
It trust property is left in control of one of them only, the co-trustees will be liable if that trustee
misappropriates the property
Q
Trustees’ duties and powers
111
What are the four requirements of a trustee under the duty to invest?
A
Trustee must ensure:
1.Investments they select are authorised by statute or trust instrument
2.Take into account the standard investment criteria
3.Take any necessary advice, unless unnecessary
4.Keep investments under appropriate review
112
Q
What is a trustee’s general power of investment?
A
Any investment they could make if the were absolutely entitled to trust assets
Q
113
Trustees’ duties and powers
What was investment traditionally interpreted to mean, and what has the approach been in
recent years?
A
Traditionally an income producing asset, but recently a purchase aimed primarily at capital
growth has been acceptable #gains
114
Q
Trustees’ duties and powers
What is not authorised unless the trust instrument expressly provides for it?
A
Purchasing land outside the UK
115
Q
Trustees’ duties and powers
What are the two standard investment criteria, which trustees must consider?
A
1.Suitability of the investment in terms of time, cost, and risk
2.The need for diversification of trust investments
Q
116
Trustees’ duties and powers
What type of advice must the trustees receive before exercising the power to invest?
A
Proper advice, which is the advice of a person the trustees reasonably believe to be
qualified to give it based on their ability and experience
Does not have to be a financial advisor, as long as experienced in such matters
Q
Trustees’ duties and powers
117
What is required for trustees to delegate their duty/power to invest to an investment manager?
A
A written policy statement including details of the trust and the investment objectives must be
incorporated into the contract between the trustees and investment manager
118
Q
Trustees’ duties and powers
Is a trustee liable if assets go down in value or fail to appreciate?
A
Not as long as the trustee has complied with their duties as set out in these cards. It is
understood that investing in anything does not guarantee returns, so failure to produce returns
alone is not a breach of duty.
119
Q
Trustees’ duties and powers
Whilst trustees are not generally subject to the control of beneficiaries, what two rights do the
beneficiaries have?
A
1.Right to compel exercise of duties, via court application
2.Right to inspect trust documents, other than documents detailing trustee’s exercise of
discretion
120
Q
Trustees’ duties and powers
What must the beneficiaries show of trustee behaviour for it to be excepted from the rule that
trustee behaviour within their powers cannot be challenged/controlled?
A
That it was irrational and capricious
121
Q
Trustees’ duties and powers
Although not generally required, in what situation may a trustee be required to provide an
explanation to the beneficiaries?
A
If trustees have given beneficiaries a legitimate expectation that discretion will be exercised in a
particular way, they are expected to warn the beneficiaries if they decide to change their mind
122
Q
Trustees’ duties and powers
What are the two additional powers beneficiaries have when they are full age and capacity, and
absolutely entitled to the entire interest between them?
A
1.Bring trust to an end and require trust funds be transferred to them (Saunders v
Vautier)
2.Require trustees to retire and appoint new ones of their choice (extension of S v V rule)
123
Q
Liability for breach of trust
What is the question to ask in assessing whether a trustee breached a duty, and what is the
situation if the answer is no?
A
Was the act one that the trustee was authorised to perform or omission one that they
were not required to perform under the trust instrument or by law?
If the answer is no, the trustee is in breach of duty regardless or good faith, skill, diligence, or
benefit to the trust.
If yes, consider whether trustee acted in accordance with the relevant standard of care (statutory
duty for investing and appointing agents; traditional duty for everything else)
Q
124
Liability for breach of trust
Who has the burden of proof where the trustee is accused of causing loss?
A
The beneficiary, and if they cannot prove loss, the trustee has no liability
Q
125
Liability for breach of trust
What is the consequence of the rule that gains from one breach cannot be used to offset losses
of an earlier breach (unless part of a linked investment scheme)?
A
The beneficiaries can keep the gain from the profitable breach, but still sue for the loss
126
Q
Liability for breach of trust
Whilst a trustee is not vicariously liable for the acts of co-trustee, what could they be liable
for?
A
Their own separate breach of trust, e.g. failure to supervise the actions of the trustee in breach
127
Q
Liability for breach of trust
What is the liability of breaching trustees where more than one is in breach?
A
Joint and several
Court can apportion liability so that it is just and equitable
128
Q
Liability for breach of trust
What are the three main defences available to trustees?
A
1.Consent of beneficiaries (full age and capacity, with full knowledge of what they are
consenting to)
2.Limitation period
3.Exclusion clause
Trustee still liable to any beneficiary who did not consent
129
Q
Liability for breach of trust
What are the three considerations which affect the six year limitation within which an action for
breach of trust must be brought?
A
1.The six year clock does not run for a beneficiary with a remainder interestuntil the
interest vests
2.No limitation where trustee was a party to fraud
3.No limitation to recover trust propertyor proceeds from a trustee
130
Q
Liability for breach of trust
Whilst clauses purporting to exclude trustee liability are strictly construed, they will generally be
enforceable in the absence of what four things?
What is the extent of breaches which can be excluded?
A
1.Bad faith
2.Intentional breach
3.Fraud
4.Recklessness
Up to and including gross negligence
131
Q
Liability for breach of trust
What is the difference between (1) a personal claim and (2) a proprietary claim?
A
1.Personal: Claim for breach of trust against the trustee personally
2.Proprietary: Claim against trust property or proceeds when it is known to be in the
trustee’s possession (equitable tracing)
132
Q
Liability for breach of trust
Why is a proprietary claim advantageous?
A
1.Personal claims are a waste of time if trustee is insolvent
2.In proprietary claim, beneficiaries have priority over other creditors
3.In proprietary, if value of property increases, beneficiaries get this value
Q
Liability for breach of trust
133
In a proprietary claim, (1) what can the beneficiaries do if the original trust property is in the
hands of the trustee, and (2) what are their two options where the trustee has substituted the
property?
A
1.Original trust property: Claim it back
2.Substituted: Either claim that asset or a charge over it covering the loss
134
Q
Liability for breach of trust
What are the beneficiaries’ options when the trustee combines trust funds with their own to
purchase an asset?
A
The beneficiaries may:
1.Claim a proportionate part of the asset, or
2.Claim a charge over the asset for the amount of trust property used
Q
135
Liability for breach of trust
Where a trustee places trust money into a bank account with the trustee’s own money, how are
subsequent transactions treated, and what are the beneficiaries’ options?
A
Trustee is treated as spending their own money first, and the beneficiaries may claim a
charge over the bank account for the amount of trust funds in it
136
Q
Liability for breach of trust
What occurs when the trustee uses mixed money to purchase an asset and then dissipates the
balance, and why is it considered an exception to the spend own money first rule?
A
If trustee uses mixed money to purchase an asset and then dissipates the balance, the
beneficiaries can claim a share or charge over the asset up to the value of the trust property
taken, as if the trustee had actually spent trust money first.
Any shortfall at this stage is the subject of a personal claim against the trustee.
137
Q
Liability for breach of trust
If after this, the trustee tops up their account with their own money, is this treated as replacing
trust money?
A
Not unless the trustee shows a clear intention that this is the case
Q
138
Liability for breach of trust
What is the lowest intermediate balance in this situation and what is the effect of it?
A
It is the account balance after the last payment out but before the next payment in topping up
the account, and it is the limit that the beneficiary can claim in a proprietary claim
139
Q
Liability for breach of trust
Where a trustee mixes funds from two or more funds in the trustee’s personal account, what
determines how the funds are treated?
A
The type of bank account, i.e. current or savings
Q
140
Liability for breach of trust
What is the rule where the trustee’s personal account is a current account?
A
The general rule is first in first out
141
Q
Liability for breach of trust
What is the rule where the trustee’s personal account is a savings account?
A
The proportionate rule is the default rule
142
Q
Liability of third parties
What is a bona fide purchaser for value without notice?
A
A third party who acquires legal title to trust property for value and without notice of the
trust
Beneficiaries have no proprietary or personal claim against a BFP for V
Q
143
Liability of third parties
What is an innocent volunteer recipient?
A
Similar to a bona fide purchaser for value without notice, except instead of purchasing for
value, they were gifted it or otherwise came into possession
Beneficiaries may have a proprietary claim against an IVR
Q
144
Liability of third parties
What are the three conditions for a beneficiary to bring a proprietary claim against an innocent
volunteer recipient?
A
1.Property was subject of fiduciary relationship
2.Property or proceedings identifiable using equitable tracing rules
3.Property is not in the hands of a bona fide purchaser for value without notice
145
Q
Liability of third parties
In a proprietary claim against an innocent volunteer recipient, what is the beneficiary’s option
when:
(1) Property is in its original form or has been substituted for another asset;
(2) Property is mixed with the volunteer recipient’s own property to purchase an asset?
A
1.Beneficiaries can claim the asset
2.Beneficiaries can claim a proportionate share of the asset
Q
146
Liability of third parties
In a proprietary claim against an innocent volunteer recipient when property is mixed with the
volunteer recipient’s own property to purchase an asset, why is there no option for the
beneficiary to claim a charge over the asset like they can with a trustee, and what is the effect of
this?
A
Because the volunteer is an innocent party, and there can be no charge against them.
Loss in value is therefore shared proportionately between innocent volunteer and trust
beneficiaries.
147
Q
Liability of third parties
What is subrogation?
A
The process whereby upon an innocent volunteer using the trust funds to discharge a secured
debt, the beneficiary can trace the money into the repayment and bring the debt back to life,
making the beneficiary the creditor on the original terms
148
Q
Liability of third parties
What is a knowing recipient, and what claim is available against them?
A
A third party who receives money or property traceable to a breach of trust if they knew or
should have known of the breach will be treated as if they were a trustee, and as such
a personal claim will be available
Claimaint must show it would be unconscionable for the third party to retain the property
Q
149
Liability of third parties
What is a dishonest accessory?
A
A third party who facilitates a breach of trust will be treated as if they were a trustee if their
assistance was dishonest, i.e. a constructive trustee liable for a personal claim
Passive assistance can qualify
Q
150
Liability of third parties
What is the conscious impropriety requirement for dishonest accessory and what is the highly
examinable effect of it?
A
Dishonesty requires not acting as an honest person would in the circumstances.
The dishonest accessory does not need to know they are participating in a breach of
trust. They must merely know that the scheme they are involved in is somehow dishonest or
improper.
Q
151
Liability of third parties
Why is a proprietary claim not usually relevant in the case of a dishonest accessory?
A
Because the accessory is unlikely to have received trust property in the course of facilitating the
breach of trust, which is the basis of a proprietary claim
Q
1
Methods of dispute resolution
What are the four processes for resolving disputes?
A
1.Litigation
2.Negotiation
3.Arbitration
4.Mediation
2
Q
Methods of dispute resolution
What does the fact negotiations are without prejudice mean?
A
Conversations cannot be relied on by parties or referred to in courts
3
Q
Methods of dispute resolution
To keep in line with the overriding objective, which requires cases be resolved in a proportionate,
expeditious and fair matter, how should ADR be considered?
A
 Lawyers should make their clients aware of it
 Possibility of ADR should be considered throughout a proceeding
Q
4
Methods of dispute resolution
If a party considers ADR inappropriate, but does not set out their reasons, what can the court
do?
A
Penalise the party in respect of legal costs that they can recover, or an order making them pay
costs incurred by the other side as a result of the conduct
This applies to failure to follow Civ Pro rules generally
5
Q
Methods of dispute resolution
What are the three key features of mediation?
A
1.Parties can walk away at any time
2.Strict rules of evidence do not apply
3.Mediation is non-binding until final written agreement is signed
6
Q
Pre-action considerations: limitation
What is the outcome where a solicitor incurs costs advancing a claim which is statute-barred?
A
They will be deemed negligent and not actingin client’s best interests
7
Q
Pre-action considerations: limitation
What is the limitation period for:
(1) breach of contract and most claims in tort;
(2) personal injury and fatal accident claims;
(3) defamation claims;
(4) unfair dismissal claims?
A
1.Six years
2.Three years
3.One year
4.Three months
8
Q
Pre-action considerations: limitation
What is the long stop limitation for latent defects?
A
Fifteen years
9
Q
Pre-action considerations: limitation
In a tort action, when does the limitation period begin running?
A
Generally, from the date the cause of action accrues, i.e. when the tort occurs
10
Q
Pre-action considerations: limitation
In a tort action where the claimant’s injury is not apparent, when does the limitation period begin
running?
A
When the claimant first gains knowledge that they have a claim
11
Q
Pre-action considerations: limitation
In a tort action, when is the date of knowledge considered to be?
Does the claimant need to know the precise details?
A
The point at which the claimant had sufficient knowledge of all the facts to commence
investigations into the potential claim against the defendant
No, sufficient information is enough
Q
12
Pre-action considerations: limitation
In a tort action, the date of knowledge does not occur until the claimant has knowledge of what
four things?
In addition to knowing they have an injury, what must a claimant know?
A
1.That the injury is significant
2.That it is attributable in whole or part to the act or omission alleged
3.Knowledge of the defendant
4.Identity of any other actors if it is they who did the conduct, not D (e.g. hospital/doctor
situation)
Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant
13
Q
Pre-action considerations: limitation
In a tort action, what are the two options for the limitation period if the injured party dies within
three years of the accrual date?
A
Three years from:
1.Date of death, or
2.Date of knowledge of the deceased’s personal representative
14
Q
Pre-action considerations: limitation
In a contract action, when does the limitation period begin running?
A
On the date of breach
Q
15
Pre-action considerations: limitation
What is a make good clause in a contract and can they be used to override statutory limitation
periods?
A
They are clauses, typically in construction contracts, that the construction company will make
good on any defects for a period, usually 1-2 years, after construction.
They are irrelevant to statutory limitation periods, unless they expressly limit the
period and are reasonable per Unfair Contract Terms Act 1977.
Q
16
Pre-action considerations: limitation
Where there is a latent defect, what limitation period is available in addition to the general rule of
six years from the date of accrual?
A
Three years from the earliest date on which the claimant knew or ought reasonably to
have known material facts necessary to bring an action
Q
Pre-action considerations: limitation
17
Is it possible to expressly shorten a limitation period in a contract?
A
Yes, but this will be subject to reasonableness requirements under the Unfair Contract Terms Act
1977 (see contract law slides on exclusion causes)
18
Q
Pre-action considerations: limitation
Procedurally, when does time (1) begin to run relative to the date the cause of action accrues
and (2) stop running?
A
1.The day after the date of accrual
2.When the claimant delivers the properly completed claim form to the court with
a request to issue together with the appropriate fee
Q
19
Pre-action considerations: limitation
What occurs if the limitation period expires on a day when the court office is closed?
A
The action will still be on time as long as the documents/fee are filed on the next business day
Q
Pre-action considerations: limitation
20
Is it possible to add a new party to proceedings after the limitation period has expired?
A
No, unless an application to disapply the limitation period is made to the court
Q
21
Pre-action considerations: limitation
After the expiry of the limitation period, is it possible to amend the name of a mistakenly
spelled/identified defendant in proceedings which were originally filed on time?
A
Yes
Q
22
Pre-action considerations: limitation
When does the limitation period begin to run where a claimant is a minor?
A
On their 18th birthday
Q
23
Pre-action considerations: limitation
When does the limitation period begin to run where a claimant lacks capacity at the time
of accrual?
If a claimant has capacity at the time of accrual and subsequently loses capacity, is the clock
paused?
A
When they are certified as being of sound mind
The clock is not paused
24
Q
Pre-action considerations: limitation
When does the limitation period begin to run in cases of (1) fraud or concealment or (2) relief
from the consequences of a mistake?
Pre-action considerations: protocols and applications
A
When the claimant discovers the fraud/concealment or mistake, or could have done so with
reasonable diligence
25
Q
Pre-action considerations: protocols and applications
What is the purpose of the pre-action protocols?
Do protocols have the same status as Civil Procedure rules?
A
To focus the parties on trying to settle the dispute without litigation
No, protocols are not rules
26
Q
Pre-action considerations: protocols and applications
Where no specific protocol exists, what will the courts expect a litigant to follow, and what four
things does it require?
A
Practice Direction on Pre-Action Conduct and Protocols
1.Claimant should write to defendant with concise details of claim
2.Defendant should respond within a reasonable time (14 days if straightforward case;
no more than 3 months if complex)
3.Parties should disclose key documents
4.Court must give permission before an expert can be relied on
27
Q
Pre-action considerations: protocols and applications
What four things should a letter of claim under the Personal Injury Protocol include?
What claims does the Personal Injury Protocol not apply to?
A
1.Summary of facts
2.Details of injuries and impact on day to day life
3.Hospital attended, with reference number
4.Indication of financial losses as known at this stage
Clinical negligence
28
Q
Pre-action considerations: protocols and applications
Within what timeframe must a defendant respond to a letter of claim under the Personal Injury
Protocol?
What is the purpose of this timeframe, and in what situation is it waived, meaning the claimant
can issue proceedings within the timeframe?
A
21 days
It allows defendant to make a settlement offer, and is waived if the limitation period will expire
within the 21 days
29
Q
Pre-action considerations: protocols and applications
Under the Personal Injury Protocol, if the defendant responds to the letter of claim within 21
days, how long do they have to investigate the claim?
What is the claimant’s option if the defendant does not respond to the letter of claim within 21
days?
A
Three months
Claimant can issue proceedings
Q
30
Pre-action considerations: protocols and applications
How long does the defendant have to disagree with a list of suggested experts that the claimant
must send under the Personal Injury Protocol?
What is the situation if no joint expert can be agreed upon?
A
14 days
Each party can instruct their own expert
31
Q
Pre-action considerations: protocols and applications
What are the consequences of not complying with any pre-action protocol?
Does the court have discretion to relieve a party of their obligation to comply with the protocols?
A
1.Stay the proceedings to allow the Practice Direction or a step in a protocol to be
complied with
2.Order the non-compliant party to pay costs, or pay higher interest on damages
3.If the non-compliant party is the claimant,limit the amount of interest on the claim
Yes
Q
32
Pre-action considerations: protocols and applications
What are three situations where the court is unlikely to criticise issuing proceedings without
following a protocol?
A
1.Where the end of the limitation period is close
2.Where a court order is required to protect or preserve evidence or assets
3.Where there is concern the defendant may seek to issue proceedings in another
country
33
Q
Pre-action considerations: protocols and applications
Where the parties are likely to get embroiled in proceedings, what two criteria must be satisfied
for pre-action disclosure to be available?
What is required for pre-action disclosure from a non-party?
A
1.The documents would be disclosed under standard disclosure rules
2.Disclosure now would assist in disposing the claim without proceedings
Disclosure from non-party would support claim or adversely affect opponent’s case, and is
necessary to dispose of the matter or to save costs
34
Q
Pre-action considerations: protocols and applications
One of what two criteria must be satisfied for pre-action disclosure of property?
A
The property is:
1.Or may become the subject matter of proceedings
2.Relevant to the issues that will arise in proceedings
35
Q
Starting proceedings: choice of court
How are proceedings commenced?
A
Completing a claim form, which is then issued by the court and served on the defendant by
either the court or the claimant’s solicitor
If court is to serve, claimant must include one copy of the complaint for each defendant and one
for the court
36
Q
Starting proceedings: choice of court
Although most cases must be started in County Court, what is the claim value threshold for a
case to be started in the High Court in the context of personal injury, and all other cases?
A
Personal injury: £50,000
All other cases: £100,000
Although a claim exceeding £100,000 could be started in the County Court
Q
Starting proceedings: choice of court
37
What are three reasons why a claim might be best suited to the High Court?
A
1.Financial value/amount in dispute
2.Complexity of the case
3.Importance of the outcome of the claim to the public in general
These factors can also be used to determine appropriateness of starting a £100,000+ claim in
County Court, e.g. is it low-complexity or unimportant to public despite high value
Q
38
Starting proceedings: choice of court
Where a known debt is owed (specified claim), what is the special procedure for claiming this in
the County Court?
What is the monetary threshold within which this procedure can be availed of?
A
Complete a money claim form which will be issued by the (now called) Civil National Business
Centre (CNBC) in Northampton.
Threshold is £100,000
The Civil National Business Centre in Northampton is where most other claims will also begin
Q
39
Starting proceedings: choice of court
Following receipt of a defence or admission, where will the CNBC normally transfer the claim if
defendant is (1) an individual and (2) a company?
A
Defendant is individual: Hearing centre closest to D’s home
Defendant is company: Claimant’s preferred hearing centre
40
Q
Issuing proceedings
What seven things must a claim form contain?
A
1.Names/addresses of parties
2.Details of claim
3.Value of claim and remedy sought (if specified claim, specify the amount of the debt)
4.Claimant’s preferred court
5.Fees and costs
6.Particulars of claim (optional as can be served on its own within 14 days of service of
the claim form)
7.Statement of truth
Q
41
Issuing proceedings
What is considered a full name for the purposes of the claim form for:
(1) an individual,
(2) an individual carrying on business a sole trader,
(3) a general partnership, and
(4) a limited liability partnership or company?
A
1.Individual: Full unabbreviated name
2.Individual carrying on business: Full unabbreviated name with their trading as
name
3.General partnership: Full name of partnership with “(a firm)”
4.LLP/company: Registered name
Q
42
Issuing proceedings
What will a claim for damages always be, even if the claimant is able to itemise their loss in great
detail?
A
An unspecified claim
Q
43
Issuing proceedings
If the claim is for damages, what must the claimant state on the claim form?
Why?
A
What range they expect to recover in
For the purposes of and using the same ranges as allocating to a track
44
Q
Issuing proceedings
In estimating value of a claim, what should the claimant focus on and what should they
disregard?
A
Focus on: What the claimant is claiming for damages
Disregard: Interest, costs, contributory negligence, any counterclaim
45
Q
Issuing proceedings
What are the two court fees and what are the thresholds for each to apply?
A
Case over £10,000 but less than £200,000: 5% of claim value
Claims over £200,000: Fixed fee of £10,000
46
Q
Issuing proceedings
What are the two options for including the Particulars of Claim?
A
1.Include on back of claim form, or
2.Produce as a separate document and either serve with claim form, or within 14 days
following service
47
Q
Issuing proceedings
Who usually signs the statement of truth?
A
The claimant, but the solicitor may sign it
48
Q
Issuing proceedings
What is a Part 8 claim?
A
A claim which does not involve a substantial dispute of the facts
49
Q
Issuing proceedings
What four things must a Part 8 claim state?
A
1.That Part 8 applies
2.Questions the claimant wants the court to decide
3.Details of the claim being made
4.Capacity of the representative if claim is made in a representative capacity
50
Q
Issuing proceedings
What two things must be served with a Part 8 claim form?
A
1.Witness evidence, supported by a statement of truth
2.Particulars of claim
Note for a regular claim, the Particulars can be included in the claim form, included as a separate
document with the claim form, or served separately within 14 days of service of the claim form.
For Part 8, the Particulars must be included in the claim form
51
Q
Issuing proceedings
What are the consequences for a defendant who fails to respond to a Part 8 claim?
A
They cannot take part in the hearing, unless the court gives permission
52
Q
Service of proceedings
Why is service of a claim a critical step?
A
Because it triggers the defendant’s obligation to respond
53
Q
Service of proceedings
Within how long of issue must a sealed claim form be served on the defendant where they are:
(1) within the UK and
(2) outside the UK?
What is this period known as?
A
In the UK: Four months
Outside the UK: Six months
It is known as the claim form validity period
54
Q
Service of proceedings
If a claimant wishes to apply to have the claim form validity period extended, within what time
period must the application be made?
Only in what circumstances will the court grant it?
A
Application must be made within the original validity period
Exceptional circumstances
Q
Service of proceedings
55
Where a claimant’s solicitor as opposed to the court will serve proceedings:
What must the claimant ensure is enclosed, otherwise the court won’t deem service effective?
A
The response pack
Q
56
Service of proceedings
Where the defendant has nominated solicitors to accept service:
On whom must proceedings be served where (1) defendant is an individual, and (2) defendant is
a company?
What is allowed if the defendant has not nominated solicitors to accept service?
A
Individual: Must be served on solicitors, otherwise ineffective
Company: May be served on solicitors, or also may be delivered or posted to the company’s
registered address
If the defendant has not nominated solicitors to accept service, the claimant may serve the
defendant personally
Q
57
Service of proceedings
How is personal service effected where the defendant is:
(1) an individual;
(2) a company; and
(3) a partnership being sued in the firm name?
A
Leaving proceedings with:
1. The individual being served
2. Any person holding a senior position
3. A partner; or any person who had control or management of the partnership business at the
principal place of business at the time of service
58
Q
Service of proceedings
What are the three requirements for service to be sent by fax?
A
1.Express consent in writing, even if already communicating by fax
2.Party has given a fax number to be contacted on
3.Fax number is within the jurisdiction
The requirement that a party must give a fax number to be contacted on can be satisfied by a
fax number on the firm’s writing paper, unless an express indication to the contrary is
given
59
Q
Service of proceedings
What are the two requirements for service to be sent by email?
A
1.Express consent, even if already communicating by email
2.Party has given an email address to be contacted on
60
Q
Service of proceedings
What are the three requirements for service to be sent by DX?
A
1.Party’s address for service contains a DX number
2.DX number is on the party’s writing paper
3.No express indication that service by DX is not acceptable
61
Q
Service of proceedings
What is the step required to effectuate service in the case of (1) post or DX, (2) fax, or (3) other
electronic method?
A
1.Post or DX: post, or leave with service provider
2.Fax: complete fax transmission
3.Other electronic method: send email or transmission
Q
62
Service of proceedings
When is the claim form deemed to be served, and does this depend on the method used?
A
Irrespective of method used, the claim form is deemed served on the second business
dayafter the step required to effectuate service
63
Q
Service of proceedings
As an aside, what is a business day per the Civil Procedure Rules?
A
Any day other than Saturday, Sunday, a bank holiday, Good Friday, or Christmas Day
Q
64
Service of proceedings
What should a claimant do if they believe a defendant no longer lives at an address?
After these steps, what can the claimant do?
A
Take reasonable steps and make reasonable enquiries to ascertain the defendant’s current
address
If they still cannot ascertain, claimant can serve on the defendant’s last known address
Q
Service of proceedings
65
If a defendant wishes to argue that service of proceedings was invalid, where do they indicate
this and within what time period must they make an application?
A
Indicate on acknowledgement of service, and make an application to set aside service within 14
days.
66
Q
Service of proceedings
If the claimant’s solicitor is serving proceedings, within what time period must they file a
certificate of service?
A
21 days
Q
67
Service of proceedings
What must a claimant show to the court to be granted an order to permit service by alternate
means or in an alternative place?
A
Good reason for the order, e.g. service might not be achieved within the validity period
This order can be retrospective and serve to greenlight previous steps taken to serve
Q
68
Service of proceedings
Even though the Particulars of Claim must be served within 14 days of service of the claim form:
What must happen if this 14-day period would take the claimant beyond the validity period, i.e.
four/six months from issue depending on where defendant is?
A
The Particulars of Claim must be served within the validity period
Q
69
Responding to a claim
Within what time of the date of deemed service of the Particulars of Claim must a defendant
respond to a claim?
A
14 days
Claimant can obtain judgment in default if defendant does not respond by this time
Q
70
Responding to a claim
What is the deemed date of service for first class post, services with next day delivery, and
document exchange, where Particulars are not included with the claim form?
A
The second day (as long as it is a business day) after it was posted, left with, delivered to, or
collected by the relevant service provider. If not a business day, then the next available business
day
71
Q
Responding to a claim
What is the deemed date of service for personal delivery, fax, electronic service, and personal
service, where Particulars are not included with the claim form?
A
On the business day it is left at the address, transmitted, or served personally if this is before
4.30pm. If not, the next business day
72
Q
Responding to a claim
What are the three things a defendant can do in their response?
A
1.Admit part or all of the claim
2.File and serve a defence to the claim, and possibly a counterclaim
3.Acknowledge service and indicate they propose to defend the claim
Admissions can be withdrawn with court permission
Q
Responding to a claim
73
If the defendant files an acknowledgement of service, how much additional time from the filing
are they given to respond?
A
14 more days
14 days to respond acknowledging service, plus 14 days additional
74
Q
Responding to a claim
How can this possible 28 day time limit to respond be extended, and what is the maximum
extension?
A
By agreement of the parties. For a further 28 days but not to exceed 56 days in total from
the date of deemed service
14 days to respond acknowledging service, plus 14 days additional, plus 28 further days if parties
agree
75
Q
Responding to a claim
When will a defendant not have to file an Acknowledgement of Service?
A
If they file a defence within 14 days of service of the Particulars of Claim
However it may still be advisable to file an acknowledgement to have more time to work on a
defence, as it extends the initial deadline for service of the defence from 14 days to 28 days from
service of the Particulars of Claim
76
Q
Responding to a claim
What three things can the defendant achieve on the Acknowledgement of Service form?
A
1.Indicate intention to dispute, but claim additional 14 days
2.Admit some of the claim but ask for time to pay
3.Dispute the jurisdiction of the court
If the defendant disputes the court’s jurisdiction, they must make such an application supported
by written evidence, within 14 days of filing the acknowledgement. Defendant must also not file
a defence, as this could be deemed submitting to the court’s jurisdiction.
77
Q
Responding to a claim
What can the claimant do when the defendant files an acknowledgement of service?
A
Make an application for summary judgment or apply for an interim payment
Summary judgment: defendant has no real prospect of defending the claim
Q
78
Responding to a claim
What can the claimant do when the defendant fails to respond to service within 14 days, or
within the extended time limit?
A
Make an application for default judgment
79
Q
Responding to a claim
If the claimant is granted judgment in default because of the defendant’s failure to respond, the
defendant must show one of what two things to have default judgment set aside?
A
1.They have a real prospect of successfully defending the claim, or
2.Some other good reason why the judgment should be set aside
80
Q
Responding to a claim
What are the four ways in which a default judgment could have been wrongly entered?
A
1.Judgment entered before time limit expired
2.Application for judgment came after an application by defendant to strike out/dismiss
the claim, and this application hasn’t yet been considered
3.Claim already paid or settled
4.Defendant already submitted a request to pay which has not yet been considered
81
Q
Responding to a claim
What happens if the defendant admits the whole claim, and the amount at issue is a specified
sum?
A
The court will issue a judgment for the amount
Admissions under £25,000 are binding
82
Q
Responding to a claim
If a defendant admits a claim during the protocol, what is the monetary threshold below which
such an admission will be binding?
A
£25,000
83
Q
Responding to a claim
If a defendant wishes to withdraw an admission, what five things will the court consider in
determining whether to grant permission for this?
A
1.Prejudice to the parties
2.Reasons the admission was made
3.Stress the party was under when they made the admission
4.Interests of the public
5.The timing of the application of the application to withdraw
84
Q
Statements of case
What is the purpose of the Particulars and what must it provide to be adequate?
A
Provide an outline of the party’s case on liability, causation, and quantum to allow the judge to
give proper directions
85
Q
Statements of case
What should the particulars include in a contract claim?
A
 Parties to the agreement
 Nature of the agreement
 Terms that claimant alleges the defendant breached
 Facts showing breach and loss
Q
Statements of case
86
What should the particulars include in a negligence claim (1) generally and (2) arising from a
road traffic accident?
A
Negligence
* Description of events
* Details of injury, with medical records
* Allegations of negligence (duty owed, defendant fell below standard)
* Schedule of past and future losses
* Prayer for relief
* Statement of truth
Additional for Road Traffic Accident
* Brief description of the collision (date, time, place)
* Details of any criminal conviction arising from the collision
87
Q
Statements of case
What should the particulars include in an employers’ liability claim in tort?
A
 Facts establishing employer-employee relationship
 Description of events
 Establish duty owed and breached
 Details of injury
 Schedule of past and future losses
 Prayer for relief
 Statement of truth
88
Q
Statements of case
What must a claimaint do when they are claiming interest on damages?
A
State the:
1. Basis for the interest claim, i.e., contract, statute
2. % interest rate if the claim is for a specified sum
89
Q
Statements of case
What eight things must a claimant include in the Particulars if they wish to rely on them?
A
1.Allegations of fraud
2.Illegality
3.Misrepresentation
4.Breach of trust
5.Knowledge of a fact
6.Unsoundness of mind or undue influence
7.Willful deceit
8.Defendant’s failure to mitigate loss
Q
Statements of case
90
If a defendant wishes to defend a claim, on whom must they serve the defence?
A
Every other party to the claim
91
Q
Statements of case
What are the three ways in which a defendant can respond to each of the paragraphs in the
particulars?
A
1.Admit
2.Deny
3.Non-admission
Admitted claims are no longer in dispute and the claimant no longer has to prove them. Failure
to respond means a claim is deemed admitted
92
Q
Statements of case
What must a defendant do if they deny a paragraph?
A
State reasons for doing so, or set out an alternate version of events
If they simply dispute the claimant’s statement of value, they should explain why, and provide an
alternate value. In a personal injury claim, if they don’t agree with the medical report, the
defence must state this.
93
Q
Statements of case
When may a defendant neither admit nor deny a paragraph?
A
When the facts alleged in the paragraph are outside the defendant’s knowledge
94
Q
Statements of case
What happens when the defendant admits damages but denies liability?
A
They are admitting a damages sum, but it will only be payable if the court finds the claim is
proved
Q
95
Statements of case
What must the defendant do if they raise a limitation issue in the defence?
A
State the date on which the defendant alleges the limitation period expired, with the reasons why
Q
96
Statements of case
What is a reply, is it mandatory, and when will it typically be used?
Can a reply be used to rectify mistakes in or omissions from the particulars?
A
A reply is an optional response sent by claimant to defendant, usually only if something has
been raised in the defence which requires a response
No, it can only be used to deal with points raised in the defence which were not covered by
the particulars
97
Q
Statements of case
What are the four types of claim available to a defendant under Part 20?
A
1.Counterclaim
2.Claim against a third party
3.Claim seeking contribution or indemnity
4.Counterclaim against a third party
98
Q
Statements of case
What are the four key features/requirements of a counterclaim?
When is court permission required and not required to file a counterclaim?
A
1.Brought by existing defendant against the claimant within the same proceedings
2.Arises out of the same or substantially the same facts as the claimant’s claim
against defendant
3.Monetary claim in its own right
4.Is not a defence
Permission not required if counterclaim is filed with defence. Permission required after this time.
99
Q
Statements of case
What is a claim against a third party under Part 20, and what are three features?
A
Defendant claims a person who is not a party to the case has caused the claimant’s losses
1.New party will be called a third party
2.Application can be made without notice, unless directed otherwise
3.Particulars of the third party claim must be contained in or served with the third party
claim form (no option for them to follow as with an initial claim)
Court permission the same as counterclaim
100
Q
Statements of case
What is a claim seeking contribution or indemnity under Part 20?
A
Defendant claims that if they are found liable to the claimant, another party to the claim (usually
another defendant) is liable to repay some of the amount (contribution) or all of the
amount (indemnity)
Court permission the same as counterclaim and third party claim, except that permission not
needed after defence if contributing/indemnifying party was not added until later in the case and
the contributing/indemnifying party is served within 28 days of filing their defence
101
Q
Statements of case
What is always required for a counterclaim against a third party under Part 20?
A
Court permission
102
Q
Statements of case
How is an additional Part 20 claim served in cases where permission is not required?
How is an additional Part 20 claim served if issued later than this time?
A
It is served on each party to the claim when the defence is filed
It must be served on the person against whom it is made within 14 days
Q
Statements of case
103
Within what timescale of service must a defence to a Part 20 claim be served, and what is the
consequence of failing to do so?
A
Within 14 days of service of the counterclaim. Failing that, the original defendant can
obtain default judgment on the counterclaim
104
Q
Statements of case
Where additional claims are brought by the defendant, what must the additional party do where
(1) they are already a party to the case, and (2) they are not already a party to the case?
A
1.File a defence, if already a party
2.File an acknowledgement and/or defence, if not already a party
Same rules apply to them as the original defendant at the beginning
105
Q
Statements of case
If a party wishes to make a request for information from the other side, do they need to go
through the court for this?
A
Only if the party does not adequately respond within a reasonable time
If a party objects to a request for information, they should respond providing reasons why
106
Q
Statements of case
What are five grounds for objecting to a request for information?
A
1.Unnecessary, irrelevant, or improper
2.Unable to provide information/clarification
3.Insufficient time to reply
4.Disproportionately expensive to reply
5.Privilege
Something is relevant if it relates to matters which are disputed by the parties
107
Q
Statements of case
What is required to amend a Statement of Case before it has been served, and after it has
been served?
A
Before: Can be amended at any time without permission
After: Written consent of all parties or court permission required
108
Q
Statements of case
What must the court be convinced of to add a party to a case?
A
Adding the party will allow the court to resolve all the matters in the case or resolve a connected
matter
109
Q
Statements of case
What are the two requirements which must be satisfied for a court to grant an
application substituting a party?
A
1.Existing party’s interest or liability has passed to the new party (e.g. assignment,
merger) and
2.Desirable to substitute the new party, so the court can resolve all matters in dispute
110
Q
Statements of case
What is required to add or substitute a party after the limitation period has expired?
A
1.Relevant limitation period must have been live when proceedings were started, and
2.The addition or substitution is necessary
Necessary can come from: new party substituting for a party named in the claim by mistake; or
original party has died or is bankrupt
Q
111
Case management
In determining the value of the claim, what four things will the court ignore?
A
1.Sums not in dispute
2.Interest
3.Costs
4.Contributory negligence
112
Q
Case management
To reiterate, what are the thresholds on the small claims track for:
(1) claims generally
(2) road traffic accidents
(3) personal injury if the value of pain, suffering and loss of amenity is below a threshold, and
(4) personal injury generally?
A
1.£10k
2.£5k
3.£5k
4.£1k
Q
Case management
113
When might the court allocate claims with a higher value than the small claims track threshold,
to the small claims track?
A
Parties agree, or less than £10,000 is actually in dispute even if the claim is for more
114
Q
Case management
Unless the other side has behaved unreasonably, what costs can be recovered on the small
claims track, and what is the upper limit for expert fees?
A
Fixed costs and reasonable expenses.
Expert fees limited to £750.
115
Q
Case management
What are the range/threshold on the fast trackfor:
(1) claims generally
(2) road traffic accidents, and
(3) personal injury generally?
What is the other category of case which can be dealt with on the fast track?
A
1.£10k - 25k
2.£5k - 25k
3.£1k - 25k
Cases with no monetary value
116
Q
Case management
If a case is allocated to the fast track, within what time limit must the trial take place?
A
30 weeks
117
Q
Case management
In what two ways is evidence restricted on the fast track?
A
1.Court prefers written rather than oral evidence
2.Use of single joint expert is encouraged
Witness statement stands as evidence in chiefmeaning it has the same weight as if the witness
had testified in court
118
Q
Case management
In the fast track, what must costs be in order to be recoverable?
A
Proportionate to the amount in dispute
Parties must submit cost schedules ahead of the costs hearing
119
Q
Case management
What is the monetary threshold and what is the time threshold for a case to be put in the multitrack?
A
 Claim exceeds £25k, or
 Lesser value but trial will last more than one day
120
Q
Case management
What is the Directions Questionnaire, and what does it ask?
Within what time limit must the parties complete and return it?
A
Questionnaire sent by the court with the Notice of Allocation in a fast track or multi-track case,
which asks:
* Estimated trial length
* Estimated trial costs
* Whether parties complied with protocols
* Whether experts will be required
* Names of witnesses
28 days of receiving the Notice of Allocation, and cannot be extended
121
Q
Case management
At what stage is a Directions Order made?
What does it set out?
A
Once the case is allocated to the small-claims or fast tracks
(Multi-track directions are usually given at the Case Management Conference)
The schedule for how the case will progress: disclosure, witness statement exchange, expert
reports, trial, etc.
122
Q
Case management
What are two notable directions which will be given on the small claims track?
A
1.Documents to be exchanged 14 daysbefore hearing
2.No expert may be used without express permission
Q
123
Case management
If a party is not happy with the directions given by the court, within what time limit must they
apply for the directions to be varied?
What should the innocent party do if the other party defaults on the directions?
A
14 days
Make an immediate application to the court for an unless order
124
Q
Case management
When a Case Management Conference is listed on the multi-track, within what time limits before
the conference must the parties file:
(1) disclosure reports, and
(2) costs budgets?
A
1.Disclosure report: 14 days
2.Cost budget: 7 days
Q
125
Case management
Where a party has defaulted on directions, and the innocent party has made an application to
court about this, what is one type of order that the court will typically make which gives the party
an opportunity to comply, and what is the impact of this?
A
The court will make an unless order, which specifies a penalty which will be imposed unlessthe
party complies with the direction
126
Q
Case management
Where a party has defaulted on directions, what are three other options available to the court?
A
1.Impose a costs order, including indemnity costs, or increased interest
2.Require the defaulting party to pay money into court
3.Debar a party from relying on evidence
127
Q
Case management
Where a party has a good reason for non-compliance and applies for relief from sanctions, what
two things will the courts consider?
A
1.Seriousness of the breach, and
2.Reasons for the breach
128
Q
Interim applications
What is an interim application?
How soon should they be made?
A
Any pre-trial application made to the court which requires a judicial decision
As soon as it is apparent that it is necessary or desirable
129
Q
Interim applications
What is true of an interim application if there is already another hearing listed in the matter?
A
It should be raised at that hearing, if possible
130
Q
Interim applications
Unless there is good reason why notice should not be required, what notice of an interim
application must be given to parties (1) generally, and (2) if over the telephone?
What is an example of a good reason?
A
1.Three clear days
2.Five clear days
Notice would provide the other party an opportunity to dispose of evidence or assets
Q
Interim applications
131
Other than what two types of orders would it be extremely unusual to not give notice of an
interim application?
Where an interim application is made without notice, what must it include?
A
1.Freezing injunction
2.Search order
Evidence explaining the good reason
132
Q
Interim applications
What three things must be served on the non-applicant party if an order is granted based on
a without-notice application?
A
1.The order
2.Application notice
3.Supporting evidence
133
Q
Interim applications
If an order is granted based on a without-notice application, within what time limit of being
served must the non-applicant party apply to vary or set aside the order?
A
7 days
134
Q
If a party makes an interim application without notice erroneously, what type of order will
the court dismiss it with, and what is the effect of this?
A
A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent
associated with the application
135
Q
Interim applications
What should be true of evidence relied on in support of an interim injunction?
A
It should be in writing and filed at court within the relevant time limit
136
Q
Interim applications
What two things does the applicant have to file and serve on the court within 2 days of the
hearing on the interim application?
A
1.Case summary
2.Proposed draft order
137
Q
Interim applications
What is the difference between default judgment and summary judgment?
A
Default judgment: Defendant has failed to acknowledge service or file a defence on time, not
related to strength of defence
Summary judgment: Other party has weak case and there’s no other reason to have the trial
138
Q
Interim applications
What are the two criteria which the applicant must satisfy when applying for summary
judgment?
Before when can the claimant not make an application for summary judgment?
A
1.Other party has no reasonable prospect of success, either their claim or
defence,and
2.No other compelling reason why the case should proceed
Before defendant receives particulars and serves either an acknowledgement or defence, i.e.
claim must be live from defendant’s point of view
Q
139
Interim applications
In an application for summary judgment, what are the three time periods before the hearing
before which:
(1) Applicant must serve written evidence in support of the application on the other party
(2) Other party must serve evidence in response, and
(3) Applicant must serve any further evidence in response to (2)?
A
1.14 days
2.7 days
3.3 days
Same for interim payments
140
Q
Interim applications
What is the difference between an application to strike and summary judgment?
A
Application to strike: goes to procedure
Summary judgment: goes to merits
141
Q
Interim applications
What are three things for which the court will grant an application to strike?
A
1.Statement of case discloses no reasonable grounds for bringing/defending claim
2.Statement of case is an abuse of court process
3.Failure to comply with a rule, practice direction, or order
142
Q
Interim applications
What are the three conditions, one of which is required for an order of interim payment to be
made?
Are interim payments mandatory or discretionary?
A
1.Defendant has admitted liability
2.Claimant has obtained judgment but the sum to be paid is not yet assessed; or
3.The court is satisfied that if the action proceeded to trial, the claimant would obtain
judgment for a substantial sum (and in cases with multiple defendants, from at least
one of them and each carries insurance)
Discretionary, and the court will not grant one if it would cause an injustice
Q
143
Interim applications
Before making an application for interim payment, what should the applicant do?
Before when can the claimant not make an application for interim payment?
A
Request that the defendant make a payment voluntarily
Before defendant receives particulars and serves either an acknowledgement or defence, i.e.
claim must be live from defendant’s point of view
144
Q
Interim applications
In an application for interim payment, what three things must the claimant’s written evidence
contain?
Does claimant need to demonstrate need?
What additional thing should be included in a personal injury claim?
A
1.Sum of money sought
2.Items and matters in respect of which payment is sought
3.An estimate of the final judgment
No
Medical records should be attached to estimate of judgment; and a schedule of loss with details
of past and future loss
Q
145
Interim applications
In considering an application for interim payment, will the court consider contributory negligence,
set off, counterclaims?
A
Yes
Q
Interim applications
146
What is an injunction?
What are the two types?
When is an injunction considered interim, and when is it considered final?
A
A court order that requires a party to do or stop doing something.
Mandatory and prohibitory
Interim if made before trial; final if at trial
Q
147
Interim applications
In the context of an injunction application, what is an undertaking in damages?
A
An undertaking by the person making the application that they will compensate the other party
for any loss suffered if the court later determines that the injunction should not have been
granted
148
Q
Interim applications
How can a party apply to have the injunction discharged?
A
By applying on notice to a judge of the division where the claim is proceeding
149
Q
Interim applications
What are the three grounds that can be argued in support of an application to discharge an
injunction?
A
1.Applicant did not disclose all information when applying, or did not comply with its
terms, or failed to prosecute claim with speed
2.Relief is oppressive, or not justified
3.Material change in circumstances
Q
150
Interim applications
What is a freezing injunction?
To whom must an application for one be made?
A
A type of prohibitory injunction designed to freeze the assets of the defendant
A High Court judge only
Q
151
Interim applications
What are the three requirements of which a court must be satisfied before granting a freezing
injunction?
A
1.Strong case on the merits
2.Defendant has assets within the jurisdiction
3.Real risk the defendant may dispose of or dissipate those assets before judgment can
be enforced
152
Q
Interim applications
What two things must be true of a freezing injunction?
When will a freezing injunction bind third parties?
A
1.The assets frozen should not exceed the maximum amount of the claim, and
2.The order must state the period of time it will be in effect
When they have knowledge of it
Q
153
Interim applications
What must a defendant offer in order to apply for discharge of a freezing injunction?
A
Security for the value of the claim
Q
Interim applications
154
What is a search order?
To whom must an application for one be made?
A
A last resort order applied for without notice by the applicant if it is clear the defendant will not
obey the rules relating to disclosure, or may seek to destroy evidence, which allows the claimant
to search for and potentially seize this evidence
A High Court judge only; same as freezing injunction
155
Q
Interim applications
What are the three requirements of which a court must be satisfied before granting a search
order?
A
1.Strong case on the merits
2.Defendant’s activities cause very serious potential or actual harm to the claimant’s
interest, and
3.Clear evidence that the property and documents are in the defendant’s
possession and there is a real possibility the material may be destroyed
Q
156
Interim applications
What three things will the independent supervising solicitor who oversees execution of a
search order undertake to do?
A
1.Offer to explain the meaning and effect of the order to the defendant
2.Inform the defendant of their right to seek legal advice and right to apply to vary
or discharge the order, and
3.Prepare a written report on execution and provide it to the claimant’s solicitor and the
court
157
Q
Interim applications
In the context of a search order, what three things will the claimant’s solicitor undertake to
do?
A
1.Return original documents to the defendant within two days
2.Deliver property in dispute to defendant’s solicitors, and
3.Retain all other property securely until the court directs otherwise
Q
158
Disclosure
What does disclosure mean?
For how long does the duty to disclose run and when does it terminate?
A
Clearly identify and inform the other side of the existence of a relevant document
Continues through the whole case and concludes when the case is over
159
Q
Disclosure
What two types of documents must be disclosed?
What must a solicitor do if the client makes it clear they will not comply with the disclosure
requirements?
A
Documents which:
1. Support your case
2. Are adverse to your case
Cease to act
160
Q
Disclosure
How far does the obligation to disclose go?
Does a party need to have possession?
A
A party’s obligation to disclose extends to any document within the party’s control
No, a right to control is sufficient
Q
Disclosure
161
What three criteria, one of which is enough, will determine if a party has control of a document?
A
1.Physical possession
2.Right to take possession, inspect or take copies, or
3.Had the document in their possession but no longer
162
Q
Disclosure
What is the obligation when a document is unavailable or has been destroyed?
Can the court draw an adverse inference from this?
A
Notify the court and other party of its existence, and provide reasons
Yes
Q
163
Disclosure
What is standard that the court will expect a search for documents to meet?
A
The search must be reasonable and proportionate, depending on the nature of the case, its
value, and its importance
164
Q
Disclosure
What are the three sections of the disclosure list which is filed and served on the fast track, as
well as personal injury on the multi-track?
A
1.Documents a party controls that they do not object to the other party inspecting
2.Documents a party controls that they do object to the other party inspecting (along
with reasons)
3.Documents that are no longer in a party’s control
165
Q
Disclosure
Who signs the disclosure statement detailing the extent of the search made?
What is declared in the disclosure statement?
A
The party, not their solicitor
Party understands the duty of disclosure, they have carried it out to the best of their knowledge,
and that they believe the extent of the search was reasonable and proportionate; also explaining
why a particular search was not carried out
Q
166
Disclosure
Under standard directions, within what time limit from that point must the disclosure lists be
served?
Within what time limit should inspection occur?
A
28 days
7 days, for which the party seeking inspection must notify the party with the document
167
Q
Disclosure
What triggers a requirement for specific disclosure and what are the two criteria, one of which
the court must be satisfied of to grant an order?
What should a party do before making an application for specific disclosure?
A
Triggered by a party believing certain documents have not been disclosed.
Court must be convinced the party has documents that may:
1.Contain information that would assist the applicant’s case or damage the respondent’s
case; or
2.Lead to a train of enquiry which has either of those consequences
Make a written request for the documents: describing the document and explaining why it is
relevant, why it is reasonable and proportionate to disclose, grounds for believing the document
exists, and safeguards that can be provided, e.g. redaction
Q
Disclosure
168
Unless challenged, what does disclosure of a document provide?
A
An automatic right to inspect it
169
Q
Disclosure
What are the three grounds for refusing inspection of a disclosed document?
A
1.Privilege
2.Document no longer in party’s control
3.Disproportionate to allow inspection
Q
170
Disclosure
Instead of a disclosure list, what must be filed in non-personal injury cases on the multi-track?
Within what time limit of what event must this be filed?
A
Disclosure report
At least 14 days before the first Case Management Conference, or otherwise with the Directions
Questionnaire.
Q
171
Disclosure
Must a document which is privileged still be disclosed?
A
Yes, but it can be withheld from inspection
172
Q
Disclosure
What are the four types of privilege and the one immunity which functions like a privilege?
Only whom can waive privilege?
A
1.Legal advice privilege
2.Litigation privilege
3.Common interest privilege
4.Without prejudice privilege
5.Public interest immunity
The client
Q
173
Disclosure
What does legal advice privilege protect?
A
Communication between a lawyer and a client in which advice is given or requested within a legal
context
Q
174
Disclosure
What does litigation privilege protect?
Who bears the burden of proving litigation privilege?
A
Communication with third parties (e.g. barristers, experts) relating to preparation of pending or
contemplated litigation
The party seeking to assert it
Q
175
Disclosure
If a document has multiple purposes one of which is preparation for litigation, is it still protected
by litigation privilege?
A
Only if the court decides the dominant purposeis to prepare for litigation
Q
176
Disclosure
What is the one requirement of the common interest for common interest privilege to apply?
Does common interest privilege subsist if there is a subsequent breakdown in the parties’
relationship?
A
The common interest must have been presentat the time of disclosure between the parties
Yes
177
Q
Disclosure
If a solicitor accidentally sends a privileged documents to the other side, what is required for the
other side to use the information?
A
Court permission
178
Q
Witness evidence
What are the two types of witness evidence?
A
1.Direct
2.Circumstantial
Q
Witness evidence
179
What is the general rule for what a witness must have done to be able to give evidence at trial?
A
Signed a previous witness statement setting out their evidence, which is endorsed by a
statement of truth and served on the other party
180
Q
Witness evidence
What is possible if a witness statement cannot be obtained?
A
Party can get court permission to serve a witness summary which identfies the witness and
summarises the factual issues the witness will cover when testifying
Q
181
Witness evidence
What happens if a witness statement is not served, and what is a way around this?
A
Party cannot call that witness, unless they receive court permission by showing good reason for
the failure to serve
Q
Witness evidence
182
If a witness is to be compelled to testify, within what time limit before the hearing must the
witness summons be served by the party calling the witness?
A
7 days
Summons must contain conduct money or it is ineffective
183
Q
Witness evidence
What can the other party do if a party decides not to call a witness who has had a witness
statement served, and how will the court treat what they do?
A
Other party can refer to the statement, but the court will treat this as hearsay
184
Q
Witness evidence
Although hearsay evidence can be oral or in writing, what are the two requirements for evidence
to be hearsay?
A
1.Statement must have been made out of court
2.Statement must be used to prove the truth of what is being stated
Q
Witness evidence
185
When will the contents of a witness statement cease to be hearsay?
A
When the witness thereafter comes to court, their statement plus their answers under crossexamination are all treated as if they were made in court and cease to be hearsay
186
Q
Witness evidence
What six factors will the court consider when determining the weight to apply to a witness
statement entered as evidence where the witness does not come to court?
A
1.Reasonable/practicable to force witness to attend?
2.Original statement made contemporaneous with the event?
3.Single or multiple hearsay?
4.Motive to misrepresent facts?
5.Was original statement edited?
6.Does the situation suggest attempt to prevent proper evaluation of evidence?
187
Q
Witness evidence
If a party wishes to rely on hearsay evidence, what must they do, and what is the effect of the
witness attending the trial on how this obligation must be satisfied?
If the other side wishes to have that witness attend court so that their credibility can be
attacked, within what time limit must they make an application to the court?
A
Must serve notice on the other side. If the witness is attending court, the witness statement
itself constitutes notice.
14 days
188
Q
Witness evidence
What is admissible in any civil case to prove the conduct occurred?
A
Details of a criminal conviction arising from the same events
189
Q
Witness evidence
What are four types of evidence that is inadmissible?
Does the court have discretion to disallow evidence which would otherwise be admissible?
A
1.Opinion evidence, except from experts
2.Evidence that is privileged or protected by public interest immunity
3.Communications that are without prejudice
4.Any evidence which is irrelevant
Yes
190
Q
Witness evidence
What evidence is a lay person allowed to give, even though it may appear to contradict the
general rule that only experts can give opinion evidence?
A
Evidence of facts perceived by them, e.g. their perception of speed in a road traffic accident
191
Q
Witness evidence
One of what three things must occur for a party to have their own witness declared
as hostile by the court?
What is the effect of a witness being declared hostile?
A
1.Witness is unfavourable to the side who called them
2.Lack of cooperation to tell the truth on behalf of party who called them, or
3.Evidence is entirely inconsistent with their witness statement
They can be cross-examined by the party who called them
Q
192
Witness evidence
What is similar fact evidence?
What must it be to be admissible?
A
Evidence of previous incidents or conduct as evidence of similar conduct in the case in question,
e.g. a driver having nine points on their license for three separate instances of running red lights
is evidence that, on balance of probabilities, they ran the red light in this case
Must be relevant to be admissible
193
Q
Expert evidence
What are the two requirements for an expert to give evidence?
A
1.They must be qualified to give the opinion
2.Their expert evidence must be reasonably required to resolve proceedings
Qualified does not mean a formal degree is needed; experience is sufficient
194
Q
Expert evidence
If expert evidence is allowed, what are the three conditions it is still subject to?
A
1.Opinion must stem from special knowledge, skill, or training that is not within
the ordinary experience of a judge
2.Expert must be reasonably certain of their opinion
3.Expert must demonstrate the basis of their opinion and conclusions
Judge will ultimately determine if the witness is truly an expert
195
Q
Expert evidence
What is the duty owed to the court by an expert?
A
To exercise independence, integrity, and impartiality
This overrides their obligation to the person who instructed/paid them
196
Q
Expert evidence
Is the default position that experts will attend court to give their evidence?
A
No, the default is a written report
197
Q
Expert evidence
If a party wishes to have an expert testify in court rather than the default of preparing a written
report, what four conditions must they satisfy?
A
1.Expert oral evidence likely to have an impact on the outcome
2.It will assist the judge
3.Risk of injustice if expert evidence is not tested, and
4.Cost of the expert attending is not disproportionate
198
Q
Expert evidence
What is the difference between an agreed expert in a personal injury case, and a single joint
expert generally?
A
An agreed expert is one chosen by a claimant in a personal injury case. The defendant does
not have to agree to jointly instruct an agreed expert and the defendant retains the right to
instruct their own.
A single joint expert is one where the court has imposed the obligation that parties share an
expert, share the fees whilst the matter is ongoing, and then the losing party will assume
responsibility for paying the expert after the trial.
199
Q
Expert evidence
In what four instances may the court allow parties to have their own expert?
A
1.Complex issues or high value case
2.Parties already have their own expert from pre-action phase and most cost-effective to
retain
3.Number of different schools of thought concerning the issue requiring expert opinion
4.Issue the experts are focusing on has huge significance to the outcome
200
Q
Expert evidence
Is an expert’s report privileged?
A
Until disclosed
Expert’s report need only be disclosed if the party intends to rely on it
Q
201
Expert evidence
What is the time limit from the expert sending the report that the parties can ask questions of
the expert?
A
28 days
Q
202
Trial
If a case is settled before trial, other than via a Part 36 Order, what must the parties do?
A
Record the terms of the agreement in writing in an appropriately worded consent order
Q
203
Trial
What is the usual order used to record settlement?
What is the consequence of not using an order?
A
Tomlin Order
If no order is used, there is no enforceable obligation regarding (i.e. automatic right to) payment.
204
Q
Trial
What are the two parts of a Tomlin Order?
What happens if a party defaults?
A
1.The order, which confirms the parties have agreed settlement and that the case
is stayed pending the settlement terms being carried out, and
2.A schedule confirming the amount to be paid, by whom, and by what date
Proceedings can recommence
Q
205
Trial
What is the maximum word count for the case summary filed before the pre-trial review hearing,
and what three things should it specify?
A
Case summary must not exceed 500 words and should specify:
1. Issues of fact
2. What is in dispute
3. Synopsis of the evidence
206
Q
Trial
How many trial bundles should the claimant’s solicitor prepare, and who bears the expense of
this?
Within what time period before trial should the trial bundles be filed?
A
The claimant’s solicitor must prepare one bundle each for each party and witness, and the
claimant bears the expense of this
Between 3 and 7 days before trial
Q
207
Trial
In what two circumstances will court permission be required to discontinue a case?
What is the costs consequence for the claimant of discontinuing a case?
A
1.Court has granted an interim injunction
2.Claimant has received an interim payment (unless paying party consents)
Claimant liable to pay the defendant’s costs up until that point (subject to cost shifting applicable
to personal injury)
208
Q
Appeals
What is the destination of appeal where the judgment was delivered by:
(1) District Judge
(2) Circuit Judge
(3) Master of the High Court
(4) High Court Judge
(5) Lord Justice of Appeal?
Is there an automatic right to appeal in civil cases?
A
1.Circuit Judge
2.High Court Judge
3.High Court Judge
4.Lord Justice of Appeal
5.Justice of Supreme Court
No
Q
209
Appeals
To where can a party make an application for permission to appeal?
A
1.Lower court where the decision was made
2.To the appeal court
210
Q
Appeals
What are the two grounds to appeal a decision of a lower court?
A
1.Decision is wrong in fact, law, or the exercise of the court’s discretion; and/or
2.Decision is unjust due to serious procedural or other irregularity
Q
211
Appeals
Within what time limit must a party appeal and when does this time begin to run?
A
Within 21 days of the date the judgment or order they are seeking to appeal was handed down
Appeals can be made orally immediately after the judge makes the decision to be appealed
Q
212
Appeals
What is the consequence of not seeking permission from a lower court, and not requesting a
time extension?
A
After 21 days, they can no longer make an application to the court for permission to appeal
213
Q
Appeals
In the case of not seeking permission from a lower court, and not requesting a time extension,
such that application is barred, to what court can a party make a special case that permission
should be applied retrospectively?
How will this court treat the application?
A
Court of Appeal
As a relief from sanctions, requiring the applicant to show good reason for the breach and that
relief is reasonable in the circumstances
Q
214
Appeals
What is an appeal hearing limited to?
Can a party rely on evidence that was not available in the original hearing?
A
A review of the decision of the lower court
Not without permission
Q
215
Costs
What does the indemnity principle provide?
A
A party can not recover more from an opponent than they are liable to pay their own legal
representative
216
Q
Costs
What are the two bases of costs assessment?
A
1.Standard basis
2.Indemnity basis
Q
217
Costs
What occurs under the standard basis of costs assessment?
A
Court allows only proportionate costs and exercises doubt in favour of the paying party
Q
218
Costs
What triggers costs assessment on an indemnity basis, and what occurs under this?
A
Paying party incurring unnecessary costs by their conduct.
The court does not consider proportionality and the paying party cannot object as to costs unless
they are claiming the solicitor shouldn’t have done the work at all.
219
Q
Costs
What are the two ways a party can file their costs budget on the multi-track, depending on the
value of the case?
What is the possible consequence of not filing a budget?
A
1.£50,000 and below: filed with Directions Questionnaire
2.Over £50,000: filed 21 days before Case Management Conference
Costs may not be recoverable, beyond court fees
220
Q
Costs
What are inter-partes costs?
A
A term given to describe the other party’s costs when you are obligated to pay them, to be
distinguished from a party’s own costs
221
Q
Costs
In lower value cases and interim applications, how soon before (1) a hearing, and (2) a trial must
a statement of costs be filed?
A
1.24 hours
2.Two days
Q
222
Costs
What is the starting point for a detailed assessment of costs in a larger value claim, and within
what time limit must the receiving party file this document?
Within what time frame must the paying party file their points of dispute, if any?
A
The receiving party prepares a bill of costs and serves within three months of judgment or
order
21 days
Q
223
Costs
How soon after the issuance of a costs certificate by the court must costs be paid?
A
14 days
224
Q
Who is the only party that can apply for a security of costs order, and what is the logic being
precluding the other party?
A
Defendant, as they cannot stop the claimant bringing proceedings, but the claimant is free to
continually assess whether the defendant is worth suing
225
Q
Costs
What are the five criteria, one of which is enough, which the defendant must satisfy to make an
application for a security of costs order?
A
Claimant:
1.Resides outside jurisdiction
2.Has changed address since claim started with a view to evading consequences of
litigation, or provided no/incorrect address on the claim form
3.Is suing for the benefit of a third-party
4.Is corporate entity and there is reason to believe they won’t be able to pay costs
5.Has taken steps regarding their assets that would make it difficult to enforce a costs
order, e.g. moving them outside the jurisdiction
226
Q
Costs
What is qualified one-way costs shifting in personal injury claims, and what are the three
situations where it will not apply?
When is qualified one-way costs shifting not available?
A
In an unsuccessful personal injury claim, the claimant does not pay the defendant’s costs unless:
1.Claim was fundamentally dishonest
2.Claim was made for the financial benefit of another, or
3.Claim was struck out for disclosing no cause of action, or abuse
Where a claimant refused a Part 36 offer to settle and fails to beat that amount at trial, the
defendant can recover costs up to the level of damages awarded
227
Q
Costs
In addition to improper, unreasonable, or negligent conduct, what are the two criteria for a court
to make a wasted costs order against a solicitor?
Within what time limit of a wasted costs order being made must a solicitor inform their client?
A
1.Conduct caused unnecessary cost, and
2.It is just to make the order
7 days
228
Q
Part 36 offers
What is a Part 36 offer?
Who can make a Part 36 offer and what must they specify in the offer?
A
A formal, without prejudice offer, to settle a claim
Either party can make a Part 36 offer, and they must specify the amount they would be prepared
to pay/accept to settle
229
Q
Part 36 offers
What may the offeror be awarded if they make a Part 36 offer pre-issue and the parties settle
the claim before proceedings begin?
A
Pre-issue costs that they incurred
Q
230
What may the offeror be awarded if they make a Part 36 offer pre-issue but it is rejected by the
other party, and the offeror wins the case?
A
Costs related to pre-action work, in addition to the costs of the litigation
231
Q
Part 36 offers
Can a Part 36 offer be withdrawn?
A
After the expiry of the relevant period, as long as the offeree has not served notice of
acceptance
232
Q
Part 36 offers
If a notice of withdrawal or to change the terms to ones less favourable for the offeree is
served before the expiry of relevant period, when does the notice take effect?
A
When the relevant period expires, unless the offeror accepts within that time (in which case the
offer cannot be withdrawn/amended in the usual way)
233
Q
Part 36 offers
What two things must the court be satisfied of to grant permission to withdraw or amend a Part
36 offer after it has accepted?
A
1.Change of circumstances since the offer was made
2.In the interests of justice to give permission
234
Q
Part 36 offers
How must a Part 36 offer be accepted?
A
In writing
Q
235
Part 36 offers
When can a Part 36 offer be accepted?
A
At any time within the relevant period with no limitations, and after the relevant period as
long as the offeror has not withdrawn the offer
Q
236
Part 36 offers
If a Part 36 offer, made by either party, is accepted within the relevant period, up until when
will defendant pay the costs of the claim, and on what basis will they be assessed?
A
The defendant will pay costs on the standard basis up to the point of acceptance
Q
Part 36 offers
237
If a claimant accepts a defendant’s Part 36 offer outside the relevant period, up until when will
the defendant’s liability to pay the claimant’s costs run?
A
Until the end of the relevant period
238
Q
Part 36 offers
What is required to accept a Part 36 offer from a single defendant in a case with multiple
defendants?
A
Court permission
239
Q
Part 36 offers
What are the two situations where a Part 36 offer might cause cost-related difficulty for a party?
A
1.Claimant rejects defendant’s offer and fails to beat offer
2.Defendant rejects claimant’s offer and claimant is awarded an amount equal to or
greater than the offer
Q
Part 36 offers
240
What are the two situations where a Part 36 offer might will not cause cost-related difficulty for
a party?
A
1.Claimant rejects defendant’s offer and beats it
2.Defendant rejects claimant’s offer and the claimant is awarded less
241
Q
Part 36 offers
Where a claimant rejects a defendant’s offer and fails to beat the offer, what is the consequence?
A
Defendant will have costs awarded on a standard basis from the date when the relevant period
of acceptance expired
Defendant will usually still have to pay costs up to the expiry of the relevant period
Q
242
Part 36 offers
Where a defendant rejects a claimant’s offer and claimant is awarded an amount equal to or
greater than the offer, what is the consequence?
A
Unless it is unjust, for the period after the time for acceptance expired, costs will be assessed
on an indemnity basis and the claimant will be entitled to 10% interest on top of costs accrued
within this period.
243
Q
Part 36 offers
What things will the court consider when determining whether an order for failure to accept a
Part 36 is unjust, such that the court will exercise discretion not to make the order?
A
1.Stage of proceedings when the offer was made
2.Conduct of the parties
3.Whether the offer was a genuine attempt to settle
Q
244
Enforcement of money judgments
What is the annual interest rate of High Court judgments, from when does interest begin to
accrue, and what is this interest in addition to?
A
8%, from the date of judgment, in addition to the any punitive interest the court may award on
the value of the claim
245
Q
Enforcement of money judgments
What is the monetary threshold in County Court, under which interest will not be payable, and
what is the exception to this?
What is the interest rate on County Court judgments above this threshold?
A
£5,000, except for when the dispute is based in contract, and the contract provides for interest
8%, the same as the High Court
Q
246
Enforcement of money judgments
What is the lower limit for a County Court judgment to be enforceable in the High Court?
A
£600
£600 is also the lower limit for a High Court enforcement officer to enforce a High Court
judgment. County Court judgments are enforced by County Court enforcement officers
247
Q
Enforcement of money judgments
Within what period must a judgment creditor (successful party) serve a court order on a
judgment debtor (losing party), for a hearing to examine the debtors means and assets?
What must the judgment creditor also file 2 days before the hearing?
A
14 days
Affidavit providing details of service and how much remains unpaid
Q
Enforcement of money judgments
248
What is a writ of control?
A
A document issued by the High Court where a judgment creditor has requested to execute a
judgment, which is forwarded to the High Court enforcement officer
A warrant of control is the County Court version
249
Q
Enforcement of money judgments
If the creditor wishes to take control of debtor’s goods, how much notice must they give?
Within what period of serving must they take control?
A
Seven days
12 months
250
Q
Enforcement of money judgments
Where only can the creditor’s agent enter?
What must they do regarding goods seized?
A
Can only enter the address stated
Must provide an inventory of the goods, and sell them within 7 days and use the proceeds to
discharge the debt and enforcement costs.
251
Q
Enforcement of money judgments
What two categories of items can the creditor not seize?
A
1.Equipment for use in the debtor’s trade
2.Household items necessary for basic domestic needs
252
Q
Enforcement of money judgments
What is a controlled goods agreement?
A
An agreement whereby the debtor retains custody of the goods on the understanding that
the enforcement officer is taking control, but the debtor agrees not to dispose of them
before the debt is paid
253
Q
Enforcement of money judgments
What is a charging order on land?
A
Where the debtor has an interest in land (even if this is a joint interest), a creditor may obtain a
charge on the property which will rank as an equitable mortgage and gives the creditor the
right to apply for an order for sale
254
Q
Enforcement of money judgments
What is an attachment of earnings order?
A
Where an individual debtor is in regular employment, the order compels an employer to make
regular deductions from the earnings and pay them into court
Must be sought in County Court
1
Q
What are the most likely applications you would have to make in the disputes advocacy
assessment?
A
 Summary judgment
 Set aside default judgment
 Interim payment
 Interim injunction
 Relief from sanctions
 Security for costs
 Strike out
All are discretionary except if default judgment is wrongly entered
2
Q
If you cannot remember the test for the application you are asked to make, what can you fall
back on?
A
Submit that what you are seeking is in line with the overriding objective and the need to conduct
proceedings efficiently and at proportionate cost
3
Q
For the applications where you have done something wrong, e.g. set aside default judgment and
relief from sanctions, what should you do at the beginning of your substantive submissions?
A
Acknowledge the failure, e.g. not responding on time, and apologise to the court
You are an officer of the court, and it is expected you will expressly acknowledge the failure to
comply with court directions
4
Q
Summary judgment
What is the test for summary judgment?
Is the court’s power mandatory or discretionary?
A
 Claim/defence has no real prospect of success, and
 No other compelling reason for the matter to proceed to trial
Discretionary
Q
5
Summary judgment
What does the compelling reason limb refer to?
A
Whether the court has all the information it needs to make a decision on the merits of the
underlying claim
If it does, then there is no reason to waste the court’s time at trial if it can make the call now
Q
6
Default judgment
When is an order setting aside default judgment mandatory for the court to grant?
A
If the judgment in default was wrongly entered, e.g. the time for defendant to respond had not
yet expired
Q
7
Default judgment
In all other cases, what must the defendant show to have default jugment set aside?
A
 Real prospect of successfully defending the claim (i.e. a viable defence), or
 A good reason why the default judgment should be set aside and the defendant be
allowed to defend the claim
A rewording of the summary judgment test, but only one of the options is needed although the
defendant should try to satisfy both
8
Q
Interim payment
What must have occurred before the claimant can apply for an interim payment?
A
Defendant must have filed acknowledgment of service or a defence
9
Q
Interim payment
What must the applicant for an interim payment include in their application?
A
1.Explain what the payment will be used for
2.Request a specific sum
3.Show the sum is a reasonable proportion of the likely damages
4.Consider contributory negligence, etc.
Q
10
Interim payment
Additionally, one of what three conditions must be satisifed in an application for interim
payment?
A
 Defendant admits liability
 If claim went to trial, claimant would be awarded a substantial sum (even if multiple
defendants and application is only made against one - must be insured in this case)
 Claimant has already obtained judgment
11
Q
Interim injunction
What three things must be shown in application for interim injunction?
A
 Serious question to be tried
 Damages would not be an adequate remedy, and
 Balance of convenience favours an injunction
Consider Overriding Objective
Q
12
Interim injunction
What can an applicant offer to support an application for interim injunction?
What is this?
A
An undertaking in damages
The applicant promises to compensate the other side if it turns out that the injunction should not
have been granted
13
Q
Relief from sanctions
What is the three stage test applied when seeking relief from sanctions?
A
1.Seriousness of the breach
if serious:
2.Reason for the breach
3.Consider all circumstances to deal with case justly
Consider Overriding Objective
Q
14
Security for costs
What are four of the grounds, one or more of which must be satisfied when applying for
a security for costs order?
Only whom can apply for security for costs?
A
Claimant:
* Resident outside the jurisdiction
* Corporate body, and reason to believe they will be unable to pay defendant’s costs
* Changed address, failed to provide address, or gave incorrect address with a view to evading
consequences of litigation
* Took steps re: their assets that would make it difficult to enforce an order for costs
Defendant, because claimant is free to discontinue proceedings at any time
15
Q
Strike out
One of what three things must be shown when applying to strike out the other party’s case?
A
 Claim/defence discloses no reasonable grounds for bringing/defending the claim,
respectively
 Claim/defence is an abuse of process, or
 Other failure to comply with a court order or rule
16
Q
Unless order
What two things must you demonstrate when applying for an unless order?
A
Show how:
* Other party is in breach of an order you have complied with
* It is in the interest of the overriding objective
Q
Track allocation
17
What are the three things to show in an application for track allocation?
A
 Set out the facts
 Apply the facts to the track-allocation factors, e.g. value, complexity
 Conclude with a track request
18
Q
Adjournment
When must an application for an adjournmentbe made?
A
Promptly
Applicant must show how they acted promptly
19
Q
Adjournment
As well as acting promptly, what other two things must be shown in an application for an
adjournment/stay?
A
 Why the adjourment/stay is necessary
 Why it is in the interests of the overriding objective
Q
1
The criminal justice system
What are the four categories of offences/cases dealt with by the Crown Court?
Where do all criminal cases begin?
A
1.Indictable only
2.Either way, where Magistrates has declined Jx or D elects for Crown Court
3.Either way or summary, if related to another offence heard by Crown Court and is
punishable by imprisonment or disqualification from driving
4.Appeals against conviction and sentence from Magistrates
Magistrates’ Court
2
Q
The criminal justice system
What are the two summary only offences?
A
1.Assault
2.Battery
3
Q
The criminal justice system
What six offences are triable either way?
A
1.ABH
2.Section 20 GBH
3.Arson
4.All three frauds
5.Burglary, subject to an exception
6.Theft, subject to an exception
4
Q
Theft equal to or below what value is considered summary only, and regarding which Magistrates
Court does not have the power to decline jurisdiction?
A
£200, but D can elect for Crown Court if hewishes
Magistrates Court Act 1980
5
Q
The criminal justice system
What will make burglary indictable only?
A
If it is of a domestic dwelling and:
1.Includes commission or intent to commit an indictable only offence
2.Victim subject to violence or threat of violence, or
3.It is D’s third charge for domestic burglary
6
Q
Advising client at police station
What are five of a suspect’s rights at the police station under Police and Criminal Evidence Act
1984?
A
1.Access to free legal advice, medical help, interpreter
2.Notify someone of their arrest
3.Right to silence
4.Informed of reason for arrest
5.Information on detention time limits
7
Q
Advising client at police station
What are the nine ranks of police officer, from high to low?
A
1.Chief constable
2.Deputy chief constable
3.Assistant chief constable
4.Chief Superintendent
5.Superintendent
6.Chief Inspector
7.Inspector
8.Sergeant
9.Constable
8
Q
Advising client at police station
What are the three criteria for delaying a suspect’s access to legal advice, and what is the
maximum amount of time it can be delayed?
A
Access to legal advice can be delayed for 36 hours at most, if:
1.Suspect is arrested for indictable only or either way offence (i.e. on the exam,
something other than assault, battery, or theft under £200)
2.Superintendent or above has authorised, and
3.Officer has reasonable grounds to believe that exercise of the right will lead to
interference with evidence or others, alerting other suspects, or hindering recovery of
property
Q
9
Advising client at police station
What are the three criteria for delaying a suspect informing someone of their arrest, and what is
the maximum amount of time it can be delayed?
A
Can be delayed for up to 36 hours with the same criteria used as when delaying access to legal
advice, except an inspector (officer two ranks below a superintendent) is able to make the
decision for this
10
Q
Advising client at police station
What is the relevant time, and what is the general rule for how long after this time a suspect
can be kept in custody without being charged?
A
The relevant time is when the suspect entered the police station, and the general rule is 24
hours
11
Q
Advising client at police station
Where extensions apply, what is the maximum time a suspect can be kept in custody without
being charged?
A
96 hours
12
Q
Advising client at police station
What are the four criteria for the first 12 hourcustody extension?
A
1.Suspect is arrested for indictable only or either way offence
2.Superintendent or above has authorised
3.Reasonable grounds to believe that further detention is necessary to
secure/preserve/obtain evidence
4.Investigation is being conducted diligently and expeditiously
13
Q
Advising client at police station
What is required for the remaining 60 hours of extensions, and how are they broken up?
A
Application to Magistrates Court is needed.
1.Further 36 hours granted on the first application (72 hours total)
2.Final 24 hours granted on second application
14
Q
Advising client at police station
When must an identification procedure be held under PACE?
A
Witness:
1.Identified a suspect not known to them
2.Expresses abilility to identify suspect
3.Has reasonable chance of identifying suspect
Q
15
Advising client at police station
What are a suspect’s two rights in relation to the conduct of an identification procedure?
A
1.To have the purpose, and obligations and consequences of their decisions explained
2.Legal advisor/solicitor/friend present
16
Q
Advising client at police station
What two consequences must be explained to a suspect in relation to an identification
procedure?
A
1.Suspect does not have to cooperate, but the procedure can still be conducted covertly
and if they fail to cooperate, an adverse inference may be drawn
2.If between being notified of the procedure and the procedure itself, a suspect changes
their appearance, that an adverse inference may be drawn
17
Q
Advising client at police station
With regard to video identification and identification parades, what conditions must be
met?
A
1.Other participants must resemble suspect physically and distinguishing features must
be concealed
2.Suspect must have chance to raise reasonable objections
3.Witness must be warned that the suspect may not even feature
18
Q
Advising client at police station
What could four possible objections to the conduct of a video identification or identification
procedure be?
A
1.Failure to take into account reasonable objections
2.Failure to keep witness away from suspect
3.Failure to keep witnesses apart
4.Failure to warn witness that suspect might not be present
19
Q
Advising client at police station
In what situation should a suspect not be interviewed?
PACE governs interviews
A
When they seem unable to appreciate the significance of the questions or answers or
understand what is happening, due to intoxication or any other incapacity
20
Q
Advising client at police station
Do the police have a duty to provide the solicitor with any evidence?
A
No, but they must provide enough detail for the solicitor to understand the nature of the offence
and the reasons why the suspect is under suspicion
Q
21
Advising client at police station
What is the warning that must be given when being advised of the right to remain silent?
A
That if a suspect fails to mention in an interview something that they could reasonably have been
expected to mention, an adverse inference may be drawn by the court
Q
22
Advising client at police station
What is a special caution, and what will trigger the requirement for one?
A
If suspect was at the scene of the offence, or had an object, substance, or mark on their person
at the time of arrest, they must be cautioned regarding what offence is being investigated and
that an adverse inference may be drawn if they fail to give an explanation for their presence or
the object, mark, or substance
Q
23
Advising client at police station
What safeguard is absolutely required when a suspect is deemed vulnerable?
A
Access to an appropriate adult who is not affiliated with the police, taking into account the
wishes of the suspect
24
Q
Advising client at police station
What things will be considered oppression or inducement?
A
Oppression: Too many officers in the room, room with improper heat, light, and ventilation
Inducement: Promises of anything, including just a warning, if they confess
25
Q
Bail
As defendants have a general right to bail (except for murder or attempted murder), what two
things are required to remand a defendant in custody at a court hearing?
A
1.Exception to the right to bail must apply, and
2.Real prospect of custodial sentence being imposed
Q
26
Bail
What are five of the exceptions to the right to bail?
A
1.Substantial grounds for believing D will fail to surrender, commit further offences, or
interfere with witnesses
2.D charged with either way/indictable offence tand was on bail at the time of
commission
3.Already serving a sentence
4.Insufficient information to make a decision on bail
5.D has failed to surrender in the same proceedings previously
27
Q
Bail
What factors will the court consider when determining a bail application?
A
1.Nature and seriousness of the offence, and the likely penalty
2.D’s:
* character (+/-)
* associations (+/-)
* previous convictions (-), and
* community ties (+)
Q
28
Bail
What is the standard for adding conditions to bail, and what are some common conditions?
A
Conditions must be relevant, proportionate, and enforceable
1.Requiring D to reside at specified address
2.Requiring D to report to a local police station at specified intervals
3.Prohibiting D from going to a particular area or contacting certain individuals
4.Requiring D to comply with a curfew, wear an electronic tag, or provide monetary
security for bail
Q
29
Bail
What must be shown in order for a defendant charged with murder to secure bail?
A
No significant risk that the defendant would commit an offence likely to cause physical or mental
injury to another person
Q
30
Bail
How often must a court consider bail?
A
At each hearing
Q
Bail
31
However, only how many times many a defendant make a further application on the same facts
and submissions?
A
One additional time
32
Q
Bail
Thereafter, what is required for a defendant to make an additional bail application?
A
Change of circumstance, relating to the case generally or defendant
33
Q
Bail
What is happens if a defendant breaches their bail conditions?
A
They can be arrested without a warrant, have their bail revoked, or have stricter conditions
attached
Q
34
First hearings before the Magistrates
What happens at the first court hearing in the Magistrates where the offence is (1) summary
only, (2) either way, or (3) indictable only?
A
1.Summary: D pleads guilty or not guilty
2.Either way: Court proceeds to plea before venue process
3.Indictable: Matter is sent immediately to the Crown Court for trial
35
Q
First hearings before the Magistrates
For summary only offence, what happens if the defendant’s plea is (1) guilty and (2) not guilty?
A
Guilty: Court proceeds immediately to sentencing
Not guilty: Court will set a trial date and order disclosure
36
Q
First hearings before the Magistrates
Whose decision alone is the plea?
Who can advise but must never instruct?
A
The defendant’s alone
The solicitor can advise on the strength of evidence, likely sentence (including reduction for
pleading guilty), further steps, and court procedure, but should never tell D how to plead
Q
37
First hearings before the Magistrates
What is a representation order?
A
An order sought by a solicitor representing a defendant who is not privately funded
38
Q
First hearings before the Magistrates
What is the two part test for a representation order, i.e. to receive legal aid?
A
1.Means test
2.Interests of justice test
39
Q
First hearings before the Magistrates
When will the means test generally be satisfied?
A
If defendant is:
* Under 18
* In receipt of income support
Q
First hearings before the Magistrates
40
When will the interests of justice test generally be satisfied?
A
If defendant is:
* Likely to lose liberty or livelihood
* Suffer serious reputational damage
* Unable to understand proceedings or state their own case
If the case:
* Requires determination of substantial question of law
* Involves tracing witnesses or interviewing them
Q
41
Plea before venue
What is plea before venue?
A
Procedure where defendant appears at the Magistrates Court charged with an either way
offence, and is asked how they would like to plead
42
Q
Plea before venue
If the defendant pleads not guilty or gives no indication, what must the Magistrates decide, and
what two factors will they consider in doing so?
A
Whether the offence can be dealt with in the Magistrates Court, or if the Crown Court is more
appropriate, considering:
1.D’s previous convictions
2.Whether the court’s sentencing powersare adequate to deal with the conduct alleged
or if Crown Court should deal with it
Magistrates Court Act 1980
Q
43
Plea before venue
When deciding their plea, the defendant can request an indication as to what, and what is this
known as?
If an indication is given, and the defendant then pleads guilty, is the court bound to follow what
they said?
A
Whether the sentence would be custodial or non-custodial if they were to plead guilty (but the
court is under no obligation to provide this indication).
A Goodyear indication.
Yes. Not bound if defendant maintains non-guilty plea
Q
44
Case management and pre-trial hearings
Within what time of the case being sent from Magistrates does plea and trial preparation
hearing (arraignment) take place in the Crown Court?
A
28 days
45
Q
Case management and pre-trial hearings
In the Crown Court, within what time limit must prosecution complete disclosure, and what is this
extended to if defendant is on bail?
What evidence must the prosecution disclose?
A
50 days. 70 days if D on bail.
Any evidence it intends to rely on at trial, and anything it doesn’t intend to rely on but
could reasonably be considered to undermine the prosecution case or assist the
defence case
46
Q
Case management and pre-trial hearings
After the prosecution has made disclosure, how long does the defence have to serve a defence
case statement on the prosecution and the court?
A
28 days
Q
47
Procedures to admit and exclude evidence
In what situation must Turnbull guidelines be followed?
A
When a case wholly or substantially relies on identification evidence and the evidence is disputed
by defendant
48
Q
Procedures to admit and exclude evidence
What are the eight Turnbull guidelines given to the jury (or trier of fact in Magistrates) to
consider in evaluating the weight of the identification evidence?
ADVOKATE
A
 Amount of time for which the witness observed the suspect
 Distance between W and S
 Visibility at the time
 Obstruction between W and S?
 Known or unknown (S to W)
 Any particular reasons to remember
 Time lapse between incident and ID
 Errors in W’s first description
Q
49
Procedures to admit and exclude evidence
If, having considered the Turnbull guidelines, the judge concludes the evidence is weak, what
must occur?
A
The case must be withdrawn and an acquittal entered
50
Q
Procedures to admit and exclude evidence
When giving a Turnbull warning to the jury at the end of the trial, what three things should
the judge do?
A
1.Warn of special need for caution before convicting based on ID evidence, as mistaken
Ws can be convincing
2.Ask jury to consider circumstances in which W identified D
3.Specifically refer to objective weaknesses in the evidence, considering ADVOKATE
Q
51
Procedures to admit and exclude evidence
Can the defendant be convicted on the basis of an adverse inference alone?
A
No
Q
52
Procedures to admit and exclude evidence
What actually triggers the adverse inference drawn from not mentioning (at arrest, questioning,
or charge) something which defendant could reasonably have been expected to mention?
A
Putting forward this explanation at trial
Adverse inferences are dealt with by Criminal Justice and Public Order Act 1994
53
Q
Procedures to admit and exclude evidence
From what two things can the jury also draw an adverse inference?
A
1.Failure to give evidence in your defence at trial, unless excused by physical/mental
condition
2.Defendant’s failure to account for the elements for which a special caution would be
given (mark, object, presence at crime scene)
Q
54
Procedures to admit and exclude evidence
What is hearsay?
A
Statement, not made in oral evidence, relied on as evidence of the matter of the statement
Q
55
Procedures to admit and exclude evidence
Although generally inadmissible, what are the four categories under which hearsay is admissible
under the Criminal Justice Act?
A
1.Statute
2.Case law
3.Agreement of all parties
4.In the interests of justice
56
Q
Procedures to admit and exclude evidence
What are five of the categories under which hearsay evidence is admissible under statute?
A
1.Witness is unavailable
2.Business document adduced
3.Statements were prepared for use in the criminal case and relevant person cannot
recollect
4.Previous consistent or inconsistent statement of a witness
5.Confession
57
Q
Procedures to admit and exclude evidence
When is a witness deemed unavailable?
A
1.Dead
2.Unfit due to physical/mental condition
3.Outside UK and not reasonably practicable to return
4.Unable to be found despite steps taken
5.Witness is in fear
58
Q
Procedures to admit and exclude evidence
What are the two requirements for a business document to be adduced in exception to the rule
against hearsay?
A
1.Created/received in the course of trade
2.Person who supplied the information has personal knowledge of the matter
59
Q
Procedures to admit and exclude evidence
What are the three categories under which hearsay evidence is admissible under case law?
A
1.Confessions, or statements part inculpatory and part exculpatory
2.Statements made at the time of the event
3.Statements preserved by res gestae
Q
60
Procedures to admit and exclude evidence
What are the three categories of res gestae statements which are admissible in exception to the
general rule against hearsay?
A
Statements:
1.Made when a person is so emotionally overpowered, the idea of fabrication can be
disregarded
2.Accompanying an act which can only be properly evaluated with reference to the
statement
3.Relating to physical or mental state at the time of the statement
61
Q
Procedures to admit and exclude evidence
What is multiple hearsay?
In additions to all parties agreeing and in the interests of justice, what are the two situations in
which multiple hearsay will be admissible?
A
Hearsay within hearsay, where statement is relayed through more than one person before
getting to court
1.Business document; 2. Consistent or inconsistent statement
Q
62
Procedures to admit and exclude evidence
What is the definition of confession?
What is required for a confession to be admissible?
A
Any statement, wholly or partly adverse to the person who made it, whether made to a
person in authority or not, and whether made in words or otherwise
It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue
63
Q
Procedures to admit and exclude evidence
What are the two bases on which the defence can challenge the admissibility of a confession?
A
1.Mistake, i.e. the listener misheard
2.Untruth
If untruth is made out and not disproven, the evidence must be excluded
Q
64
Procedures to admit and exclude evidence
In what situations can confessions be challenged based on untruth?
When the admissibility of a confession is challenged, who bears the burden?
A
If obtained by oppression or by things said or done likely to render the confession unreliable, and
the defence can show a causal linkbetween the conduct and the confession and the confession
would not otherwise have been made independently
Prosecution must prove beyond a reasonable doubt that the conduct does not apply
65
Q
Procedures to admit and exclude evidence
In what situation does the court have discretion to exclude any evidence offered by the
prosecution?
What is the high bar to reach before the court will exercise its discretion to exclude prosecution
evidence for fairness?
A
If it appears, considering all the circumstances, that admission of the evidence would have
an adverse effect on the fairness of the proceeding, e.g. evidence obtained via illegal
search, or improper ID procedures
Breaches must be significant and substantial, such that they have rendered the evidence
unreliable
66
Q
Procedures to admit and exclude evidence
Aside from agreement of the parties, what are five of the grounds for admitting bad character
evidence?
A
1.Relevant to important matter in issue between prosecution and defence, including
propensity to commit similar offences or be dishonest
2.Defendant attacked another’s character
3.Important explanatory evidence, including of prior offences
4.Correct a false impression given by defendant
5.Matter in issue between co-defendants
Admitting bad character evidence is dealt with by the Criminal Justice Act 2003
67
Q
Procedures to admit and exclude evidence
Only when can bad character evidence showing a propensity for untruthfulness be admissible?
A
If untruthfulness or dishonesty is part of the offence
68
Q
Procedures to admit and exclude evidence
What is the higher threshold for bad character evidence to be admissible due to a matter in issue
between co-defendants?
A
It must have substantial probative value, not just be relevant
Q
69
Procedures to admit and exclude evidence
If the prosecution wishes to introduce bad character evidence, within how long of entry of a not
guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?
A
1.Magistrates Court: 20 business days
2.Crown Court: 10 business days
Defence must object within 10 business days
70
Q
Procedures to admit and exclude evidence
To which two grounds to admit bad character evidence does a special procedure apply?
A
1.Important matter in issue between P and D
2.D attacked another’s character
71
Q
Procedures to admit and exclude evidence
What is the special procedure for admission when the ground for admitting bad character
evidence is either important matter in issue between prosecution and defence
or defendant attacked another’s character?
What is the similar general exclusion which applies to all seven grounds for admitting bad
character evidence?
A
If the defendant makes an application to exclude on these grounds, the court must not
admit it if it appears that admitting the evidence would have such an adverse effect on the
fairness of the proceedings, that they must not do so
Dealt with under PACE
The court may refuse to admit any evidence for the same reason: if it appears that admitting
the evidence would have such an adverse effect on the fairness of the proceedings, that they
must not do so
Q
72
Procedures to admit and exclude evidence
Therefore, what is the difference between the adverse effect relief available generally, and in
the two specific instances of important matter in issue between prosecution and defence
or defendant attacked another’s character?
A
Generally: When there would be an adverse effect on the fairness of the proceedings,
court may refuse to admit the evidence
Two specific grounds: When there would be an adverse effect on the fairness of the
proceedings, court must refuse to admit the evidence, if D applies
Q
73
Procedures to admit and exclude evidence
When is a defendant entitled to a good character direction from the judge?
What are the two parts of this?
A
If D has no previous convictions, or there are previous convictions, they are old, minor, or not
related to the current charge
The good character direction is made up of the propensity direction and
the credibility direction.
74
Q
Procedures to admit and exclude evidence
What is the propensity direction and what is the credibility direction?
A
Propensity direction: Person of good character is less likely to have committed an offence
Credibility direction: Person of good character is more likely to tell the truth when they assert
their innocence
75
Q
Procedures to admit and exclude evidence
Even if the defendant has no previous convictions, in what situation will a good character
direction probably not be available?
A
If there is other bad character evidence upon which the prosecution relies
Judge has discretion
76
Q
Trial procedure
What does the (1) competence and (2) compellability of a witness go to?
A
1.Whether they are allowed to give evidence
2.Whether they can be forced to give evidence
77
Q
Procedures to admit and exclude evidence
A witness will be deemed to not be competent if they are not able to do what two things?
A
Unable to:
1.Understand questions put to them as a witness
2.Give answers which can be understood
Q
78
Procedures to admit and exclude evidence
What is true of all competent witnesses, other than the defendant, the defendant’s spouse/civil
partner, and co-defendants?
A
They are compellable
Q
79
Procedures to admit and exclude evidence
With regard to the defendant’s competence and compellability, what is the situation for the
prosecution and defence?
A
Prosecution:
D is neither competent nor compellable
Defence:
D is competent but not compellable
Remember the jury can still draw an adverse inference
80
Q
Procedures to admit and exclude evidence
What must generally be true before the jury will hold the failure to give evidence against the
defendant?
A
The jury must think the only sensible explanation for the decision not to give evidence is that the
defendant has no answer to the case against them, or no answer that would have stood up to
cross examination
Q
81
Procedures to admit and exclude evidence
With regard to the competence and compellability of the defendant’s spouse or civil partner,
what is the situation for the prosecution and defence?
What is the situation if the married couple are no longer together?
A
Prosecution:
Spouse is competent but not compellable (unless exception applies)
Defence:
Spouse is competent and compellable, unless jointly charged
It is as if they were never married, and the spouse is treated as a normal witness
82
Q
Procedures to admit and exclude evidence
What must the offence for which defendant is being prosecuted involve before the spouse or civil
partner of the defendant can be compelled by the prosecution?
A
Offence involves:
1.Assault, injury, or threat of injury to the spouse or a child under 16
2.Sexual offence on a child under 16
3.Attempting, conspiring to commit, aiding, or abetting either 1 or 2
Q
83
Procedures to admit and exclude evidence
Can an adverse inference be drawn from the spouse’s failure to give evidence?
A
No
Q
84
Procedures to admit and exclude evidence
With regard to the competence and compellability of co-defendants, what is the situation for the
prosecution and defence?
What happens where a co-defendant pleads guilty or the charges against them are dropped?
A
Same as the defendant
Prosecution:
Co-D is neither competent nor compellable
Defence:
Co-D is competent but not compellable
They become an ordinary witness
85
Q
Procedures to admit and exclude evidence
What is a submission of no case to answer and when is it made?
A
At the end of the prosecution case, the defence may argue that the prosecution has not
presented enough evidence to amount to a prima facie case, either:
1.By failing to adduce evidence of one or more of the elements or the offence, or
2.If the evidence is so unreliable that no reasonable bench, judge, or jury could convict
Q
86
Procedures to admit and exclude evidence
What are the two possible professional conduct issues which could arise when representing a
defendant?
A
1.D tells solicitor they did it, but wants to plead not guilty
2.D tells solicitor they didn’t do it, but wants to plead guilty
87
Q
Procedures to admit and exclude evidence
Where the defendant admits that he did it to the solicitor, but wishes to plead not guilty, what is
the solicitor limited to doing?
A
Testing the strength of the prosecution case only, and must not put forward a positive defence or
any suggestion that the defendant did not do it
Q
88
Procedures to admit and exclude evidence
Where the defendant admits that he did not do it to the solicitor, but wishes to plead guilty, what
is the solicitor not able to do and why?
A
They will not be able to put forward anything in mitigation which suggests the defendant did not
commit the offence.
Because they must not mislead the court, and when a defendant pleads guilty, they are
accepting guilt.
89
Q
Procedures to admit and exclude evidence
What does a solicitor have a duty to assist the court on and what do they not have a duty to
assist the court on?
A
Duty to assist: Points of law
No duty to assist: Missing or misinterpreted facts, as long as they themselves do not mislead the
court
90
Q
Procedures to admit and exclude evidence
What must a solicitor do if they are representing two defendants and a conflict arises?
A
Cease to act for at least one defendant, and they can only continue to represent one if the duty
of confidentiality to the other one would not be compromised
91
Q
Sentencing principles
What must be true for the court to depart from sentencing guidelines if they exist for an offence?
A
Following them must be against the interests of justice
92
Q
Sentencing principles
What are three aggravating factors which mustbe taken into account on sentencing?
A
1.Previous convictions, having regard to their nature and time passed
2.Offence committed on bail
3.Motivated by protected characteristic of victim
93
Q
Sentencing principles
What are nine aggravating factors which may be taken into account on sentencing?
A
1.Premeditation
2.Committed in a group
3.Vulnerable victim
4.Drunk or on drugs
5.Abuse of position of trust
6.Weapon
7.Gratuitous violence
8.Victim providing public service
9.High value or sentimental nature of property
94
Q
Sentencing principles
What are seven mitigating factors which maybe taken into account on sentencing?
A
1.Impulse
2.Provocation
3.Disability/mental illness
4.Very young/old
5.Minor role played
6.Motivated by fear
7.Reparation to victim
95
Q
Sentencing principles
What is the totality principle the court will consider when sentencing?
A
Overall sentence must be not be disproportionate to the overall seriousnessof the offence
Q
96
Sentencing principles
Under the totality principle, when will sentences for multiple offences generally be served (1)
concurrently and (2) consecutively?
A
1.Offences are connected and arise out of the same matter, and the defendant is
found guilty of more than one
2.Offences did not arise out of the same matter
Q
97
Sentencing principles
What reduction in sentence will the defendant receive if they plead guilty at the first available
opportunity?
What reduction in sentence will the defendant receive if they plead guilty at any other time
during trial?
A
One third off
A reduction, but less than one third
Q
98
Sentencing principles
What does the custody threshold test provide, which must be passed before a custodial
sentence can be imposed?
What sentences can the (1) Magistrates Court and (2) Crown Court suspend, and how can can
they be suspended for?
A
No offender should be sentenced to a custodial sentence unless the offence (or series of
offences) is so serious that neither a fine nor a community order will suffice
Magistrates Court can suspend a six month sentence and Crown Court can suspend a two year
sentence, both for a maximum of two years
99
Q
Sentencing principles
When is a Newton Hearing held?
A
When a defendant wants to plead guilty on a specified basis because they accept their culpability
but do not agree with the full facts set out by the prosecution, a Newton hearing will be held if
the prosecution disputes the defendant’s account
100
Q
Sentencing principles
What happens if a Newton hearing is settled in (1) the prosecution’s favour and (2) the
defendant’s favour?
A
Prosecution’s favour: Defendant loses 1/3 credit for pleading guilty
Defence’s favour: Defendant retains 1/3 credit
Q
101
Appeals
Do the prosecution have a general right of appeal in Magistrates Court?
A
No
They can appeal to the Divisional Court of the High Court by way of case stated
Q
102
Appeals
Within what time of conviction in Magistrates Court must the defendant lodge a written notice of
appeal with either the Magistrates or Crown Court?
If defendant pleaded guilty in Magistrates’ Court, only where can they appeal?
A
15 working days
Crown Court
Q
103
Appeals
Why does the defendant not have to set out the basis of appeal if convicted in either court?
A
Appeal is the defendant’s right and the court has no power to decline jurisdiction
Q
104
Appeals
Who hears an appeal from Magistrates’ Court, and what does the hearing consist of?
Can the Crown Court change the sentence imposed by the Magistrates’ Court?
A
Crown Court judge, supported by at least two and no more than four magistrates.
It is a complete rehearing, meaning new evidence can be called.
Yes, but they are limited to the sentencing powers of the Magistrates’ Court
105
Q
Appeals
Who may appeal from the Magistrates Court to the Divisional Court of the High Court by way of
case stated?
On what grounds?
A
Prosecution and defence
Decision is wrong in law or exceeds the jurisdiction of the court
Q
106
Appeals
Within what time of decision in Magistrates Court must the application for a case stated appeal
be made in writing?
In a case stated appeal, is there a rehearing of evidence?
A
21 days
No
107
Q
Appeals
If a defendant seeks leave to appeal a Crown Court conviction/sentence to the Court of Appeal,
within what time of the conviction must the application be made?
A
28 days, where a single CoA judge will decide whether to grant the appeal
108
Q
Appeals
What is the single basis on which a defendant can appeal a Crown Court conviction?
A
It is unsafe
109
Q
Appeals
In what situations could a claim be made that a Crown Court conviction is unsafe?
A
1.Evidence wrongly admitted or excluded
2.Direction wrongly given or omitted
3.Trial judge showed bias, exercised discretion wrongfully or made errors in summing up
4.Problems with the jury
110
Q
Appeals
On what three bases can a defendant appeal a Crown Court sentence?
Where sentence is appealed from Crown Court to Court of Appeal, can the Crown Court sentence
be exceeded?
A
1.Wrong in law
2.Wrong in principle
3.Manifestly excessive
No
Q
1
General
Where the defendant wishes to rely on an exception within an element of an offence, or when
raising some defences, they will have to prove it. What is the standard to which they must
prove?
A
Balance of probabilities
Q
2
General
What defences must the prosecution disprove?
A
Self-defence, and loss of control
3
Q
General
What must the jury be to convict someone beyond a reasonable doubt?
A
The jury must be sure that the defendant did it
4
Q
General
What are the two requirements for a failure to act to amount to a criminal offence?
A
Defendant:
1.Had a duty to act
2.Breached the duty by failure to act sufficiently
Q
General
5
What are the five situations in which a duty to act will arise?
A
1.Statute, e.g. to stop at scene of accident
2.Special relationship, e.g. parent-child, doctor-patient
3.Voluntarily assumed duty of care for victim
4.Contract, e.g. railway guard
5.Defendant created dangerous situation and is aware of having done so
6
Q
General
What are the two stages in the test for causation?
A
1.Factual causation
2.Legal causation
Q
7
General
What does factual causation consider?
A
Whether the result would have occurred but forthe defendant’s conduct
Q
General
8
If there is more than one cause, and defendant’s action slightly accelerates the result, is there
sufficient factual causation?
A
Yes
Compare with legal causation under which the cause must be substantial
9
Q
General
What is the purpose of legal causation?
A
The prevent factual causation test from being overinclusive, where issues like lack of
foreseeability would make conviction unfair
Q
10
General
What are the two requirements of a defendant’s action before it will be a legal cause?
A
It must be:
1. Substantial, i.e. more than minimal, slight, or trifling, and
2. Operative, i.e. actually cause the result (will be negated by a more substantial intervening act
or event)
Q
11
General
When will medical treatment break the chain of causation?
A
When the treatment is so bad that the original injury becomes the background
(i.e. the treatment becomes the new operative cause)
12
Q
General
What is required for intervention of the following parties to break the chain of causation?
1.Defendant
2.Natural event
3.Victim
4.Third party
A
1.Defendant: New act
2.Natural event: Unforeseeable
3.Victim: Voluntary, and unforeseeable, i.e. so daft as to be unforeseeable
4.Third party: Free, deliberate, and informed
Q
13
General
What are the two types of intention?
A
1.Direct
2.Indirect (oblique)
14
Q
General
When will a defendant (1) directly intend an outcome and (2) indirectly intend an outcome?
A
1.When the outcome is the defendant’s aim or purpose
2.When the outcome is a virtually certain consequence of the act, and the
defendant realises this
15
Q
General
What are the only offences indirect intention is available for?
What is available instead of indirect intent for basic intent offences?
A
Specific intent offences only, not basic intent
Recklessness
Q
General
16
What is a specific intent offence?
A
An offence which can only be committed with intent, not recklessness
17
Q
General
As an important aside, is attempt a specific or basic intent offence?
A
Specific intent, even if the offence attempted is a basic intent offence.
This means that you cannot commit attempt recklessly and to sustain a conviction, it must be
shown that the defendant had the specific intent to commit the offence they were attempting.
18
Q
General
What is the doctrine of transferred malice?
What is the limitation on transferred malice?
A
If defendant has intent to commit an offence against victim A, but inadvertently commits the
offence against victim B, the intent is transferred and the offence is completed in the same way
The offence must be the exact same, e.g. the intent to commit a battery whilst throwing a rock
at someone’s head would not transfer and sustain a criminal damage charge if the rock actually
breaks a window instead.
19
Q
General
Where a person is guilty of a crime under transferred malice, what other crime will they usually
also be guilty of?
A
Attempt against victim A
20
Q
General
What is the two step test for recklessness?
A
1.Defendant foresees any risk from the act, and
2.In the circumstances subjectively known to the defendant, this is
an objectivelyunreasonable risk to take
21
Q
General
What is the three-step test for negligence in criminal law?
A
Defendant:
1. Owes a duty a care,
2. Breaches by falling below the expected standard of care
and
3.
The breach causes the harm
Same as tort
Q
22
General
What is not available in the case of strict liability offences, and why?
A
Defences that negate state of mind, because state of mind is irrelevant to strict liability
23
Q
General
Who is a principal offender?
When are two defendants both considered to be principal offenders?
A
Person who commits the actus reus and has the relevant mens rea at the same time
If they act together for a common purpose, in committing the act
Q
24
General
What is an innocent agent situation, and who is liable?
A
Where a defendant asks another do something the defendant knows will amount to an offence,
but the other person is unaware, defendant can still be guilty as a principal
25
Q
General
What are the ways in which accessorial liability can arise?
A
1.Aid
2.Abet
3.Counsel
4.Procure
Q
26
General
What is abetting?
A
Encouraging or inciting an offence at the scene of the crime
Q
27
General
Under the doctrine of joint enterprise, when might a secondary participant in a crime be treated
as a principal?
A
When the secondary participant assists or encourages the commission of a crime andintends that
the crime be committed
28
Q
Homicide
What are the four steps for the crime of murder?
A
A defendant commits murder when they:
1.Cause
2.The death of another human
3.Unlawfully
4.With intent to kill or cause GBH
Dead means medically brain-dead
Q
29
Homicide
When can the physical act causing murder be an omission?
A
When the defendant has a duty to care for the victim
30
Q
Homicide
Is a fetus a human being for the purposes of murder?
A
No
31
Q
Homicide
When does voluntary manslaughter arise?
A
When actus reus and mens rea of murder are made out, but there are partial defences available
to the defendant to reduce their liability
Defendant did it on purpose but has an excuse
32
Q
Homicide
What partial defences will reduce murder to voluntary manslaughter?
Are they only available to a murder charge?
A
1.Diminished responsibility
2.Loss of control
Yes
33
Q
Homicide
What are the four requirements for diminished responsibility?
Who must prove diminished responsibility and to what standard?
A
1.Defendant had abnormality of mental functioning
and the abnormality must:
2.
Arise from a recognised medical condition
3. Substantially impair their ability to understand their conduct, form rational judgment,
or exercise self-control, and
4. Provide an explanation for the killing
Defendant, on balance of probabilities
34
Q
Homicide
What is loss of control the modern name for, and what are the two requirements for it?
Who must prove loss of control and to what standard?
A
Provocation
1.Loss of control was caused by a qualifying trigger, and
2.A hypothetical person in the defendant’s position might have reacted the same way
The prosecution must prove beyond reasonable doubt that defendant did not lose control
35
Q
Homicide
What are the two things which amount to a qualifying trigger?
What is specifically excluded as a qualifying trigger?
A
1.Fear of serious violence from victim against defendant or another identified person
2.Something said or done constituting a circumstance of an extremely grave
character which gave defendant a justifiable sense of being wronged
Revenge, and discovering sexual infidelity (unless paired with taunting)
36
Q
Homicide
When does involuntary manslaughter occur and what are the two types?
A
When the mens rea of murder is not made out
1.Unlawful act manslaughter
2.Gross negligence manslaughter
Defendant did it but not on purpose
37
Q
Homicide
When does unlawful act manslaughter arise?
A
Defendant, with the relevant mens rea, commits a dangerous criminal offence, that carries
an objective risk to the victim and they die as a result
38
Q
Homicide
What are the four requirements of the act for unlawful act manslaughter to apply?
Can unlawful act manslaughter be committed by omission?
A
1.D must intend the act
and the act must be:
2.Unlawful
3.Dangerous and
4.The cause of death (applying factual and legal causation)
No
Q
39
Homicide
When does gross negligence manslaughter arise?
A
Defendant does not commit an offence or knowingly take a risk, but breaches a duty in such
an extremely negligent way that they are deemed criminally culpable
There must be a serious and obvious risk of death, whether or not D realises.
40
Q
Homicide
What are the three elements of gross negligence manslaughter?
Can gross negligence manslaughter be committed by omission, and why?
A
1.D owes duty of care to victim, breaches it and it causes death
2.Serious and obvious risk of death (whether or not D was aware)
3.Breach was so bad as to give rise to criminal culpability
Yes, because it is based on a duty, and where there is a duty to act, failure to do so will be a
breach
41
Q
Non-fatal offences against the person
When does assault occur?
Does the victim need to be afraid?
A
When defendant intentionally or recklessly causes another person to apprehend immediate
unlawful personal force (i.e. a battery)
No. Apprehension goes to belief, not fear.
42
Q
Non-fatal offences against the person
How can words (1) amount to and (2) negate an assault?
A
1.If they cause the victim to believe a battery is imminent
2.When they stop the victim from believing a battery is imminent
43
Q
Non-fatal offences against the person
Can a conditional threat be an assault?
A
Yes, because victim can have the apprehension that the battery will occur if the condition is met
44
Q
Non-fatal offences against the person
How is intent and recklessness applied to assault?
A
Intent: Defendant intends the victim to apprehend a battery, or
Recklessness: Defendant foresees the risk that their actions could make the victim apprehend a
battery and this risk is unreasonable
45
Q
Non-fatal offences against the person
When does battery occur?
Can indirect contact amount to battery?
A
When defendant intentionally or recklessly applies unlawful personal force to another person
Yes, contact can be direct and indirect (unlike tort where it must be direct)
46
Q
Non-fatal offences against the person
What is an example of how battery can be delayed?
A
If defendant sets a trap for the victim, which eventually causes unlawful force to be applied to
the victim
47
Q
Non-fatal offences against the person
How can a battery arise by omission, and why?
A
Defendant applies force accidentally without intent or recklessness, but then refuses to remove
the force, because at this point the actus reus and mens rea merge
48
Q
Non-fatal offences against the person
What are the two requirements to consent to assault or battery?
A
Consent must be:
1.Expressed or implied to defendant, and
2.Given by someone with sufficient capacity, freedom, and information to make an actual
choice
49
Q
Non-fatal offences against the person
What is the actus reus of section 47 assault occasioning actual bodily harm?
What is actual bodily harm?
A
Same as assault or battery plus causing actual bodily harm
Any hurt or injury, more than merely trifling, which interferes with the health or comfort of the
victim, including psychiatric injury
50
Q
Non-fatal offences against the person
How can simple assault lead to a charge of ABH?
Does a defendant need to intend to cause or be reckless as to ABH?
A
If defendant reasonably harms themselves while escaping the battery they are apprehending
because of the defendant’s assault
No
51
Q
What is the actus reus for both section 20 and section 18 wounding or inflicting grievous
bodily harm?
A
Causing a wound or grievous bodily harm
52
Q
Non-fatal offences against the person
What is a wound?
A
An injury where both layers of skin are broken (bruising not enough)
53
Q
Non-fatal offences against the person
What are the two types of GBH offence, and which is more serious?
A
1.Section 20 GBH
2.Section 18 GBH (more serious)
54
Q
Non-fatal offences against the person
What is the mens rea for the less serious section 20 GBH?
A
Intention to cause, or recklessness regarding, some harm
55
Q
Non-fatal offences against the person
What are the two mens rea options for the more serious section 18 GBH?
What is the effect of the second option?
A
1.Intent to cause serious harm, or
2.Recklessness as to some harm and intention to resist lawful arrest
Under option 2, section 20 GBH is essentially upgraded to the more serious section 18 just
because you intended to resist arrest
Q
Non-fatal offences against the person
56
What are the four situations where consent to ABH or GBH is allowed?
A
1.Surgery
2.Body modification
3.Religious practices
4.Sports (as long as not too far outside the rules)
57
Q
Non-fatal offences against the person
What are the three requirements to consent to ABH, or either GBH?
A
Consent must be:
1.Expressed or implied to defendant in a legally recognised manner, and
2.Given by someone with sufficient capacity, freedom, and information to make an actual
choice, and
3.Must concern a legally valid category of consent, otherwise consent is invalid
58
Q
Theft offences
What are the elements of theft under section 1 of the Theft Act 1968?
A
Dishonest appropriation of the property of another with intent to permanently deprive them of it
59
Q
Theft offences
What is appropriation?
In a shop, when does appropriation occur?
A
Any assumption of any right of the owner relating to the property
When the item is picked up, even if no mens rea at that time
Q
60
Theft offences
Can the actus reus and mens rea occur at separate times and still make out the offence of theft?
A
Yes, as long as there is coincidence of the two at some point
61
Q
Theft offences
What is property for the purposes of theft?
A
Money, and all other property, including intangible property, real property, and personal property
62
Q
Theft offences
What are three specific situations in which a person would still be deemed to take property
belonging to another?
A
1.Stealing from co-owners or co-partners
2.Director stealing from their company
3.Owner taking back an item impliedly left on trust for services rendered
63
Q
Theft offences
When is intent determined?
What should this not be confused with?
A
Intent is determined at the time of appropriation, such that if there is coincidence of the actus
reus and mens rea at this time, the offence is committed, even if the defendant changes their
mind later.
This should not be confused with the fact that where there is no coincidence of actus reus
and mens rea at the time of appropriation, the offence can still be committed later if the mens
rea occurs. This is because appropriation is a continuing act.
Q
Theft offences
64
What is the two part test for dishonesty?
A
1.Ascertain what facts the defendant knew (subjective), and then
2.Judge whether the behaviour based on this knowledge was objectively dishonest
65
Q
Theft offences
What are three situations where the defendant will not be deemed to be dishonest?
A
Where the defendant believes they:
1.Have a right to the property in law
2.Would have the owner’s consent, or
3.Owner could not be discovered taking reasonable steps
Q
66
Theft offences
When is robbery committed under section 8?
A
When a defendant commits theft, and immediately before or at the same time, they
use force or put a victim (or any other person) in fear of force in order to steal
67
Q
Theft offences
What are the three ways the element of force is satisfied for robbery?
If someone commits a theft and uses a fake gun in order to steal, are they guilty of robbery?
A
1.Inflict force
2.Cause apprehension of force
3.Intend to cause apprehension of force
Yes, even if victim knew the gun was fake, because defendant intended to cause
apprehension of force
68
Q
Theft offences
What are the two types of Burglary under section 9?
A
 Section 9(1)(a): Burglary by trespass with intent
 Section 9(1)(b): Burglary by offences committed following trespassory entry
69
Q
Theft offences
What is required for entry under both section 9(1)(a) and (b)?
A
Defendant must knowingly or recklessly enter a building or part of as a trespassor with any
part of their body
70
Q
Theft offences
What is the standard required of a building or part of a building for burglary?
A
Struture with some degree of permanence
71
Q
Theft offences
The defendant must have intent to do one of what three things at the time of entry for section
9(1)(a) burglary?
A
Intent to:
1.Steal anything in the building
2.Inflict GBH on anyone in the building
3.Cause criminal damage to the building or anything inside it
72
Q
Theft offences
The defendant must do one of what two things after entry for section 9(1)(b) burglary
A
1.Steal or attempt to steal something from the building
2.Inflict or attempt to inflict GBH on any person in the building
73
Q
Theft offences
Therefore, intent to commit what offence will give rise to section 9(1)(a) burglary by trespass
with intent, but is irrelevant for section 9(1)(b) burglary by offences after entry?
A
Criminal damage to the building or anything inside it
74
Q
Theft offences
Other than the timing of the offence relative to entry and the fact criminal damage will not give
rise to section 9(1)(b), what is the main difference between the two?
A
Section 9(1)(a) only requires intent.
Section 9(1)(b) requires an actual offence or an attempt of it to be committed.
Q
75
Theft offences
What is the baseline mens rea for both types of burglary?
A
The defendant must know or be reckless as to the fact they are a trespasser
76
Q
Theft offences
What are the additional mens rea requirements for section 9(1)(a) and (b) respectively?
A
 Section 9(1)(a): Intent to commit the underlying offence at time of entry
 Section 9(1)(b): Mens rea for underlying offence required
77
Q
Theft offences
Burglary will be upgraded to aggravated burglary if, whilst committing a burglary the defendant
has one of what three things with them?
A
1.Firearm or imitation firearm
2.Weapon of offence
3.Explosive
78
Q
Theft offences
What is the definition of (1) weapon of offence and (2) explosive?
A
1.Any item made or adapted to cause injury or intended by defendant to be used as such
2.Any item manufactured to create an explosion or intended by the defendant to explode
79
Q
Fraud
What are the three fraud offences?
A
1.Fraud by false representation
2.Fraud by failing to disclose information
3.Fraud by abuse of position
80
Q
Fraud
For all three fraud offences, the defendant must intend one of what two things when they
make the false representation, fail to disclose information, or abuse their position?
A
1.To make a gain for themselves or another, or
2.To cause or risk loss to another
Q
81
Fraud
In addition to the general intent, what act is required to commit fraud by false representation?
Can the false representation be made via an agent?
A
Dishonestly making a false or misleading representation (dishonesty judged by an objective
standard), knowing it is false or misleading
Yes
Q
82
Fraud
Must a representation be untrue to be false?
For fraud by false representation, what knowledge must the defendant have?
A
No, it can also just be misleading
They must know the representation is or might be false or misleading, making it a specific intent
crime
Q
83
Fraud
In addition to the general intent, what act is required to commit fraud by abuse of position?
Can it be committed by an omission? Does the defendant need the know they occupy a position
in which they are expected to safeguard the financial interests of another?
A
Abusing a position in which defendant is expected to safeguard the financial interests of another
Yes. No.
84
Q
Criminal damage
When does a defendant commit criminal damage?
A
When they, without lawful excuse, destroy or damage property belonging to another intending to
do so, or being reckless as to whether the property is destroyed or damaged
85
Q
Criminal damage
What is the general test for whether property is damaged?
Only what type of property can be damaged?
A
1.Usefulness or value is impaired, and/or
2.Will involve effort or expense to repair
Tangible property
Q
86
Criminal damage
What is the exception to the rule that a person generally cannot commit criminal damage to
property they own?
A
If the property is co-owned with another
87
Q
Criminal damage
To commit criminal damage, what must the defendant know or believe?
A
That the property belongs to another
88
Q
Criminal damage
What are the two defences to criminal damage?
A
Defendant:
1.Believes owner did or would consent, or
2.Honestly believes any property is in immediate need of protection and this is
reasonable in the circumstances
Q
89
Criminal damage
What is the additional mens rea requirement to elevate criminal damage to aggravated criminal
damage?
A
Defendant must intend or be reckless as to the endangerment of life by the exact damage
caused to the property
Life does not actually have to be endangered, but D checking to make sure there are no people
around such that no life could be endangered will negate the aggravated part of the offence.
90
Q
Criminal damage
What are the other two differences between criminal damage and aggravated criminal damage?
A
1.Property can belong to the defendant
2.The defences to criminal damage do not apply
91
Q
Criminal damage
As an aside, why do the criminal damage defences not apply to aggravated criminal damage?
A
1.Owner consent defence: Because it would be unusual to allow the owner of property
to consent to the endangerment of life
2.Protecting own property defence: Because the law does not allow human life to be
endangered for the protection of property (like how self-defence can permit lethal
force but never to protect property alone)
Q
Criminal damage
92
What is (1) arson and (2) aggravated arson?
Damage by what alone will not amount to arson, but merely criminal damage?
A
Arson is criminal damage by fire
Aggravated arson is aggravated criminal damage by fire
Damage by smoke, but not fire
Q
93
Inchoate
What is required to commit attempt?
A
D fails to commit the crime but does something more than merely preparatory, with
the specific intent to commit the underlying offence
Q
94
Inchoate
What is the mens rea for attempt, and what is the effect of this?
A
It is generally always the intention to complete the full offence, and is therefore sometimes a
higher standard than the underlying offence (e.g. where recklessness is an option)
95
Q
Inchoate
What is factual impossibility and does it prevent liability?
A
Where defendant attempts an offence which is physically impossible to complete, liability can still
arise
96
Q
Inchoate
What is legal impossibility and does it prevent liability?
A
Where a defendant, had they completed all acts they had intended, would not have actually
broken any law, no liability can attach
Q
97
Inchoate
Can a defendant charged with a completed crime also be charged with attempt?
A
Yes, provided the charge can be sustained, e.g. intent required over recklessness
Q
Inchoate
98
What is the maximum sentence allowable for attempt?
A
The same as the completed crime, but the courts do not tend to punish that severely
99
Q
Inchoate
What is the exception to the rule that attempt can possibly carry the same possible sentence as
the completed offence?
A
The life sentence for attempted murder is discretionary, whereas for murder it is mandatory
Q
100
Defences
Regarding intoxication, what does the law draw a line between?
A
Voluntary and involuntary intoxication
Q
101
Defences
What have the courts held when a defendant becomes intoxicated through no fault of their own?
Is involuntary intoxication available where the defendant underestimates the strength of their
own drink?
A
They may not be able to form the mental state required for the offence
No
102
Q
Defences
When will involuntary intoxication not be available, and what facts will be a tip off to this?
A
Not available where the intent was not formed by the intoxicated state, but rather their desires
and tendencies toward the behaviour
103
Q
Defences
When considering voluntary intoxication, what are the two things the court will consider?
A
1.Whether the drug was dangerous or non-dangerous,
2.And, if dangerous, whether the offence was basic intent or specific intent
Q
Defences
104
Will voluntary intoxication by a (1) non-dangerous substance and (2) dangerous substance
negate mens rea?
A
1.Yes, subject to the proviso that intoxicated intent is still intent
2.Only if the offence is one of specific intent
105
Q
Defences
In what specific intent situation will a voluntarily intoxicated person still be guilty?
A
Where they become intoxicated only to gain the courage to commit the offence
Q
106
Defences
Why is intoxication not a defence to strict liability offences?
A
Because strict liability offences have no mens rea requirement
Q
107
Defences
For self-defence to be available, what three things must the defendant be acting to protect, or
what other two things must they be trying to do?
A
Protect:
1. Self
2. Another, or
3. Property
or
1.Prevent crime, or
2.Effect lawful arrest
Q
108
Defences
To rely on self-defence, what must the defendant subjectively believe?
A
That force is immediately required
Q
109
Defences
To rely on self-defence, what must be true of the force used?
A
It must be objectively proportionate based on the facts that
the defendant subjectivelybelieves them to be
110
Q
Defences
Regarding the amount of force used, what is the standard where the defendant is a householder
acting against an intruder who has entered their home?
A
The householder may use any force as long as it is not grossly or unreasonably
disproportionate
111
Q
Defences
In determining what is grossly or unreasonably disproportionate, what will the court consider?
A
Decisions that were made in the heat of the moment
Q
112
Defences
In addition to being in their dwelling, what are the two other criteria the defendant must satisfy
to rely on the householder exception?
A
Defendant must:
1. Not be a trespasser, and
2. Believe that the victim is a trespasser
1
Q
What are the likely applications you will be asked to make in the criminal advocacy assessment?
A
 Bail application
 Mode of trial (Magistrates should retain jurisdiction)
 Admission or exclusion of hearsay/bad character
 Exclusion of confession
 Exclusion of evidence generally
Q
2
Bail application
What is the first part of a bail application?
A
Remind the court of defendant’s general right to bail (unless murder).
Bail can only be refused if an exception applies and there is a real prospect of custodial
sentence
You could have to argue for or against bail, but the factors are the same
Q
3
Bail application
What are the exceptions to the right to bail?
A
 Substantial grounds to fear defendant would fail to surrender, commit other offences,
or interfere with witnesses/justice
 Offence committed on bail
 D failed to surrender already in these proceedings
 Not enough evidence to make a decision on bail
4
Q
Bail application
What four things should you consider if deciding whether substantial grounds exist?
A
 Nature and seriousness of the offence
 Strength of the evidence
 D’s character
 D’s record of complying with bail conditions
5
Q
Bail application
How should you finish up a bail application?
A
 Propose any conditions, if relevant
 Request the application be granted
6
Q
Mode of trial
What does the Magistrates first consider when deciding whether to retain jurisdiction over an
either way offence?
A
The adequacy of its sentencing powersrelative to the nature of the offence in question
Six months for one; twelve months for two or more
Depending on the side you are acting for, you must convince the court its powers are either
adequate or not adequate
7
Q
Mode of trial
What parts of the case documentation would you use to evidence the adequacy of the court’s
powers?
A
1.Sentencing guidelines
2.Evidence of aggravating/mitigating factors
8
Q
Hearsay
What is the structure of a hearsay application?
A
1.Hearsay generally inadmissible
2.Admissible if an exception applies (statute, case law, etc.)
3.Apply the test in support of why the hearsay should be admitted/not admitted
9
Q
Bad character
What is bad character evidence?
A
Evidence of, or of a disposition toward:
* Misconduct
* Commission of offences
* Other bad behaviour outside of the facts of the offence in question
Not generally admissible, unless an exception applies
10
Q
Bad character
What are some of the grounds under which bad character evidence can be admitted?
A
 Matter in issue between prosecution and defence (including propensity)
 D attacked another’s character
 Important explanatory evidence (including of propensity)
 To correct a false impression given by D
 Matter in issue between co-defendants
Q
11
Exclusion of evidence
No matter the reason, an application to exclude any evidence (other than confession) is made
under what section, and what is the test?
A
Section 78 of PACE
Court has discretion to not admit any evidence if it would have such an adverse effect on the
fairness of proceedings that it ought not be admitted
12
Q
Exclusion of bad character evidence
Although an application to exclude evidence under s. 78 PACE is at the court’s discretion, which
two bad character grounds make it mandatory to exclude if the adverse effect on fairness test is
met?
A
 Matter in issue between P and D
 D attacked another’s character
13
Q
Exclusion of confession
An application to exclude a confession is made under what section, and what does it provide
which should form the opening of your submission?
A
Section 76 of PACE
Submit to the court that although a confession is generally admissible as a matter in issue
between P and D, once challenged, in order for the confession to be admissible, the
prosecution must prove beyond reasonable doubt that the s. 76 factors were not made out
14
Q
Exclusion of confession
What are the two factors under s. 76 to exclude a confession?
A
 Unreliability due to things said or done likely to render the confession unreliable, or
 Unreliability due to oppression
You must then demonstrate how the factors are met on the facts
15
Q
Exclusion of ID evidence
Other than making a general s. 78 application to exclude the evidence under the adverse effect
on fairness test, what should you consider in the context of an application to exclude ID
evidence?
A
The ADVOKATE factors which go to quality of the evidence
The poorer the quality, the bigger the adverse effect on the fairness of proceedings
Q
Exclusion of improperly obtained ID evidence
16
Other than making a general s. 78 application to exclude the evidence under the adverse effect
on fairness test, what should you consider in the context of an application to exclude ID evidence
that was unfairly obtained?
A
The failure under Code D to:
* Take into account reasonable objections to appearance of others
* Keep witnesses away from suspect
* Keep witnesses apart
* Warn that suspect might not be shown
17
Q
No case to answer
What are the stages of a submission of no case to answer?
A
Submit that the prosecution:
* Bear the burden to prove D’s guilt and prove all elements of the offence, and
* Have failed to prove an element of the offence, or the evidence is so manifestly unreliable,
no reasonable court would convict
Q
18
Plea in mitigation
What is the structure of a plea in mitigation?
A
 Submit that the sentence must be proportionate to the seriousness of the offence (and
custody threshold)
 Use sentencing guidelines to identify sentence starting point and range
 Identify aggravating and mitigating factors of the offence in the facts
 Consider consecutive/concurrent argument based on facts
 Identify mitigating factors of the offenderin the facts
 Reference credit for guilty plea if D pleaded
 Propose appropriate sentence
1
Q
Income tax
Who pays income tax?
Does a UK tax resident pay UK income tax on foreign income?
A
 Employees
 Sole traders
 Partners
 Shareholders (on dividends)
 Lenders
 Debenture holders
Yes
Q
Income tax
2
What are the three categories of income in the order they are collected?
A
1.Non-savings income
2.Savings income
3.Dividend income
3
Q
Income tax
What are the the three categories of non-savings income?
A
1.Earnings and pensions
2.Trading income
3.Property income
4
Q
Income tax
What is the difference between tax exempt and zero-rated?
A
Tax exempt means the income is fully exempt from tax calculations and does not form part of
income for the purposes of determining tax brackets.
Zero-rated means the income is not exempt from tax and still forms part of the income to
determine tax bracket, but it is taxed at 0%.
5
Q
Income tax
What are five examples of income which are exempt from income tax?
A
1.Interest from National Savings
2.Interest or dividends from an ISA
3.Winnings on Premium Bonds or any gambling
4.Most social security benefits
5.Child benefits and tax credits
Q
6
Income tax
What is the annual investment allowance in the context of capital assets?
A
If a taxpayer buys a capital asset for their business, they may deduct all of the costs if it is plant
or machinery, e.g. tools, machines, and computers, but not cars, land, or buildings
Q
7
Income tax
In what situation is a Writing Down Allowance available, and what are the percentage allowances
which can be deducted per year for (1) life-long assets, and (2) other assets?
A
If the capital asset purchase exceeds the annual investment allowance.
Life-long assets: 6% per year
Other assets: 18% per year
Assets are pooled if multiple
Q
8
Income tax
In the case of a partnership, how are partnership profits split for income tax purposes where one
of the partners also receives either (1) a salary or (2) interest on capital contributions?
A
The salary and/or interest are allocated to the partner first, and then the net amount is
distributed as partnership profits.
Partner profit must be declared as income and tax paid; Partnership Tax Return must be filed
even though the partners pay the tax
Q
9
Income tax
In the context of the overlap profit problem, what is a taxpaying business’s basis period?
What are overlap profits?
A
Where a business has an accounting period which is different to the tax year of April 6 to April 5,
the period of their accounting period which overlaps with a relevant tax period is the basis
period
E.g.:
 Accounting period: Jan 1, 2023 - Dec 31, 2023;
 Basis period is Jan 1, 2023 - April 5, 2023 as part of the 2022/23 tax year.
Where a business has an accounting period which is different to the tax year of April 6 to April 5,
and does not make up accounts to April 5 of that year, some profits made in the business’s first
and second yearof trading will be taxed twice
10
Q
Income tax
On what three qualifying loans can a taxpayer offset the interest paid against income?
A
Loans used to fund:
1.Capital contributions or loans to a partnership
2.Investments in a closed trading company
3.Payments of inheritance tax for personal representatives
Q
11
Income tax
To what degree is the income tax personal allowance (currently £12,570) tapered for income
above £100,000?
At what level of income is the personal allowance reduced to £0?
A
The income tax personal allowance is reduced by £1 for every £2 above £100,000. Therefore,
the allowance is reduced to £0 for incomes of £125,140 and above.
The allowance is reduced to £0 for incomes of £125,140 and above.
Q
12
Income tax
What does the Marriage Allowance allow?
What amount is currently allowed to be transferred?
A
It allows a person to transfer part of their personal allowance to their spouse or civil partner
£1,260, reducing the spouse/civil partner’s tax liability by £252 (20% of the amount)
Q
13
Income tax
In addition to being married/in a civil partnership and the transferring spouse having some of
their allowance left to transfer, what condition must be met to transfer under the Marriage
Allowance?
A
Recipient spouse must be a basic rate taxpayer
Q
Income tax
14
What are the tax bands called, what are the monetary thresholds, and what are the percentage
rates applying to each?
A
 Personal allowance: Up to £12,570 – 0%
 Basic rate: £12,571 - £50,270 (next £37,700) – 20%
 Higher rate: £50,271 - £125,140 (next £74,869) – 40%
 Additional rate: £125,140 and above – 45%
15
Q
Income tax
What is the personal savings allowance amount for each tax band which must be deducted from
savings income before tax?
A
1.Basic rate band: £1,000
2.Higher rate band: £500
3.Additional rate band: No savings allowance at all
Q
16
Income tax
What is the dividend allowance amount and what tax bands is it available to?
What are the dividend tax rates for each tax band which must be deducted from dividend income
before tax?
A
£2,000. Available to all taxpayers, irrespective of band.
Basic: 8.75%; Higher: 33.75%; Additional: 39.35%
Q
17
Income tax
Are the personal allowance, personal savings allowance, and dividend allowance considered
exemptions or zero-rated?
What is the effect of this?
A
Zero-rated
The amounts are counted as income for the purposes of determining the applicable tax band, but
are taxed at 0%
Q
18
Income tax
Who can claim a trading loss?
Can it be transferred to a spouse or civil partner?
A
Only the taxpayer
Losses cannot be transferred
Q
19
Income tax
What are the four ways with which a taxpayer may be able deal with a loss?
A
1.Set off all of loss against profits from current year or prior year
2.If no profits, carry loss forward to offset against future profits in the same trade
3.If sole trader/partner incorporates and receives shares, set off losses against
future salary or dividend income from the company whilst they are a shareholder
4.Terminal loss relief
20
Q
Income tax
Although partial claims are not allowed in a current year/prior year loss relief situation, what
option is available to a taxpayer who does not offset all of their trading loss against total income?
In order to prevent artificially increasing the amount of loss that may be carried back or applied
to CGT in a current year/prior year loss relief situation, what is the order in which losses and the
personal allowance are applied to income?
A
They can use the balance to offset any capital gains tax
The loss to be offset is applied to the fullest extent possible, before the personal allowance
Q
21
Income tax
What does terminal loss relief allow?
A
When a trader ceases trading, it allows a loss to be deducted in the tax year of cessation and
then to be carried back to the three preceding tax years on a last in first out basis
22
Q
Income tax
What is the double reasonableness test in the context of anti-avoidance?
A
HMRC can set aside a transaction if they can prove the arrangement cannot reasonably be
regarded as a reasonable course of action
23
Q
Capital gains tax
If an individual is UK resident, are they liable for CGT on all their assets, wherever situated?
A
Yes
Q
24
Capital gains tax
Disposals of what type of property is an exception to the general rule that non-UK residents are
not liable for CGT in UK?
A
Disposals of interests in UK land, whether residential or commercial
25
Q
Capital gains tax
What are two types of assets which are exempt from CGT?
A
1.Wasting chattels
2.Non-wasting assets worth less than £6,000
A wasting chattel is any moveable property with a life of less than 50 years, excluding machinery
used in business
Q
26
Capital gains tax
If an individual transfers an asset to their spouse, at what value is the spouse deemed to have
acquired the asset at?
A
The transferring spouse’s acquisition cost
Q
27
Capital gains tax
What is the requirement for expenditure which enhances the value of an asset to be deductible?
A
It must still form part of the asset when it is disposed
28
Q
Capital gains tax
Disposal of what three types of assets qualifies under Business Asset Disposal Relief?
Under Business Asset Disposal Relief, what is the CGT rate paid on qualifying assets, and what is
the lifetimelimit on this relief?
A
1.All or part of business carried on as a sole trader/partner
2.Shares in a company if the taxpayer owns at least 5% and was
an officer/employee
3.Assets owned and used by the taxpayer’s company
All must be for at least two years before disposal.
10%. £1 million lifetime limit.
29
Q
Capital gains tax
What is Hold Over (Gift) Relief?
A
Where an individual disposes of a business asset by giving it away, but donor and recipient
agree to defer any gain on to the recipient, who when they dispose of the asset, will be treated
as acquiring the gift at the donor’s cost basis
30
Q
Capital gains tax
What three types of business assets qualify for Hold Over (Gift) Relief?
A
1.Assets used in the business
2.Shares in an unquoted company, including the donor’s personal company
3.Assets that qualify for agricultural property relief
Q
31
Capital gains tax
When does Incorporation Relief arise, and how does it operate?
A
When an individual transfers their sole trader or partnership interest to a company, part or all of
the gain from the transfer is deferred by subtracting the acquisition cost of the company
shares from the gain, which will then be taxed when the shares are disposed of
Q
32
Capital gains tax
How does Enterprise Investment Scheme Reinvestment Relief allow deferral of CGT liability?
A
If an individual reinvests any chargeable gain in shares of qualifying unquoted
companieswithin one year before or three years after, the gain can be deferred until after
the shares are disposed of
33
Q
Capital gains tax
What is the only CGT relief available to companies as well?
A
Replacement of Business Assets Relief
Q
34
Capital gains tax
What is the most tax-efficient way to use the CGT annual exempt amount and why?
A
Put AEA toward gains on residential property first, as they carry rates of 18% and 28%
compared to 10% and 20% for all other assets
Q
35
Capital gains tax
What is the order in which losses are offset against gains of the same year and utilisation of the
AEA?
What is the order in which losses which are carried forward are offset against gains and
utilisation of the AEA of the year of gains?
A
Losses are automatically offset, before the AEA is deducted
Losses which are carried forward deducted after the AEA, such that the AEA is not wasted
Q
36
Corporation tax
Within what time after the end of its financial accounting period must a company (1) pay any
corporation tax which is owing, and (2) submit its tax return?
A
Tax due: Nine months and one day
Return due: Twelve months
Q
37
Corporation tax
What is the current corporation tax rate?
A
Up to £50k: 19%
Over £50k: 25%
Q
Corporation tax
38
What is the difference between the tax-status of dividends paid by a company and to a
company?
A
Dividends paid out: not tax deductible
Dividends received: usually exempt from taxso not added to taxable income
39
Q
Corporation tax
What are the two ways in which a company can treat its trading losses?
A
1.Set off all of loss against profits (before donations) from current or if no profits in
current, a preceding accounting period
2.If no profits, carry loss forward to offset against future profits (after donations) in a
future accounting period
40
Q
Corporation tax
What is a close company?
A
Company resident in UK and controlled by either:
1.Five or fewer shareholders, or
2.Any number of directors who are also shareholders
41
Q
Corporation tax
What happens if a close company makes a loan to a shareholder who is also a director/employee
and charges no interest on this?
What is triggered if the loan is over £10,000?
A
A taxable benefit arises valued at the current official interest rate
If the loan is over £10,000, the benefit must be reported and taxed as earnings
Q
42
Corporation tax
If a close company makes a loan to a shareholder, even if interest is charged, what is the
amount of the notional tax payment which must be deposited with HMRC and within what time
limit should this payment be made?
Is the payment refunded when the loan is repaid or written off?
A
The company must pay to HMRC 33.75% of the loan if not repaid within nine months and
one day after the end of the accounting period in which the loan was made
It is not tax-deductable
Yes
43
Q
Value added tax
What is VAT charged on?
A
Any supply of goods or services made in the UK, unless exempt, which is made by a taxable
person whilst carrying on business
44
Q
Value added tax
The supply of what six things is exempt from VAT?
LIFE HP
A
1.Land
2.Insurance
3.Financial services
4.Education
5.Health services
6.Postal services
45
Q
Value added tax
The supply of what five things is zero-ratedfrom a VAT perspective?
FBWTR
A
1.Food (other than in catering context)
2.Books/newspapers
3.Water/sewer services
4.Transport
5.Residential construction
46
Q
Value added tax
The supply of what three things is taxed at a reduced VAT rate of 5%?
A
1.Domestic fuel
2.Installation of energy-saving materials
3.Child car seats
47
Q
Value added tax
When must a business compulsorily register for VAT?
A
If its gross income excluding exempt goodswill in any 12-month period exceed the VAT
threshold which is currently £85,000
Q
48
Value added tax
What are the two ways to test if gross income will exceed the VAT threshold?
A
1.Historic test
2.Future test
49
Q
Value added tax
What does (1) the historic test and (2) the future test look at and how soon must registration
occur after passing the threshold with these methods?
A
1.Taxable sales in the preceding 12 months, on a rolling basis
2.Taxable sales in the next 30 days alone
HMRC must be notified with 30 days.
Q
50
Value added tax
Who is not able to voluntarily register for VAT?
A
Someone who only supplies exempt items or services
Q
51
Value added tax
When may a business voluntarily deregister for VAT?
A
If taxable turnover falls below £83,000 for a 12-month period
52
Q
Value added tax
Who may opt to charge VAT even though it would normally be exempt?
A
Owners of interests in commercial land and building who are leasing out the premises
Q
53
Value added tax
Where tax on an interest in commercial land or buildings is opted for, who might this be a
problem for?
A
Tenants who wholly or partially make exempt supplies, as they will not be able to recover input
tax on their lease
Q
Value added tax
54
What type of property does the option to tax not apply to?
A
Residential
55
Q
Value added tax
What two things must be distinguished from exempt land which an owner may opt to charge
VAT?
A
1.Supply (i.e. construction) of new commercial building (taxed at 20%, not exempt)
2.Sale of a commercial building less than three years old (taxed at 20%, not exempt)
56
Q
Value added tax
Within what time limit can someone who opts to charge VAT change their mind, such that HMRC
will revoke the option as if it had never been exercised?
If the option to tax has been put into practice, after what amount of time can it be revoked with
the consent of HMRC?
A
Six months, as long as it hasn’t been put into practice
20 years
Q
57
Value added tax
When must a registered business account for VAT?
A
One month after the end of each VAT quarter
58
Q
Value added tax
What determines the accounting period within which a supply of goods or services will fall?
A
The tax point (time of supply)
59
Q
Value added tax
What is the default tax point for (1) goods and (2) services?
A
1.The time the goods are removed, or the time they are made available to the person
to whom they are supplied
2.When the service is performed
Q
60
Value added tax
What are two situations in which the tax point will be altered?
A
1.If supplier issues VAT invoice or receives payment before the goods are delivered
or made available, the tax point becomes that invoice or payment date
2.If a VAT invoice is issued within 14 days after the default tax point, the invoice
date becomes the new tax point
61
Q
Value added tax
What are two things on which the VAT cannot be reclaimed?
A
1.Cars
2.Business entertaining
Q
62
Value added tax
What is a quick way to calculate the VAT from a VAT-inclusive figure at (1) the standard rate,
and (2) the reduced rate, and why is this the case?
A
Standard rate: Divide the VAT-inclusive amount by 6 (x + 20% VAT = 6/5*x)
Reduced rate: Divide the VAT-inclusive amount by 21 (x + 5% VAT = 21/20x)
Q
Stamp duty land tax
1
What is the amount of SDLT due based on?
A
The consideration exchanged for the property
If land/buildings are given to a company in exchange for shares, SDLT is based on the market
value of the land/buildings
2
Q
Stamp duty land tax
When must a SDLT return be sent to HMRC even if there is no tax to be paid?
A
Within 14 days of completion
3
Q
Stamp duty land tax
What four types of property transfer are exempt from SDLT?
A
Property transferred:
1.As a gift
2.To a spouse
3.To a former spouse upon divorce
4.Under a variation of a will changing the beneficiary within two years of the
decedent’s death
4
Q
Stamp duty land tax
What do the SDLT thresholds and rates depend on?
A
Whether the property is residential, non-residential, or mixed
5
Q
Stamp duty land tax
What is the nil-rate band for SDLT for (1) residential and (2) non-residential properties?
A
1.£250,000
2.£150,000
6
Q
Stamp duty land tax
How is SDLT considered a tiered tax?
A
Because the applicable rate applies to the amount of consideration within the threshold, before
applying higher rates to excess amounts
Similar to how income tax operates
7
Q
Stamp duty land tax
By what percentage is each rate increased if a person already owns a residential property, and
buys another one?
What is the lower limit for application of this rule? In what situations are the increased rates
either not charged, or charged but refunded?
A
3%, e.g. the 0% rate becomes 3%; the 2% rate becomes 5%, etc.
£40,000 lower limit. Not charged where the new property replaces the purchaser’s only or main
residence
8
Q
Stamp duty land tax
How is SDLT payable on the grant of a new lease calculated?
A
Based on either or both of:
1.Lease premium paid up front (usual rate), or
2.Net present value of the rent payable (lower rate)
Q
Stamp duty land tax
9
What is the upper limit of the property value for which SDLT relief is available to buyers of their
first property to be used as their main residence?
What are the reduced rates when the relief for purchase of first residence applies?
A
£625,000
0% on the first £425,000; 5% on remainder up to £625,000
Q
10
Stamp duty land tax
Where there are multiple linked transactions, what is the relevant consideration, and what is the
downside of this?
What relief is available where due to totaling the considerations, the SDLT payable is more than
it would be individually?
A
The total of the chargeable considerations for each transaction.
This may result in more SDLT being payable than if it was charged against each individually.
SDLT is calculated based on the average consideration, i.e. total considerations divided by the
number of properties
Q
11
Stamp duty land tax
What further relief is available when six or moreresidential properties are purchased in a single
transactions?
A
Purchaser can choose to apply non-residentialrates
12
Q
Stamp duty land tax
What are the SDLT rates for residentialproperty?
A
 Up to £250k: 0% (£425k if first time buyer)
 The next £625k: 5%
 The next £575k: 10%
 Remaining: 12%
13
Q
Stamp duty land tax
What are the SDLT rates for non-residentialproperty?
A
 Up to £150k: 0%
 The next £100k: 2%
 Remaining: 5%
Q
Capital gains tax
14
Under Private Residence Relief, what is the equation to calculate how much of the gain is exempt
from CGT?
A
Gain x (period of occupation / period of ownership)
15
Q
Capital gains tax
For Private Residence Relief, the last how many months of ownership will be treated as deemed
occupation, and what is the one condition for this to apply?
A
Nine months, regardless of how long the taxpayer lived there, as long as they occupied the
property as their home for some time
16
Q
Capital gains tax
For Private Residence Relief, in addition to the last nine months no matter what, what are the
three periods of absence which can qualify as deemed occupation if they punctuate periods of
actual occupation?
Can they apply cumulatively?
A
1.Any period of absence, up to three years, for any reason
2.Any period, with no limit, where the owner is abroad for employment
3.Any period, up to four years, where the owner is absent from the property due
to working elsewhere (not abroad)
Yes
1
Q
Taxation of estates in administration
What is personal representative’s obligation regarding a deceased’s tax return?
A
PR must complete the deceased’s tax return for the period from April 6 to date of death,
including capital gains
2
Q
Taxation of estates in administration
Until it is distributed, who does the income generated by assets within the estate belong to, and
therefore who must pay the income tax?
A
PRs, under the usual self assessment rules
Q
3
Taxation of estates in administration
What can PRs do instead of filing annual self-assessment returns on behalf of the estate?
A
Make an informal payment covering the total liability for the whole period of administration, with
a single income tax and capital gains tax calculation
4
Q
Taxation of estates in administration
For an estate in administration, what is the income tax rate applicable to (1) non-savings income
and interest and (2) dividends, irrespective of amount?
Is the personal allowance, personal savings allowance, or dividend allowance available?
A
Basic rate for both so:
1.Non-savings income/interest: 20%
2.Dividends: 8.75%
No
5
Q
Taxation of estates in administration
If PRs took out a loan to pay IHT, what can be deducted from income?
A
Interest on the loan
6
Q
Taxation of estates in administration
If a beneficiary is left an asset under a will, when are they deemed to have acquired the asset
and at what valuation?
A
They are deemed to acquire the asset at the date of death for probate value, i.e. market
value at the date of death.
(Value at time of distribution is irrelevant)
This is also the value at which the PRs are deemed to acquire the asset (PRs liable to CGT on any
disposals during administration)
7
Q
Taxation of estates in administration
In the context of CGT, for what periods will the PRs receive the annual exempt amount?
A
Year of death and the subsequent two years
8
Q
Taxation of estates in administration
For an estate in administration, what are the capital gains tax rates which apply?
A
Upper rate, so 20% for all assets except residential property which is 28%
Q
9
Taxation of estates in administration
Is a disposal by a PR to a beneficiary in settlement of a legacy under a will considered a disposal
for capital gains tax purposes?
A
No
Q
10
Inheritance tax
What is the current inheritance tax nil-rate band (NRB), and what is the inheritance tax rate
(IHT)?
A
£325,000. 40%.
Q
11
Inheritance tax
When are lifetime transfers to trusts and companies chargeable to IHT, to the extent they
exceed the NRB?
What is a lifetime transfer to an trust or company known as?
A
Chargeable when made
This is known as a chargeable lifetime transfer, chargeable at 20% or 25% depending on the
payor
12
Q
Inheritance tax
When are lifetime transfers to individualschargeable to IHT, to the extent they exceed the
NRB?
What is a lifetime transfer to an individual known as? If a donor dies within seven years of this,
who is the tax payable by?
A
When the donor dies within seven years
This is known as a potentially exempt transfer. Tax is payable by the recipient.
Q
13
Inheritance tax
The transfers of what assets are chargeable to IHT depending on whether the donor is
domiciled:
(1) in the UK and
(2) outside the UK?
What is the term given to a non-domiciled donor’s assets located outside the UK?
A
Domiciled in UK: All worldwide assets, wherever situated
Not domiciled in UK: UK assets only
Excluded property
14
Q
Inheritance tax
What are the two primary considerations when determining whether a transfer is a chargeable
transfer?
A
1.Whether there has been a reduction in value in the estate as a result of the transfer
2.Whether donor intended to make a transfer of value
Q
15
Inheritance tax
Selling something below market value would cause a reduction in value of the estate. When is
this not deemed a transfer for IHT purposes?
A
When the transfer is to an unconnected personand there is no gratuitous intent behind the
lower price
Family are not unconnected
Q
16
Inheritance tax
What is one exception to the general rule that a reduction in value of the estate will render a
transfer chargeable?
A
Expenditure on the maintenance of one’s family
Q
17
Inheritance tax
Under the related property rule, how is transferred property valued if it is worth more when
combined with property already owned by the recipient, e.g. 10% of shares transferred to
someone who already owns 41% makes their entire holding more valuable on single-share basis?
A
The transferred property is valued at the higher amount
18
Q
Inheritance tax
What is a potentially exempt transfer?
A
A lifetime gift to an individual
It is neither exempt nor chargeable, but becomes chargeable if the donor dies within seven years
Q
19
Inheritance tax
What is the spouse/civil partner exemption to IHT on both lifetime transfers and transfer on
death?
What is the exception to this?
A
Completely exempt from IHT
If the donor spouse is UK-domiciled and the recipient spouse is non-UK domiciled, only
the first £325,000 is exempt
20
Q
Inheritance tax
What other transfers, both lifetime and on death, are exempt from IHT?
A
 Gifts to charities in UK and EEA, with no limit
 Small gifts of £250 or less, with no limit on the amount of recipients
 Wedding gifts
 Normal expenditure out of income
Q
21
Inheritance tax
What does it mean that the small gift exemption is an all or nothing exemption?
A
If the gift exceeds £250 at all, the entire gift is chargeable, not just the portion which exceeds
the threshold
22
Q
Inheritance tax
What are the limits on exempt lifetime gifts on marriage for:
(1) a parent,
(2) a grandparent
(3) bride to groom (vice versa), and
(4) all others?
Is the wedding exemption all or nothing?
A
1.£5,000
2.£2,500
3.£2,500
4.£1,000
The limit applies per donor, per wedding
No
23
Q
Inheritance tax
What is the annual exemption for lifetime transfers?
Can unused amounts be carried forward?
A
£3,000
Unused amounts can be carried forward one yearand a current year’s exemption is used before
the previous one
24
Q
Inheritance tax
What two monetary amounts must be deducted before calculating the tax on a chargeable
lifetime transfer?
A
1.Remaining NRB
2.Available exemptions, max of £6,000 if carrying over a full unused year
25
Q
Inheritance tax
What are the two tax rates applicable to CLTs if paid by (1) the trustees, and (2) the donor?
A
1.Trustees: 20%
2.Donor: 25%
Q
26
Inheritance tax
What is the time period within which we assess previous gifts made for the purposes of
determining the NRB remaining?
A
Seven years
27
Q
Inheritance tax
To summarise, what are the five steps for calculating lifetime tax?
A
1.Identify the value transferred using the loss to donor principle
2.Deduct annual exemptions to arrive at the CLT
3.Identify the NRB for the year of transfer
4.Deduct from NRB other chargeable transfers made within seven years
5.Pay tax on the excess at 20/25%
Q
28
Inheritance tax
In determining tax owed on a potentially exempt transfer after death, what NRB and tax
rates are operative?
A
The ones at the date of death
Q
29
Inheritance tax
In determining tax owed on a PET, from what period do we look back seven years?
A
Seven years from the date of the PET, not death
30
Q
Inheritance tax
After what period between the PET and death does taper relief kick in?
What is the process for tapering tax payable on a PET?
A
3 years
First calculate the full tax owed, and then reduce that monetary amount by the relevant %
Q
31
Inheritance tax
What are the four taper percentages available to PETs where the donor dies:
1) 3-4 years
(2) 4-5 years
(3) 5-6 years, and
(4) 6-7 years
after the PET?
A
3-4 years: 20%
4-5 years: 40%
5-6 years: 60%
6-7 years: 80%
32
Q
Inheritance tax
What are the three steps for working out additional tax payable at death on a CLT, where a
donor dies within seven years?
What taper relief is available to tax payable at death on a CLT?
A
1.Start with CLT
2.Calculate NRB remaining
3.Pay tax at 40%
Trustees pay it, but receive a credit for the lifetime tax already paid
The same as with PETs, and kicks in after three years.
33
Q
Inheritance tax
Where additional tax is payable on a CLT, what will trustees receive a credit for?
A
Any lifetime taxes paid on the CLT
34
Q
Inheritance tax
What are the two IHT reliefs?
A
 Business relief
 Agricultural relief
35
Q
Inheritance tax
What is business relief for IHT?
A
The value of business property given as a lifetime gift to a trust or at death is reduced
by either 100% or 50%, before any annual exemptions, and occurs automatically if the
conditions are satisfied
Business must be trading, i.e. buying/selling goods or services, but can be overseas
36
Q
Inheritance tax
What two assets qualify for 100% business relief?
A
1.Sole-trade business or partnership interest
2.Any number of shares in unlisted trading company
Q
37
Inheritance tax
What two assets qualify for 50% business relief?
A
1.Shares in a listed company if the donor owns 50% or more
2.Land, buildings, and plant/machinery owned by an individual but used by a company
they control or partnership in which they are a partner
38
Q
Inheritance tax
What is the general rule as to how long a donor must have owed property before the transfer
before it qualifies for business relief?
What are two exceptions to this rule?
A
Two years
1.Replace one business property asset with another within three years
2.Inheriting business property assets from spouse
Q
39
Inheritance tax
What is agricultural relief?
A
100% relief, operating similarly and available in addition to business relief, but applies
to agricultural property
Q
Inheritance tax
40
What is agricultural property and what are the geographical limits of this relief?
A
Land or buildings used for the purposes of agriculture, within UK, Channel Islands, Isle of Man,
or EEA
41
Q
Inheritance tax
What are the two types of people to whom agricultural relief will apply?
A
1.Farmer who owns the land and buildings and uses these in their own business
2.Landowner who is letting out agricultural land to a farmer
Therefore, the landowner need not actually farm the land themselves for agricultural relief to be
available
42
Q
Inheritance tax
For how long before the transfer must the land have been owned in the case of:
(1) occupation by the transferor and
(2) where the transferor was letting out the land?
A
Occupation by transferor: Two years
Tenanted land: Seven years
43
Q
Inheritance tax
When will business relief and agricultural relief be available at the same time?
What is the priority of these reliefs?
A
When a farmer runs a farming business
Agricultural relief applies first to the agricultural value of the property, and business relief may be
applied to the excess value in respect of assets used in the farming business which are not
agricultural property
Q
44
Inheritance tax
When will business relief not be available in addition to agricultural relief?
Why?
A
When the farmland is let out by the landowner
Because the landowner is not engaged in the business
Q
45
Inheritance tax
At the point of death, what is the deceased deemed to have made a chargeable transfer of?
A
The net value of their assets at the date of death
Net value is the total value of the assets owed by the deceased, less funeral expenses and any
debt or liabilities owed by the deceased, but not probate costs
46
Q
Inheritance tax
By whom is IHT payable by?
Is the £3,000 (or £6,000 if carried over) annual exemption available to reduce the value of the
chargeable death estate?
A
PRs
No
47
Q
Inheritance tax
What are the four steps for calculating tax on death?
A
1.Start with NRB for year of death
2.Reduce NRB by value of CLTs and PETs within seven years of death
3.Reduce the net value of the estate by the remaining NRB
4.Tax the balance at 40%
48
Q
Inheritance tax
What transfers are exempt from IHT on death?
A
1.Gifts to spouse/civil partner
2.Gifts to UK/EEA charities
If the deceased was UK-domiciled but spouse is not, the limit of the exemption is £325,000
Q
49
Inheritance tax
What % of net estate or baseline amount must be given to charity to benefit from a lower IHT
rate, and what is that rate?
For the purposes of the charity rate reduction, what is the baseline amount?
A
10% of estate or baseline amount must be given to charity for the IHT rate to be reduced
to 36% from 40%
Value of estate chargeable to IHT after deducting all available reliefs, exemptions, and the
available NRB, but excluding the actual portion given to charity
Q
50
Inheritance tax
What are two exceptions to the general rule that the value of an asset is its market value at the
date of death?
A
1.Quoted shares
2.Jointly owed assets
51
Q
Inheritance tax
How are (1) quoted shares valued and (2) jointly owned assets valued?
A
1.Per the official list published by the Stock Exchange at the date of death
2.Under the related property rules already discussed, i.e. we take a higher valuation if the
property is worth more combined with property already owed by the recipient
52
Q
Inheritance tax
What are three liabilities that can be deducted from the estate, and what is one that cannot be?
A
Can deduct:
1. Mortgages
2. Income tax owed
3. Reasonable funeral expenses
Cannot deduct:
Probate costs
53
Q
Inheritance tax
What is the transferable nature of the NRB?
How is the uplifted NRB calculated?
A
If an individual dies leaving some or all of their NRB, a claim can be made for the unused amount
to be transferred to their spouse, who will then have an uplifted NRB
Uplift the spouse’s current NRB at its current rate by the deceased’s unused % of their NRB at
the rate at the time
Q
54
Inheritance tax
How is an uplifted NRB claimed in practice?
What is one thing an uplifted NRB cannot be used for?
A
On the death of the first spouse, it is recorded as part of the second spouse’s NRB. Upon the
second spouse’s death, their executors make the claim
Lifetime tax on second spouse’s CLTs, for the reason above
Q
55
Inheritance tax
Can an individual claim an uplifted NRB from more than one deceased spouse?
A
Yes, but the uplift is capped at 100% on top of their own NRB (i.e. double their NRB)
56
Q
Inheritance tax
What two criteria must be satisfied for the residence nil-rate band (RNRB) to be available in
addition to the regular NRB?
What is the maximum relief available under the RNRB?
A
1.Estate includes a home that was used as the deceased’s private residence at some
point, and
2.Home or its sale proceeds are left to lineal descendants or spouses of such
£175,000
Q
57
Inheritance tax
To avail of the RNRB, is it necessary for the descendants to occupy the property after death?
A
No
Q
58
Inheritance tax
Does the RNRB apply to lifetime transfers?
A
No, to the death estate only
59
Q
Inheritance tax
At what total estate net valuation does the RNRB begin to taper away, and what is the rate of
taper?
At what total estate valuation is the RNRB effectively lost?
A
£2 million.
£1 taper for every £2 over
Effectively lost at £2.35m.
Q
60
Inheritance tax
What is net valuation for the purposes of RNRB taper?
A
Assets minus liabilities, but before deducting reliefs
Q
Inheritance tax
61
What are the two main reasons why RNRB would be left over to uplift that of the deceased’s
spouse?
A
1.First spouse did not have a qualifying home
2.First spouse did not have or leave home to lineal descendants
62
Q
Inheritance tax
Can an individual claim an uplifted RNRB from more than one deceased spouse?
A
Yes, but like the NRB, the uplift is capped at 100% on top of their own RNRB (i.e. double their
RNRB)
63
Q
Inheritance tax
What is the downsizing uplift in the context of RNRB?
A
Where a residence valued in excess of the RNRB is sold and replaced with a new residence which
is valued at less than the RNRB or is gifted in a way which some of the RNRB will be unused, an
uplift can be claimed reflecting the amount of RNRB which could have been used if it was the
more expensive property that was gifted
64
Q
Inheritance tax
When is quick succession relief available?
Under quick succession relief, by what % is the relief reduced for each year between the donor’s
death and the recipient’s death?
A
When an individual’s estate increased due to a chargeable transfer (on which IHT was paid)
made to them in the five years before their death
20%
Q
65
Inheritance tax
To apply for quick succession relief, does the deceased recipient still have to own the property at
the date of death?
A
No
66
Q
Inheritance tax
What is a gift with reservation of benefit?
A
Where an individual gives away an asset but continues to be able to benefit from that asset, it is
still treated as part of the donor’s estate at the date of death
67
Q
Inheritance tax
What action can the donor take to negate the rules on gifts with reservation of benefit in the
context of giving away a house but continuing to live in it?
A
Pay market rent to the recipient
68
Q
Inheritance tax
How can a donor who would otherwise be deemed to have made a gift with reservation of
benefit avoid the rule?
Where a benefit is released before death, how does HMRC treat the release?
A
Release the benefit, e.g. move out of the house, before death
As a PET valued at the date of release
Q
69
Inheritance tax
In the context of gifts with reservation of benefit, when will Pre-Owned Asset Tax apply?
A
When the rule has been avoided by, e.g., selling a house, making a cash gift which is used by
the donee to purchase a property in which the donor lives rent free
The former property owner pays income tax on the market value of their benefit
70
Q
Inheritance tax
When is tax payable on a CLT?
Who has primary liability to pay tax on a CLT, and who can HMRC pursue if this party fails to
pay?
A
Later of:
1.Six months from the end of the month in which the CLT was made, or
2.30 April after the tax year in which it was made
Donor. HMRC can pursue recipients.
71
Q
Inheritance tax
When is IHT due for a:
(1) PET where donor dies within seven years, and
(2) transfer on death?
A
1.Six months after the end of the month in which the death occurred, payable by
recipient
2.Same, payable by PRs
Same with additional tax on a CLT, payable by trustees of the recipient trust as donor is dead
72
Q
Inheritance tax
In the case of both CLTs and PETs, who may become liable if the tax remains unpaid 12 months
after the date of death?
A
The PRs
73
Q
Inheritance tax
What is the liability and what is the burden with regard to tax?
A
Liability: who must pay tax
Burden: the source of the funds used to pay tax
Q
74
Inheritance tax
Who is primarily liable for tax attributable to property subject to a gift with reservation of
benefit?
A
Recipient
PRs liable if not paid within 12 months
75
Q
Inheritance tax
Who is liable for tax on property passing outside a will or intestacy and who ultimately bears
the burden?
A
PRs liable. Beneficiaries bear the burden.
76
Q
Inheritance tax
Why is it tax efficient to make lifetime gifts of appreciating assets?
A
Because for IHT purposes, it is the value at the date of transfer, not death, that applies
1
Q
Money laundering
What are the three phases of money laundering?
A
1.Placement
2.Layering
3.Integration
2
Q
Money laundering
What happens during:
(1) placement
(2) layering, and
(3) integration?
A
1.Cash generated from crime is placed in the financial system
2.Origins of the proceeds of crime are obscured by passing them through complex
transactions
3.Funds are made to appear legitimate, by investing in businesses, etc.
Q
3
Money laundering
At what stages is a solicitor most likely to become involved in money laundering?
Can passive possession of criminal property be money laundering?
A
Layering or integration stages
Yes
4
Q
Money laundering
Although the Proceeds of Crime Act generally applies to all people, to whom are certain offences,
e.g. failure to report and tipping offreserved for?
A
Persons engaged in activities in the regulated sector
5
Q
Money laundering
What is the presumption of a predicate offence in the context of money laundering?
Is a conviction of a predicate offence required for a prosecution for a money laundering offence?
A
Money laundering offences presume that a criminal offence has occurred in order to generate
the criminal property being laundered
No
6
Q
Money laundering
Are there inchoate offences related to money laundering offences?
A
Yes. It is an offence to conspire or attempt to launder, and to counsel, aid, abet,
or procuremoney laundering.
7
Q
Money laundering
What are the three direct money laundering offences?
A
1.Concealing
2.Arrangement
3.Acquisition, use, or possession
Q
8
Money laundering
When does a person commit the offence of concealing?
A
When they conceal, disguise, convert, or transfercriminal property or remove it from the UK
Q
9
Money laundering
What is criminal property?
A
Any property derived from criminal conduct, including money, real and personal property,
and intangible property whether in the UK or not
10
Q
Money laundering
What is the extent to which concealing or disguising applies?
What is the mental state required to commit the offence of concealing (and arrangement and
acquisition)?
A
Concealing or disguising the property’s nature, but also its source, location, or ownership
Subjectively know or suspect that the property represents a benefit from criminal conduct
11
Q
Money laundering
What are the three timings which determine the authorised disclosure defence available to a
charge of concealing (and arrangement and acquisition)?
A
1.Before concealing
2.During concealing
3.After concealing
Q
Money laundering
12
What is the authorised disclosure defence if disclosure is made before concealing?
A
It is a full defence if a person makes an authorised disclosure of the act to police, customs
officer, or other nominated officer within the organisation, before the act
13
Q
Money laundering
What is the authorised disclosure defence if disclosure is made during concealing?
A
It is a full defence during the act if:
1.Person had no relevant knowledge or suspicion when the act started
2.Disclosure was made as soon as practicable after knowledge or suspicion; and
3.Disclosure was made on the person’s own initiative (not prompted by imminent
discovery/encouragement of another)
14
Q
Money laundering
What is required to avail of the authorised disclosure defence if disclosure is
made afterconcealing?
A
There must have been good reason why a disclosure was not made
15
Q
Money laundering
Which way is the conflict between disclosure as a defence to concealing and the duty of
confidentiality resolved?
In what instance can a solicitor be excused from disclosing in the context of concealing?
A
Disclosure is an exception to the general duty of confidentiality
Where legal professional privilege applies
16
Q
Money laundering
In what situation could a solicitor not rely on legal professional privilege in the context of
concealing?
A
Where the solicitor knows the transaction they are working on is a money laundering offence, or
they suspect it and their suspicions are true.
Therefore, the offence can be committed by suspecting or knowing, but where LPP applies, the
solicitor must know in order to lose the privilege, or suspect it and be right in the facts.
Q
17
Money laundering
When does a person commit the offence of arrangement?
What are the defences to arrangement?
A
When they know or suspect what they are doing facilitates the acquisition, retention, use, or
control of criminal property by or on behalf of another person
The same disclosure defence as concealing
18
Q
Money laundering
When does a person commit the offence of acquisition?
A
When they acquire, use, or possess criminal property
19
Q
Money laundering
In the context of acquisition, what is possession?
What are the defences to acquisition?
A
Physical custody
The same disclosure defence as concealing and arrangement, plus one additional defence
Q
20
Money laundering
What is the additional defence to acquisition?
A
If the criminal property was acquired, used, or possessed for adequate consideration, and
they did not know or suspect it was criminal property
Deefence not available if the accused knows or suspects that the consideration may help another
to carry out criminal conduct
21
Q
Money laundering
What are the three indirect money laundering offences?
A
1.Failure to report
2.Tipping off
3.Prejudicing an investigation
22
Q
Money laundering
When does a person commit the offence of failure to report?
A
When they suspect, know about, or should have suspected or known about money
laundering and/or terrorist financing and do not make a suspicious activity report
23
Q
Money laundering
What is the scope of information which must be reported?
Within what timescale must the solicitor make their report, and what is one acceptable reason for
delaying?
A
Anything coming the the solicitor in the course of business, and not just relating to their
clients/matters
As soon as practicable. Delay may be excused if the reason is legal advice is being sought,
provided action is still prompt.
24
Q
Money laundering
What are some available defences to failure to report?
A
1.The information falls within a privilege not excluded by AML laws
2.Information came to solicitor from a client (a) in connection with giving of legal advice
to the client or (b) seeking legal advice
Q
25
Money laundering
What is the lack of training defence to failure to report?
Who is liable for failure to train staff?
A
Employees in firms who have no knowledge or suspicion of money laundering, even though
they should, have a defence if they have not received training
The firm’s partners are liable for breach of the Regulations
26
Q
Money laundering
What are the two ways the offence of tipping offcan be committed?
Does tipping off have to be in writing and direct?
A
1.Disclosing to a third person that a suspicious activity report has been made if that
disclosure might prejudice any investigations
2.Disclosing an investigation to a third person
Tipping off can be in writing, oral, or by conduct (e.g. waiting too long or wanting to delay
and making a person suspicious), and it can be direct or indirect
27
Q
Money laundering
What are the four defences to tipping off?
A
1.Disclosures within an undertaking or group
2.Disclosures between lawyers
3.Disclosures to supervisory bodies
4.Disclosures by professional advisors to the suspect client for offence abatement
28
Q
Money laundering
What is the defence of disclosure within an undertaking or group?
A
It is not tipping off to disclose to an employee, colleague, officer, or partner in the same
undertaking/group that a SAR has been made
29
Q
Money laundering
What two criteria must be satisfied for disclosure to a different undertaking/group to not be
tipping off?
A
1.Entities share common owners, management, or control, and
2.Carry on business in EEA or country with money laundering laws equivalent to the EU
Q
30
Money laundering
What four elements must be satisfied for disclosure between lawyers to not be tipping off?
A
1.Disclosure made to legal professional in EEA or country with money laundering laws
equivalent to the EU
2.Disclosure relates to client/former client of both parties, or a transaction or provision of
services involving both
3.Disclosure is made for purposes of preventing a money laundering offence, and
4.Both parties have equivalent professional duties of confidentiality and protection of
personal data
31
Q
Money laundering
When is disclosure to a supervisory body not tipping off?
A
When the disclosure is for the purpose of prevention, investigation, or prosecution of a criminal
offence, an investigation under POCA, or enforcement of any court order under POCA
32
Q
Money laundering
What is disclosure for offence abatement defence to tipping off?
A
When the disclosure to the client is for the purpose of dissuading the client from engaging in
conduct amounting to an offence
Q
33
Money laundering
What are the two ways in which a person can commit the offence of prejudicing an investigation?
A
Know or suspect that a money laundering, confiscation, or civil recovery investigation is being or
is about to be conducted and either
1.Make a disclosure to any person that is likely to prejudice the investigation, or
2.Falsifies, conceals, or destroys documents relevant to the investigation, or causes that
to happen
34
Q
Money laundering
For the purposes of prejudicing an investigation, what are three elements that can negate the
offence for the defendant?
A
1.Did not know/suspect the disclosure would be prejudicial
2.Did not know/suspect the documents were relevant
3.Did not intend to conceal facts from person carrying out investigation
Q
35
Money laundering
Who is exempt from having an MLRO?
A
An individual who provides regulated services but does not employ any people or act in
association with anyone else
36
Q
Money laundering
What level of seniority must an MLRO be?
A
Sufficient seniority to make decisions on reporting which can impact a business’s relations with its
clients and its exposure to sanctions, and to have access to all the business’s client files
37
Q
Money laundering
What information must the MLRO report?
Must the MLRO have sole discretion to report?
A
Information or other matters leading to knowledge or suspicion (including reasonable grounds for
such) must be disclosed
Yes, this must not be subject to the consent of anyone else
Q
38
Money laundering
Who has the responsibility of reporting to the MLRO?
What is best practice when a MLRO is away and there is no replacement during their absence?
A
The individual, always
To self report any suspicions directly to the NCA as harm might arise from the delay
39
Q
Money laundering
After a SAR is submitted, what time scale does NCA have to review?
What is the situation if NCA has not responded after this time?
A
7 days
Deemed consent is given
40
Q
Money laundering
During the 7 day notice period, must all work on the matter cease?
A
No, other activities such as searches or writing correspondence can take place, but the main act
subject to the SAR must not
Q
41
Money laundering
What happens if NCA refuses consent within the 7 day window?
A
There is a 31 day moratorium during which the act must not take place, but auxiliary activities
can just like within the 7 day period
The MLRO can give consent for the act after the 31 days has passed, if the NCA has not
responded
42
Q
Money laundering
When events would trigger a requirement to carry out customer due diligence?
A
1.Establish a business relationship
2.Carry out an occasional transaction
3.Suspect money laundering/terrorist financing
4.Doubt the veracity or adequacy or documents or information previously obtained
43
Q
Money laundering
When is a solicitor-client relationship considered to be a business relationship?
A
When, at the time it is established, it is expected to have an element of duration
44
Q
Money laundering
What is an occasional transaction?
A
Transaction worth €15,000 or more, carried out other than as part of a business relationship
45
Q
Money laundering
What must a solicitor do if customer due diligence cannot be completed?
A
1.Refrain from any of the activities triggering the requirement
2.Terminate any existing business relationship
3.Consider making a disclosure to NCA
Q
46
Money laundering
What are a solicitor’s customer due diligence obligations when dealing with a trust?
A
They must verify the identity of any beneficiaries before a payment to them or before they
exercise their vested rights
47
Q
Money laundering
What should a solicitor not do until full verification is completed?
A
1.Undertake substantive work
2.Permit funds to be deposited in the firm’s client account
3.Permit property to be transferred
4.Permit final agreements to be signed
48
Q
Financial services
What is the general prohibition under the Financial Services and Markets Act 2000?
A
No person may carry on a regulated activity in the UK unless they are authorised or exempt
from authorisation
49
Q
Financial services
What is a regulated activity?
A
A specified activity in relation to a specified investment carried out in the course of
business to which no exclusions apply
Must be in the course of business
50
Q
Financial services
What are the five specified activities which are regulated?
A
1.Advising
2.Dealing as Agent
3.Arranging
4.Managing
5.Safeguarding
ADAMS
Q
51
Financial services
What is advising?
A
Giving advice to an investor on the merits of buying, selling, subscribing for, or underwriting a
particular investment
Q
52
Financial services
What is dealing as an agent?
A
Actually buying, selling, subscribing for, or underwriting a particular investment for another
person
Q
53
Financial services
What is arranging?
A
Making arrangements for another person to buy, sell, subscribe for, or underwrite a particular
investment
54
Q
Financial services
What is managing?
A
Managing assets belonging to another person in circumstances which involve the exercise
of discretion
Q
55
Financial services
What is safeguarding?
A
Protecting and administering assets belonging to another person
56
Q
Financial services
What are the six specified investments most relevant to a solicitor which are regulated?
What are two things which are not specified investments?
A
1.Insurance contracts
2.Shares/securities
3.Debentures
4.Mortgage contracts
5.Pension schemes
6.Funeral plans
1.Interests in land; 2. National savings products, e.g. Premium Bonds
57
Q
Financial services
What is the difference between an exemptionand an exclusion?
A
An exemption is from the requirement to be authorised under the general prohibition, so all
conduct would be excusable under this. An exclusion goes to whether or not the conduct is a
regulated activity and therefore caught by the general prohibition, but is not available in all
circumstances.
58
Q
Financial services
What is the Designated Professional Bodies exemption which means a regulated activity would
not violate the general prohibition at all?
A
If a solicitor provides a regulated activity incidentally to the provision of legal advice and does
not receive compensation for this from anyone else without accounting to the client for it, it is
exempted
59
Q
Financial services
How is whether an activity is incidentaldetermined for the purposes of the Designated
Professional Bodies exemption?
A
By considering whether the activity is incidental:
1.To the work the firm does as a whole, and
2.To the client’s particular matter
Q
60
Financial services
What are some activities in the SRA Financial Services (Scope) Rules to which the Designated
Professional Bodies exemption does not apply?
A
1.Recommending a client get rid of any rights under a personal pension scheme
2.The firm entering into a regulated credit agreement as lender (except in relation to
the firm’s fees)
61
Q
Financial services
In order to provide incidental financial services under the Designated Professional Bodies
exemption, what two special rules does the SRA impose on firms?
A
Firms must:
1.Let clients know at the outset that the firm is regulated by the SRA and not the FCA,
and
2.Confirm that the client is coming to the firm for this incidental service and has not
sought/relied upon any advice from the firm in relation to the transaction
62
Q
Financial services
What are four exclusions that will render a specified activity in a specified investment not a
regulated activity?
A
1.Takeover exclusion
2.Acting as trustee, nominee, or personal representative
3.Introducing or acting through an authorised person
4.The necessary exclusion
Q
63
Financial services
What is the takeover exclusion that will render a specified activity in a specified
investment not a regulated activity?
A
A solicitor can deal as agent, arrange, or advise with respect to a client who is buying/selling
50% or more of the voting shares of a company, or when the object of the transaction is taking
control of the company
Q
64
Financial services
What is the introducing/acting throughexclusion that will render a specified activity in a
specified investment not a regulated activity?
A
A solicitor may arrange/act as an agent with respect to specified investments if the client receives
advice from an authorised person and the solicitor is merely assisting the client in acting on this
advice
Q
Financial services
65
In what two circumstances is the introducing/acting through exclusion that would render a
specified activity in a specified investment not a regulated activity not available?
A
1.Where the specified investment is an insurance contract
2.Where the solicitor received payment/commission from the authorised person/any
source other than the client
66
Q
Financial services
What is the necessary exclusion that will render a specified activity in a specified
investment not a regulated activity?
A
It is not a violation of the general prohibition to carry on an activity (other than managing) if the
activity is reasonably regarded as a necessary part of providing legal services
67
Q
Financial services
In what three circumstances is the necessary exclusion that would render a specified activity in a
specified investment not a regulated activity not available?
A
1.Where the activity is managing
2.Where the activity relates to insurance policies
3.Where the activity is billed separately from the main legal advice
68
Q
Financial services
Even though they are very similar, what is the key advantage of the Designated Professional
Bodies exemption over the necessary exclusion?
A
The Designated Professional Bodies exemption is available for managing, and for activities
related to insurance policies, but the necessary exclusion cannot be used in these circumstances.
DPB will always be a better answer choice, but note the instances when it is not available.
1
Q
Seven mandatory principles
What are the Seven Mandatory Principles?
A
1.Uphold rule of law
2.Uphold public trust
3.Act with independence
4.Act with honesty
5.Act with integrity
6.Encourage equality, diversity and inclusion
7.Act in best interests of client
Q
2
Seven mandatory principles
Where two or more principles conflict, which takes precedence?
A
The principle which safeguards the wider public interest takes precedence over an individual
client’s interest
3
Q
Discrimination
What is the legal obligation to provide reasonable adjustments to disabled clients and
employees?
A
Such that they are not placed at a substantial disadvantage compared to those who are not
disabled.
Costs of the adjustment must not be passed on.
4
Q
Misleading Others
What are three ways in which a solicitor may mislead a client or the court?
A
1.Affirmative acts
2.Omissions
3.Being complicit in the acts or omissions of others
Q
5
Undertakings
What is an undertaking?
Within what timescale must an undertaking be performed?
A
Statement, oral or in writing, irrespective of use of the word undertaking…
…made to someone who reasonably places reliance on it…
…that you or a third party will do/refrain from doing something, or cause something to be
done.
Within whatever timescale is agreed, and if no time agreed, a reasonable time
Q
6
Undertakings
Who can give an undertaking?
How will an ambiguous undertaking be construed?
A
Anyone, including non-lawyers
Against the party that gave it
Q
7
Undertakings
What is the duty where an undertaking is given dependent on a future event, and it becomes
clear the event will not occur?
In what way is a solicitor bound by an undertaking?
A
Notify the recipient of the undertaking
Personally
8
Q
Evidence and Witnesses
What must witness compensation never be based on?
A
The nature of the evidence or outcome of the case
Q
9
Respect for the Court
What standard must all assertions, representations, and statements made to the court be?
A
They must be properly arguable
10
Q
Respect for the Court
What must you draw the court’s attention to?
A
Relevant cases and statutory provisions, and any procedural irregularities, which are likely to
have a material effect on the case, even if it would harm your client’s case
11
Q
Authority to Act for Client
If you have reason to suspect the authorised person’s instructions do not represent your client’s
wishes, only when can you act?
A
When you are satisfied that the instructions reflect the client’s wishes
Q
12
Authority to Act for Client
Is a solicitor allowed to represent, e.g. a husband and wife, and only take instructions from one?
A
Yes, provided it is established at the outset that the other party consents to the arrangement
Q
Authority to Act for Client
13
What happens if a client’s instructions cannot be ascertained?
A
You must continue to act to protect your client’s best interests
14
Q
Service
What two things are required of the service provided to clients?
A
1.Competent (you have the skill)
2.Timely (you have the time to dedicate to the matter)
15
Q
Client money and assets
What must you do if you receive a financial benefit as a result of a client’s instructions?
A
Account to the client for it, unless the client has already agreed otherwise
Q
16
What must you do to money and assets entrusted to you by clients and others?
A
Safeguard them
17
Q
Referrals and Introductions
What three situations would be governed by the standards concerning referrals and
introductions?
A
1.You refer a client to a third party
2.A third party refers a client to you
3.You share your fees with a third party
18
Q
Referrals and Introductions
What interests must a client be informed of when there is a referral?
A
Any financial or other personal interest you have in a referral
19
Q
Referrals and Introductions
What are two requirements of fee sharing arrangements with third parties?
A
1.Must be in writing
2.Clients must be informed of any relevant fee sharing arrangement
20
Q
Prohibited Referral Fees
What are two other types of cases in which the payment of referral fees is prohibited?
A
1.Personal injury
2.Death
(this includes ancillary claims in addition to the main claim)
21
Q
Prohibited Referral Fees
What presumption does the SRA apply when it appears a prohibited referral fee has been paid?
A
The payment is presumed to be prohibited unless you demonstrate otherwise
22
Q
Other Business Requirements for Solicitors
What is required of a solicitor carrying out any reserved legal activities in a non-commercial
body?
A
You must ensure that the body maintains indemnity insurance
23
Q
Other Business Requirements for Solicitors
Where a solicitor is carrying out reserved legal activities in a non-commercial body, what is the
required scope of the insurance?
A
Adequate and appropriate cover in respect of all services (even those which are not reserved
legal activities and would otherwise not require insurance but for the reserved legal activities)
24
Q
Other Business Requirements for Solicitors
Under the Legal Services Act 2007, what are six things considered to be reserved legal
activities?
A
1.Exercising right of audience
2.Conducting litigation
3.Preparing instruments relating to real or personal property
4.Preparing probate papers
5.Notary services
6.Administration of oaths
Q
25
Other Business Requirements for Firms
What is the standard a firm must maintain in monitoring its business affairs?
A
A firm must actively monitor its financial stability and business viability, as well as all
material risks to the business
26
Q
Other Business Requirements for Firms
If there are multiple managers in a firm, how is their responsibility split?
A
It is joint and several
27
Q
Other Business Requirements for Firms
What are five things within the purview of a firm’s Compliance Officer for Legal Practice?
A
1.Ensure compliance with terms of firm’s authorisation
2.Ensure compliance with SRA regulatory arrangements
3.Ensure the firm does not cause or contribute to a breach of the SRA’s regulatory
arrangements
4.Ensure prompt report is made of any breach
5.Ensure SRA is promptly informed of any facts or matters the COLP believes the
SRA may wish to investigate
28
Q
Other Business Requirements for Firms
What are three things within the purview of a firm’s Compliance Officer for Finance and
Administration?
A
1.Ensure compliance with SRA Accounts Rules
2.Ensure prompt report is made of any breach of SRA Accounts Rules
3.Ensure SRA is promptly informed of any facts or matters the COFA believes the
SRA may wish to investigate
29
Q
Conflicts of Interest
What are the two types of conflict?
A
1.Own interest conflict: conflict between solicitor/firm and client
2.Conflict of interest/client conflict: conflict between two or more clients
30
Q
Conflicts of Interest
What is not considered to be sufficient to create a conflict?
A
General business interest, e.g. two clients operating in the same industry, alone (unless related
of course)
31
Q
Conflicts of Interest
In a conflict situation, can a different solicitor within the firm act for the second client?
A
Generally, no. The conflict provisions cover the entire firm.
32
Q
Conflicts of Interest
What must you do if a conflict arises before retainer?
A
1.Decline to act, or
2.Act only for the client(s) whose interests you can best represent
33
Q
Conflicts of Interest
What must you do if a conflict arises after retainer?
A
1.Inform all clients
2.You can continue to act for one party, but be mindful of confidentiality issues going
forward
34
Q
Conflicts of Interest
Can a client consent to a conflict of interest?
A
No, the solicitor is bound if there is a conflict
35
Q
Conflicts of Interest
What must you do if there is an own interest conflict or significant risk of one?
A
Decline to act
Q
36
Conflicts of Interest
Are all financial interests in a client’s business an own interest conflict?
A
Yes
Q
37
Conflicts of Interest
When might a client leaving a gift of significant value to the solicitor in a will not be considered
an own interest conflict?
A
If the solicitor is satisfied the client has taken independent legal advice regarding making the gift
38
Q
Conflicts of Interest
What is another exception to a client leaving a gift of significant value to the solicitor in a will
being an own interest conflict?
A
If the solicitor’s ability to advise could not be said to be affected by the financial interest, e.g.
drawing up parents will where solicitor and siblings are treated equally
39
Q
Conflicts of Interest
Should you represent a client (1) against someone with whom you have a personal relationship
and (2) when you have a commercial interest in a business adverse to the client?
A
No, you should decline to act in both situations
Q
40
Conflicts of Interest
Can a solicitor advise a client on how to rectify a mistake that the solicitor has made?
A
Not if one of client’s options would be to bring a claim against the solicitor for professional
negligence
41
Q
Conflicts of Interest
What is the definition of client conflict?
What is a good test to consider whether you have a client conflict?
A
Where a solicitor owes separate duties to act in the best interests of two or more clients, and
those duties conflict
If you are representing two or more clients in the same matter/retainer, and your advice to one
is different than your advice to the other(s)
42
Q
Conflicts of Interest
What must you do if there is a client conflict or significant risk of one?
A
Decline to act, unless one of two limited exceptions applies
Q
Conflicts of Interest
43
What are the (1) substantially common interest and (2) competing for the same
objective exceptions to a client conflict?
A
1.Two or more clients have a clear common purpose in relation to a matter and
a strong consensus on how it is to be achieved
2.Two or more clients are competing for an objective, which if attained by one will
make it unattainable for the other(s)
44
Q
Conflicts of Interest
Regarding the competing for the same objective exception to a client conflict, what is
an objective?
A
An asset, contract, or business opportunityvia:
1.Liquidation or other insolvency process
2.Auction or tender process
3.Bid or offer which is not public
Q
45
Conflicts of Interest
Even where there is a valid exception to a client conflict, what conditions must be met before you
can act?
A
1.Client has given informed consent, given or evidenced in writing
2.Effective safeguards are in place to protect confidential information, where
appropriate
3.You are satisfied that it is reasonable to act for all clients
46
Q
Conflicts of Interest
In the context of the conditions required even when there is a valid exception to a client conflict,
what should a solicitor consider when determining whether it is reasonable to act for all clients?
A
1.Will the clients benefit from the solicitor acting for each of them?
2.Will there be extensive negotiationsbetween the clients?
3.Is there an imbalance in knowledge or bargaining power between the parties?
47
Q
Duty of Confidentiality
What are two instances in which you do not have to keep a client’s affairs confidential?
A
1.Disclosure is required or permitted by law
2.The client consents
Q
Duty of Confidentiality
48
What are five instances in which disclosure of a client’s confidential information is permitted by
law?
A
2.
Solicitor discloses client’s will to an attorney under Lasting Power of Attorney
3. Solicitor is being used by client to perpetrate a crime/fraud
4. Statutory requirement, e.g. disclosing tax affairs
5. Statutory duty, e.g. money laundering
6. Court order or police warrant
49
Q
Duty of Confidentiality
What are three instances in which breach of the duty of confidentiality may be justified?
Is disclosure made after one of the three instances acceptable?
A
1.To prevent a criminal offence that will result in serious bodily harm
2.Where the client has indicated they intend to commit suicide or serious self-harm
3.To protect a child or vulnerable adult
No, disclosure must take place before the fact as the point is the prevention of harm
Q
50
Duty of Confidentiality
For how long does the duty of confidentiality last?
A
Forever. It continues beyond the end of the retainer and the death of the client.
Therefore, client always includes former client
51
Q
Duty of Disclosure
What is the duty of disclosure?
A
Any individual advising a client must make that client aware of all information relevant to
the client of which the individual is aware
52
Q
Duty of Disclosure
What are four instances in which disclosure to the client is not required?
A
1.Client gives informed consent, in writing to non-disclosure
2.You believe disclosure would cause serious injury to a person
3.Legal restrictions are imposed due to national security or prevention of a crime e.g.
tipping off
4.You are only aware of the information because it is contained in privileged
documents disclosed to you by mistake
Q
Conflict between Confidentiality and Disclosure
53
What are the two exceptions to the rule that you should not act for client A where A has an
adverse interest to current/former client B for whom you hold confidential information which
is material to A?
What is meant by material information?
A
1.Effective measures have been taken which result in there being no real risk of
disclosure, e.g. team working on A’s matter will not have access to B’s file, or
2.B gives informed consent, given or evidenced in writing
It must be relevant and of more than consequential interest to the client
54
Q
Notifying SRA of Certain Events
What three events must a solicitor notify the SRA of?
A
1.Subject to any criminal charge, conviction, or caution
2.Insolvency event
3.Aware of material changes to information about you or your practice provided to
the SRA
55
Q
Notifying SRA of Certain Events
What five events must a firm notify the SRA of?
A
1.Indications of serious financial difficulty
2.Insolvency event
3.Intention or awareness that it will cease operating as a legal business
4.Any change to information in the register
5.Aware of any material changes to information about the firm, or its managers,
owners, or compliance officers provided to the SRA
56
Q
Reporting Actual and Potential Breaches
What must you do if you become aware any person or body (including yourself) has committed
a serious breach?
A
Ensure that a prompt report is made to SRA/relevant regulator
Report any facts or matters which you reasonably believe are capable of amounting to
a serious breach
57
Q
Reporting Actual and Potential Breaches
What are six allegations that are taken seriously by the SRA?
A
1.Abuse of trust
2.Dishonesty
3.Taking unfair advantage of clients
4.Misuse of client money
5.Sexual or violent misconduct
6.Criminal behaviour
58
Q
Reporting Actual and Potential Breaches
What are four factors that could aggravate conduct to a serious breach?
A
1.Deliberately or wrecklessly disregarding their obligations
2.Taking advantage of vulnerability
3.Causing harm that could have been reasonably anticipated
4.Pattern of repeated misconduct
59
Q
Solicitor May Inform SRA Indirectly
How can you satisfy your obligation to report via a COLP or COFA?
When you make a report to a COLP or COFA, do you have to follow up?
A
Make the report to the COLP or SOFA on the understanding that they
will provide the information to the SRA
Generally, the obligation is discharged and you are not required to check
Q
Solicitor May Inform SRA Indirectly
60
What must you do if you are not satisfied the COLP or COFA agrees with your assessment of the
seriousness of the breach?
A
Make the report directly to the SRA
61
Q
Admitting Mistakes to Clients
What must you do if you make a mistake and a client suffers harm as a result?
A
1.Put matters right (as far as possible)
2.Provide a full explanation of what happened and the likely impact promptly
62
Q
Admitting Mistakes to Clients
Why would a firm generally not act to put things right until after their insurer is notified?
A
Because depending on what the insurer advises, the firm may be placed into a conflict with the
client
Q
63
What is the first thing you must identify in any matter?
A
Who you are acting for
64
Q
Informing Client of Regulation
What things must you inform the client of at the outset?
A
1.How the services are regulated
2.How this affects protection available to the client
3.Which activities will be carried out by you
65
Q
Keeping Client Informed About the Matter
What must a client be able to make informed decisions about?
A
1.The services they need
2.How they matter will be handled
3.The options available to them
66
Q
Keeping Client Informed About the Matter
What information must a client receive about pricing?
A
The best available information about:
1.How the matter will be priced
2.Likely overall cost, both at engagement and as matter progresses
If it becomes apparent initial costs will increase, you must notify the client and do not wait until
the end of the matter
67
Q
Complaints Handling
What three things must a client be informed of in writing at the outset?
A
1.The right to complain
2.How and to whom complaints can be made
3.The right to complain to the Legal Ombudsman
Q
68
Complaints Handling
How should complaints be handled?
A
Promptly, fairly, and free of charge
Q
Publicity
69
What must you ensure that publicity in relation to your practice is not?
A
Inaccurate and misleading
70
Q
Publicity
Is public advertising e.g. on billboards allowed?
A
Generally, yes
71
Q
Publicity
What can you not do?
A
1.Make unsolicited approaches to members of the public in order to advertise legal
services
2.Advertise in a targeted or intrusive way
Q
72
Publicity
What is an exception to the rule that you may not make unsolicited approaches or advertise in a
targeted way?
A
You may approach current and former clients to advertise legal services
1
Q
What is trespass to land?
A
Unlawful direct interference with the claimant’s possession of land
2
Q
What does it mean that trespass to land is actionable per se?
A
The claimant does not need to show any actual damage or injury to the land. The mere fact the
right has been infringed is enough.
Q
3
What type of possession of the land must the claimant have to bring a claim?
A
Exclusive possession
Q
4
What four things are included in the definition of land?
A
1.Land
2.Buildings on the land
3.Subsoil
4.Airspace up to a height necessary for the ordinary use of land and buildings
Q
5
What type of interference is required for trespass?
A
Direct interference; indirect will not suffice
Q
6
Is it trespass to allow your animal to stray onto another’s property?
A
Yes
Q
7
Whilst indirect interference will not suffice for trespass to land, what might it give rise to a claim
in?
A
Nuisance
8
Q
To commit the intentional tort of trespass to land, what does the defendant have to intend and
what is their intent irrelevant with regard to?
A
They must merely intend to enter/interfere with the land. They need not intend to trespass or
even know that the land belongs to another.
9
Q
Does a claimant who enters land involuntarily commit trespass?
A
No
10
Q
What is the one instance where trespass can be committed by negligent interference?
A
Defendant knows that their animals are likely to enter the claimant’s land but carelessly fails to
prevent them from doing so
Q
11
What is the defence of lawful entry with regard to trespass to land?
A
A defendant whose presence is lawful, e.g. via statutory authority, does not commit trespass
12
Q
What is the defence of necessity with regard to trespass to land?
A
There is no trespass where a defendant enters land because it was necessary to preserve life or
property
13
Q
What are the two types of remedies for trespass and what are the two subcategories of the first
type?
A
1.Damages: notional if no damage suffered; actual if damage suffered
2.Injunction
Q
14
If a claimant wishes to engage in self-help to cure the trespass, what must they not do and what
is the one exception to this?
A
It is a criminal offence for a person, other than a displaced residential occupier, to use violence
or threaten to do so to secure entry to premises occupied by another
15
Q
What are the three types of trespass to the person, and are they actionable per se?
A
1.Battery
2.Assault
3.False imprisonment
All are actionable per se.
16
Q
What is battery?
A
Intentional direct application of unlawful force to the claimant’s person
17
Q
For battery, what is force?
A
Any unwanted physical contact, unless generally acceptable in the ordinary conduct of life, e.g.
brushing shoulders in a crowd
Q
18
Is contact with the claimant’s clothing force?
A
Yes, e.g. throwing paint which splashes a claimant’s jacket
Q
19
Can an involuntary act of force amount to battery?
A
No. It must be intentional.
Q
20
What does the defendant need to intend to commit battery and what need he not intend?
A
Must intend to apply the force. Need not intend to harm the victim.
Q
21
Can the intention to apply force be transferred to a different victim?
A
Yes
Q
22
What is assault?
A
An intentional act which causes the claimant to reasonably apprehend an immediate battery
23
Q
What must the defendant intend to commit assault?
A
They must intend that the claimant apprehend the use of force
24
Q
What must be true for a claimant to be deemed to have apprehended force?
A
They must be aware of the force or threat of force
25
Q
Does apprehension require the defendant to be afraid?
A
No
26
Q
Does force need to be applied for an assault to be committed?
A
No
27
Q
What must be true of the claimant’s apprehension of immediate force?
A
It must be reasonable
28
Q
What are the two effects words can have on an assault?
A
Words can:
1.Give rise to an assault, e.g. “I’m going to punch you right now!”
2.Negate an assault, e.g. “If I weren’t such a good person, I would punch you!”
Q
29
What is false imprisonment?
A
Unlawful constraint of the claimant’s freedom of movement from a particular place
Q
30
What must the defendant intend for false imprisonment, and what need they not intend?
A
They must intend to constrain the claimant’s freedom of movement. They need not intend that
the constraint be unlawful.
Q
31
Is it a defence to false imprisonment that the defendant thought they had a right to detain the
claimant?
A
No
Q
32
What must be true of the constraint for it to amount to false imprisonment, and what negates
this?
A
It must be a complete constraint. This aspect, and therefore false imprisonment generally, is
negated if the claimant can actually move in a certain direction, or if there is a reasonable means
of escape, even if these avenues are not the preferred ways the claimant wishes to go
Q
33
Must the claimant be aware of the constraint in order to have a claim for false imprisonment?
A
No
Q
34
What are the four defences to trespass to the person?
A
1.Consent
2.Necessity
3.Self-defence
4.Lawfulness of conduct
Q
35
Why is consent to medical treatment necessary to avoid battery?
A
Because an adult of sound mind and full understanding is entitled to withhold consent for
medical treatment, even where it is necessary to save the claimant’s life
36
Q
What is implied consent in sport?
A
Participants in sport are taken to impliedly consent to contacts which occur within the rules of the
game
Q
37
What are athletes not taken to impliedly consent to?
A
Contact which occurs outside the rules of the game.
Compare this to and don’t get confused by criminal battery, where the consent defence is still
available for contact which is just outsidethe rules of the game.
38
Q
What are the limitations on the consent defence?
A
Not available when:
1.Consent was induced by fraud, misrepresentation or duress, or
2.Consent is apparently given to serious physical injury
Q
39
When is the defence of necessity available?
A
When the defendant acts reasonably to prevent harm
Q
40
When is self-defence available?
A
When the defendant honestly and reasonably uses force that is proportionate to the force used
against them or that they believe is about to be used against them
41
Q
Why is it a defence to trespass to the person to show that the conduct was lawful?
A
Because inherent in the torts is the requirement that the conduct be unlawful
42
Q
What is trespass to goods?
A
Intentional and direct interference with the claimant’s possession of goods
43
Q
In what three ways can an interference with goods be achieved?
A
1.Taking the goods
2.Damaging them
3.Interfering with them by e.g. moving them
44
Q
What must the defendant intend to commit trespass to goods, and what need he not intend?
A
Must intend to do the act of interference, but need not intend to commit the tort of trespass
45
Q
What remedy is available to a claimant who has been deprived of goods?
A
Damages at the market value of the goods
46
Q
When will a person commit the tort of conversion?
A
When they deal with goods in a way which is seriously inconsistent with the rights of the
owner
47
Q
What must the defendant intend to commit conversion, and what need he not intend?
A
Must intend to do the act of interference, but need not intend to infringe the claimant’s rights
1
Q
What are the three elements of negligence which must be proved?
A
1.Defendant owes claimant duty of care
2.Defendant breached that duty
3.Defendant’s breach caused damage to the claimant
2
Q
What are seven examples of an established duty situation, in which the first element is assumed
and does not need to be proven?
A
1.Driver to other road users
2.Doctor to patients
3.Teacher to pupils
4.Parent to child
5.Solicitor to client
6.Employer to employee
7.Manufacturer to consumers
3
Q
What is a novel duty situation?
A
Where there is no established duty, and the first element must be proven
4
Q
What are the three elements required to establish a duty in a novel duty situation?
A
1.Foreseeability
2.Proximity
3.Whether fair, just and reasonable to impose a duty
5
Q
What is the requirement of foreseeability in establishing a duty?
A
Defendant’s negligence created a foreseeable risk of harm to this claimant
6
Q
What is the requirement of proximity in establishing a duty?
A
There must be sufficient cause and effect relationship between the defendant’s conductand
the harm suffered
7
Q
What are the four situations considered exceptions to the general rule that there is no duty to
act?
A
1.Special relationship between the parties
2.Control over the claimant
3.Actions of third parties under the control of the defendant
4.Rescue situations
8
Q
In addition to express relationships, what can a special relationship situation arise from?
A
Where the defendant assumes responsibility towards the claimant or their property
Q
9
What is the duty owed by a rescuer?
A
To not make the situation any worse
Q
10
On the exam, how might a situation in which a rescuer doesn’t appear to make the situation
worse be part of a trap?
A
If a person decides to rescue, and then abandons the attempt leaving the victim no worse off,
they could still be deemed to have made the situation worse if their initial rescue attempt
dissuaded others from helping
Q
11
What is the requirement for the harm suffered to be within the scope of the duty of care?
A
If the harm was not within the scope of the defendant’s duty of care, damages will not be
recoverable even if the defendant owed a duty and acted negligently
12
Q
What is the standard of care in the context of breach of duty?
A
Defendant is required to take reasonable care, i.e. an objective and impersonal standard
accepted of a reasonable person
Q
13
How is breach initially assessed?
A
Whether the defendant fell below a reasonable standard of care
Q
14
What two factors will the court consider in assessing whether the defendant exercised reasonable
care?
A
1.Magnitude of the risk involved in the activity, and
2.Practicability of taking precautions to avoid that risk
Q
15
What two questions will the court ask in assessing the magnitude of risk?
A
1.How likely is it that harm will occur, and
2.How serious is the potential harm?
16
Q
Is the likelihood of harm assessed at the time or with the benefit of hindsight?
A
At the time
17
Q
What is expected of a defendant the greater the potential harm?
A
The more precautions they must take
Q
18
Can an under-skilled defendant rely on this to argue they were not in breach of duty?
A
No
Q
19
How is the level of competence required of a professional carrying out something which exceeds
their skillset determined?
A
Based on the task they are undertaking, not their level of skill
20
Q
What is required of defendants who are acting within the competence of their skill or profession?
A
They must meet the level of skill of a reasonably competent member of their profession
21
Q
What is the test for whether a professional fell below a reasonable standard?
A
Whether they acted in accordance with a responsible body of professional opinion
22
Q
Is a doctor in breach of duty if they carry out a procedure with due care and skill, but fail to
warm a patient about risk, and these risks occur through no fault of their own? Why?
A
Yes. Because knowledge of the risks, even if they weren’t to be caused by the doctor’s
negligence, goes to informed consent.
Q
23
What is the standard expected of a child defendant?
A
The standard of a reasonable child of the defendant’s age
Q
24
What are the three conditions for res ipsa loquitur to apply?
A
1.Absence of any explanation for the incident
2.Thing which caused the incident was under the control of the defendant, and
3.Incident would not normally happen if proper care was taken
Q
25
How can a defendant rebut an inference of res ipsa loquitur?
A
By showing that they did exercise reasonable care
Q
26
What is the admissibility of convictions for criminal offences involving negligence?
A
They are admissible in civil claims arising from the same incident
Q
27
What is required for causation?
A
Claimant must show that defendant’s breach of duty caused the loss
28
Q
What are the three stages is establishing causation?
A
1.Factual causation
2.No new intervening acts
3.Damage not too remote
(2 and 3 are collectively called legal causation)
29
Q
What is the test for factual causation?
A
But for the defendant’s breach of duty, the claimant would not have suffered the loss
30
Q
What is the collective term given to stages 2 and 3 of establishing causation, to distinguish them
from causation in fact (factual caustion)?
A
Causation in law (legal causation)
31
Q
When does the but for test also apply?
A
When there is more than one possible alternative cause of the claimant’s loss
32
Q
What is the standard of proof for causation?
A
On balance of probabilities
33
Q
What must the claimant prove when one injury results from different causes acting
together?
A
Claimant must prove that defendant’s breach of duty made a material contribution to the
claimant’s loss
Q
34
Where an injury is divisible, how are damages apportioned, and what does this mean for the
claimant?
A
Damages are apportioned between the defendants according to the share of injury each of
them caused.
A claimant must therefore sue all defendants in order to recover in full.
35
Q
How does this differ where an injury is indivisible?
A
Claimant can recover damages in full from any of the defendants
Q
36
If a claimant recovers in full from one defendant for an indivisible injury, what is the defendant’s
option to recover money?
A
The paying defendant can recover a contribution from the others, having regard to the share of
damage caused by each
37
Q
What is the second defendant’s liability where they harm a person already harmed by a previous
defendant?
A
Only to the extent that their negligence made the claimant’s damage worse than it already was
38
Q
What is the effect of a new intervening act?
A
It will break the chain of causation
39
Q
When will the intervening act of a third party break the chain of causation?
A
Only if it was not reasonably foreseeable
40
Q
When will the intervening act of the claimantbreak the chain of causation?
A
When the claimant acted entirely unreasonably
41
Q
Will an intervening natural event break the chain of causation?
A
Yes
42
Q
What is the test for remoteness of damage?
A
Whether the claimant’s damage was a reasonably foreseeable result of the defendant’s
negligence
43
Q
What are the two exceptions to the basic rule of reasonable foreseeability with regard to
remoteness of damage?
A
1.Egg shell skull
2.Similar in type rule
44
Q
What does the similar in type concern?
A
Where the claimant suffers a type of harm which is reasonably foreseeable, but the way in
which it occurs is unforeseeable, they can still recover
45
Q
What are the four defences to negligence, and which are partial/complete?
A
1.Contributory negligence (partial)
2.Volenti non fit injuria (complete)
3.Exclusion of liability (complete)
4.Claim based on illegal act (complete)
Q
46
What is the definition of contributory negligence?
A
A failure by the claimant to take reasonable care for their own safety which contributes to their
harm
Q
47
To avail of contributory negligence defence, does a defendant have to show claimant’s
negligence contributed to the happening of the accident?
A
No, just that it contributed to the harm suffered
Q
48
What is the two part test for volenti non fit injuria?
A
1.Claimant had full knowledge of the risk, and
2.Claimant freely and voluntarilyassumed the risk
Q
49
Harm caused to whom in what situation is excluded from arguing the volenti non fit injuria
defence?
A
Passengers in road traffic accidents
1
Q
What are the three types of harm categorised as pure economic loss?
A
1.Damage to property which does not belong to the claimant
2.Cost of damage to a defective product which is acquired by the plaintiff
3.Financial loss not flowing from damage to claimant’s property or person
2
Q
Is pure economic loss generally recoverable?
A
No
Q
3
When is a duty owed for pure economic loss caused by negligent statements, in exception to the
general rule that PEL is not recoverable?
A
When the party knows the purpose of the statement and to whom it is made, and that party
relies on it to their detriment
4
Q
What is consequential economic loss and is it recoverable?
A
Loss which is a consequence of physical injury or damage, and is recoverable.
It is not PEL, because the loss is not purelyeconomic.
Q
5
Although the cost of damage caused to a defective product acquired by the defendant is not
recoverable, what should this be distinguished from which is recoverable?
A
Where the defective product causes damage to other property, as long as the damaged property
is owned by the claimant
6
Q
When a claimant is able to establish the defendant owed a duty with respect to pure economic
loss, what must the claimant then show?
A
That defendant breached the duty by falling below a reasonable standard, and causation (the
usual way)
1
Q
What are the elements required to show pure psychiatric harm?
A
Same as negligence generally:
1.Duty
2.Breach
3.Causation
Q
2
What instance of psychiatric harm is excluded from the rules discussed in this deck, and can be
recovered under the regular rules of negligence, and why?
A
Psychiatric harm which is a consequence of physical injury, as long as the physical injury was
foreseeable.
Because a defendant must take the claimant as they find them, so psychiatric reactions are in
scope.
Q
3
What is the duty of care owed to primary victims?
A
Primary victims are owed a duty of care in relation to psychiatric harm without physical injury,
provided there was a foreseeable risk of physical injury to them
4
Q
For a primary victim to recover, does the psychiatric harm need to be foreseeable?
A
No
5
Q
What four criteria must be satisfied for a duty of care to be owed to secondary victims?
A
1.Must be reasonably foreseeable that a person of normal fortitude in the claimant’s
position would suffer psychiatric harm
2.Claimant must have close ties of love and affection with a person in the zone of danger
3.Claimant must be present at the accident or its immediate aftermath, and
4.Claimant must witness events with their own unaided senses
6
Q
What is required of the psychiatric harm in order to be able to claim, and what is the impact of
this limitation?
A
It must be a medically recognised condition, meaning that no duty of care is owed regarding
medically unrecognised or undiagnosedconditions
7
Q
What is the requirement of sudden shock for secondary victims?
A
For a duty to be owed for harm caused to a secondary victim, the harm must be caused by
a sudden shocking event rather than psychiatric harm accrued over a longer period of time,
e.g. watching a primary victim relative deteriorate over time in hospital
8
Q
Does the requirement of sudden shock apply to primary victims?
A
Not necessarily (helpful I know)
9
Q
What can negate the consideration of sudden shock altogether in an exam question?
A
Where the incident is within an employment context, a claimant can bypass all of this and just
claim against the employer
10
Q
When a claimant is able to establish the defendant owed a duty with respect to:
1.Pure Economic Loss, or
2.Psychiatric harm,
in both cases, what must the claimant then show?
A
The usual aspects required to recover under negligence, i.e. defendant breached the duty by
falling below a reasonable standard, and the breach caused the damage.
11
Q
What are the two types of victim in a psychiatric harm case and what distinguishes them?
A
1.Primary victim: in the actual zone of danger or reasonably believes they are
2.Secondary victim: not in the zone of danger
1
Q
What are the standard elements of negligence which apply in employers’ liability cases?
A
The usual:
1.Duty
2.Breach
3.Causation
The usual negligence defences are available.
2
Q
What is the scope of an employer’s duty to employees?
A
To take reasonable care for their safety
3
Q
What is an employer’s duty regarding the staff it hires?
A
To take reasonable care to ensure that fellow staff with whom employees work are competent
4
Q
What two situations will an employer be liable regarding fellow employees?
A
1.Employee not adequately trained to operate equipment
2.Employee regularly makes jokes/engages in horse play; employer is aware but fails to
take action, and injury results
5
Q
What is an employer’s duty regarding a safe system of work?
A
Employer must devise a safe system of work, and provide adequate supervision to ensure
implementation and enforcement
6
Q
What can an employer delegate and what can they not delegate?
A
Employer can delegate implementing safety systems to a contractor, but they can never delegate
their duty of care and will be liable if something goes wrong
7
Q
Where an employer delegates a task, when will they breach their duty?
A
If the person to whom the task is delegated fails to take reasonable care
8
Q
What standard is expected of an employer?
A
That which would be expected of a reasonable employer
9
Q
To refresh, two things will the court will consider when determining whether the employer
exercised reasonable care?
A
1.Magnitude of the risk
2.Practicability of taking precautions
Q
10
What is the impact of the employer owing a duty to each employee individually?
A
The individual circumstances of each employee are relevant to the precautions that should be
taken, e.g. safety goggles may be required for employees blind in one eye because the risk of
losing an eye makes them completely blind
Q
11
Where a risk is present, why is the date of knowledge within an industry relevant?
A
Because an employer cannot reasonably be expected to take precautions against a risk before it
becomes known
Q
12
What does the Employer’s Liability (Defective Equipment) Act 1969 provide where an employee is
injured in the course of work by equipment provided by their employer?
A
If the defect is attributable to fault on the part of some third party (e.g. supplier or
manufacturer, whether identified or not), the employer will alsobe deemed to be negligent.
However, as a corollary, if the facts suggests there is no fault on the part of the third party, none
can be attributed to the employer.
13
Q
Do the standard causation rules and usual defences apply after all of this can be established?
A
Yes
1
Q
What is vicarious liability?
A
Liability of one person for the torts committed by another
2
Q
What are the two questions to ask when considering vicarious liability of an employer, when a
tort is committed by someone else?
A
1.Was the person an employee?
2.Acting in the course of employment?
Q
3
In determining whether someone is an employee, what are five factors the economic reality
testwill consider over a purely literal interpretation of the label given to the role?
A
1.Person carrying out the work personally
2.Does employer have control over how the work is done
3.Which party owns the equipment
4.Is there a uniform?
5.Who is taking the financial risk?
4
Q
In determining whether a tort was committed in the course of employment, what question will
the court ask?
A
Was the tort so closely connected with the task that the employee was employed to do that it
would be fair and just to hold the employer liable?
Q
5
Will negligence of an employee in carrying out their work take them outside the course of
employment?
A
No
Q
6
Does the fact the tort committed by the employee was also a criminal act negate vicarious
liability?
A
No
7
Q
What are the two ways an employer’s prohibition can limit an employee?
A
1.Limit the scope of employment, e.g. not allowed to drive company vans
2.Limit the manner of employment, e.g. must drive company vans within the speed limit
Q
8
Breach of what type of prohibition will take an employee outside the course of employment?
A
Breach of a prohibition limiting the scope of employment
Q
9
What determines whether a deviation from employment will take an employee outside the course
of employment?
A
The degree of the deviation
Q
10
What must be true of a deviation before it will be determined to be outside the course of
employment?
A
Whether the degree of the deviation could be considered to be a separate independent journey
for the employee’s own purposes
11
Q
In addition to those deemed employees, who else might a person be vicariously liable for the tort
of?
A
Any person with whom they have a relationship akin to employer/employee
12
Q
What three factors will the court consider in determining a relationship is akin to employeremployee, and attach the same liability as if it was?
A
1.Tort committed as a result of activity undertaken on behalf of the vicarious party
2.Tortfeaser’s activity is integral part of vicarious party’s business, and
3.Vicarious party created the risk by assigning the activity to the tortfeasor
13
Q
In what two situations might an employer be personally, as opposed to vicariously, liable for a
tort committed by an independent contractor?
A
1.Employer in breach of their own non-delegable duty of care, or
2.Employer is in breach of their own duty to take reasonable care in selecting a
contractor
Q
14
What is an employer’s non-delegable duty of care regarding an independent contractor?
A
If an employer engages an independent contractor to carry out activities within the scope of the
employer’s duty, the employer’s own duty is breached if the contractor does not take reasonable
care
Q
1
What is the aim of damages in tort?
A
To place the claimant, so far as money can, in the same position they would have been in had
the tort not occurred
2
Q
Does a claimant have a duty to mitigate their loss?
A
Yes
3
Q
What are pecuniary losses?
A
Any financial losses suffered by the claimant as a result of the injury caused by the defendant
4
Q
What is past income and is it capable of precise calculation?
A
Income lost in the period between injury and trial/settlement and is capable of precise calculation
5
Q
What are the two ways in which a claimant’s injuries may cause them to lose future income?
A
1.Claimant unable to return to work at all
2.Claimant can return to work, but due to the injuries, they can only work a job with a
lower rate of pay
6
Q
How are damages assessed when the claimant is unable to return to work?
A
Multiply the claimant’s pre-accident annual income and multiply it by the number of years of lost
income, with adjustments made to reflect the lump sum payment and the fact that the
claimant could have lost his job in the future
7
Q
How are damages assessed when the claimant is able to return to work but only to a job with a
lower rate of pay?
A
Same as where unable to return to work, except the difference between old and new salaries is
multiplied by the years of lost income
Q
8
How are damages assessed when the claimant has a shortened life expectancy?
A
The claimant can recover for the income they would have earned in the lost years, adjusted
based on the amount they would have spent on expenses during those years
Q
9
Is a claimant expected to mitigate their loss by accepting treatment provided by the NHS instead
of seeking private care?
A
No
Q
10
What is a nonpecuniary loss?
A
Non-monetary losses such as pain and suffering and the loss of amenity which it causes
11
Q
Are damages available for both past and future pain and suffering and loss of amenity?
A
Yes
12
Q
What is the unconsciousness limitation on recovery for pain and suffering?
A
Any period the claimant was unconscious or in a condition where they were not feeling pain or
actually suffering is subtracted from the damages. However, they can still claim for loss of
amenity during this time.
13
Q
What are the damages based on where property is (1) destroyed and (2) damaged?
A
1.Cost of replacement
2.Diminution in value, often the cost of repair
Q
14
Are consequential costs, e.g. of hiring a replacement whilst your own replacement is sorted, or
during repair, recoverable?
A
Yes
But not if you had borrowed the thing which was damaged or destroyed from another person
(pure economic loss)
15
Q
What is the difference between special damages and general damages, and what types of
damages come under each heading?
A
1.Special damages can be precisely calculated at the time of trial, including past loss or
earnings and past expenses
2.General damages need to be assessed by the court, including future loss of
earningsand future expenses, as well as nonpecuniary damages for future pain and
suffering or loss of amenity
16
Q
What are the two types of damages claim which arise on death?
A
1.If a claimant dies, their existing cause of action may continue for the benefit of the
estate
2.If a victim dies, a new cause of action may arise for the benefit of their dependents
and for bereavement
17
Q
Where a claimant dies, what damages are recoverable and what are not recoverable by their
estate?
A
Recoverable: Pain and suffering, loss of amenity, and expenses and loss of earnings up until
death
Not recoverable: Any damages after the period of death, and no claim for the death itself
18
Q
Does whether or not the cause of death of a claimant is related to the tort change anything
about the continuation of their claim?
A
No
Q
19
What is one type of claim which will not survive the death of a claimant?
A
Defamation
Q
20
Do causes of action against a defendant who dies survive?
A
Yes, and can be brought again against their estate
21
Q
Only what three groups can recover damages for bereavement?
A
1.Spouse/civil partner
2.Cohabiting partner of deceased for 2 years prior to death
3.Parents, only if deceased was under 18 and never married
22
Q
Who are two groups who are not eligible for bereavement damages but who could be used as
trap answers on the exam?
A
1.Parents of a child over 18
2.Children upon death of a parent
23
Q
What are the two conditions that must be satisfied to claim damages for loss of dependency?
A
1.Eligible person (usually same parties who are eligible for bereavement), and
2.Financially dependent on the deceased
1
Q
Regarding the premises, to what aspect do the relevant Occupiers’ Liability Acts apply?
A
The condition of the premises, not activities carried out on the premises
2
Q
What are the two Acts and what do they deal with?
A
 Occupiers’ Liability Act 1957 deals with an occupier’s duty to visitors
 Occupiers’ Liability Act 1984 deals with an occupier’s duty to persons other than
visitors
3
Q
Who is a visitor under the 1957 and 1984 Acts?
A
A person whom the occupier has invited or permitted to be on the premises
Q
4
Under the 1957 Act, what does a person become if they enter the premises as a lawful visitor but
exceed the scope of that permission?
A
Trespasser
5
Q
What is an occupier under both the 1957 and 1984 Acts?
A
The person who has control over the premises, who need not be the owner
Q
6
In a landlord-tenant situation, who is generally the occupier and what are some exceptions to
this?
A
The tenant is generally the occupier, except for parts which have been excluded from the lease,
e.g. common staircase
Q
7
What is a premises?
A
Land, and any buildings on the land.
The 1957 Act further applies to any fixed or moveable structure, e.g. scaffolding or ladders
Q
8
What is the duty of care owed by an occupier to visitors under the 1957 Act?
A
Duty to take reasonable care so the visitor is reasonably safe in using the premises for the
purpose they have been invited or permitted
9
Q
Does an occupier’s duty under the 1957 Act also apply to a visitor’s property?
A
Yes
10
Q
To refresh, what two things will the court consider when determining whether the occupier
exercised reasonable care, which apply to both the 1957 and 1984 Acts?
A
1.The magnitude of the risk
2.Practicability of taking precautions
11
Q
Under the 1957 Act, how should an occupier treat children?
A
Occupier should expect children to be less careful than adults, so may be required to take more
precautions to avoid harm to children
12
Q
Under the 1957 Act, what is someone “exercising their calling” and how should an occupier
expect them to behave?
A
Someone on the premises for a particular task, e.g. electrician. They should be expected to be
aware of dangers posed by things germane to their calling, e.g. electrician should be aware of
exposed wires and dangers posed
13
Q
Even when they warn a visitor of a danger, only when will an occupier discharge their liability if
the visitor is harmed?
A
When the warning was enough to enable the visitor to be completely safe, such that the injury
is basically the claimant’s fault
14
Q
Under the 1957 Act, what are the two conditions for an occupier to not be liable for damage
suffered by faulty work of an independent contractor?
A
1.Occupier acted reasonably in choosingan independent contractor, and
2.Occupier took reasonable steps to be satisfied that the contractor
was competent and the work was properly done
If this is done, the occupier is not liable.
15
Q
After a visitor establishes that the occupier breached their duty, what must they do?
A
Establish causation in the usual way
16
Q
Under the 1957 Act, is the occupier allowed to exclude duty?
A
Yes, with some limitations on occupiers who are businesses
17
Q
Although liability can be excluded under the 1957 Act
If an occupier is acting in the course of business, what limitations are placed on their ability
to exclude liability under the 1957 Act?
A
1.Cannot exclude liability for death or personal injury
2.Liability for other damage can only be excluded if reasonable
Q
18
Where an occupier is free to exclude liability, through what means can they achieve this?
A
Through contract, or an effective non-contractual notice
19
Q
What two things are required of a contractual clause or notice excluding liability under the 1954
Act to be effective?
A
Exclusion must:
1. Cover the damage in question
2. Have been adequately brought to claimant’s attention
20
Q
When must an exclusion be adequately brought to the claimant’s attention where it is (1) by
contract and (2) by notice?
A
1.Incorporated into the contract and brought to visitor’s attention of
the beforecontract is made
2.Notice must be before visitor encounters the risk for which liability is excluded
Q
21
When liability is to be excluded by notice under the 1954 Act, is it necessary to show that the
visitor was actually aware?
A
No, as long as reasonable steps were taken to bring it to the visitor’s attention, the fact they
didn’t look at it or missed it does not preclude notice being effective
22
Q
What is a trespasser under the Occupiers’ Liability Act 1984?
A
Someone who comes onto premises without permission or who enters with permission and
exceeds the scope of such
23
Q
What are the definitions of occupier and premises under the 1984 Act?
A
Same as under the 1954 Act.
Occupier: Person who has control over the premises, who need not be the owner
Premises: Land, and any buildings on the land, minus the fixed/moveable option under the
1954 Act
24
Q
What three conditions must be met before a duty is owed to a trespasser under the 1984 Act?
A
1.Occupier aware of danger, or ought to be
2.Occupier aware that trespasser may encounter the danger, or ought to be
aware, and
3.The danger is one against which it would be reasonable to expect the occupier to
offer protection
25
Q
Where a duty is owed to a trespasser under the 1984 Act, what is that duty?
A
Duty to take care so that trespasser is not injured by the danger
26
Q
Does the duty owed to a trespasser under the 1984 Act extend to property?
A
No
27
Q
What is the standard of care under the 1984 Act?
A
The same as negligence and the 1954 Act, so the court will have regard to the magnitude of the
risk and the practicability of taking precautions
28
Q
In what two ways may an occupier discharge their duty under the 1984 Act?
A
By taking steps to:
1.Give a warning of the danger, or
2.Discourage trespasser from incurring the risk
29
Q
Can a duty be excluded under the 1984 Act?
A
The 1984 Act is silent as to exclusion so it is not clear whether duty can be excluded in the same
way as under the 1954 Act
30
Q
What two negligence defences are available to an occupier under both the 1957 and 1984 Act?
A
1.Volenti non fit injuria
2.Contributory negligence
Q
31
When might a landlord owe a duty under the Defective Premises Act 1972?
A
Given up control to a tenant and as such are no longer the occupier, but the lease obliges a
landlord to make repairs or permits landlord to enter premises to do so
Q
32
What is the duty under the Defective Premises Act 1972 ?
A
Landlord owes a duty, regarding defects, to take reasonable care so that anyone who might
be affected by a defect is reasonably safe from personal injury or damage to their property
Also applies to builders if house is inherently defective.
1
Q
What are the usual elements of negligence which must be proven when a claimant is injured by a
defective product?
A
1.Duty or care
2.Breach of duty
3.Causation
Usual defences available.
2
Q
What two conditions must be satisfied for a manufacturer to owe a duty of care to the end
customer of that product?
A
1.Manufacturer put the product into circulation in the form in which it is intended to
reach the end consumer, and
2.No reasonable expectation of an intermediate examination of the product before
reaching the consumer
3
Q
To whom will the manufacturer owe a duty?
A
Anyone whom it is reasonably foresee would be affected by a defect in the product
4
Q
Who is the duty owed by?
A
The person who manufactured the product, but the class of defendants can also extend to those
who install/repair products
Q
5
Will a retailer who merely supplies a product generally come under this duty?
A
No, unless they reasonably ought to have inspected the product for defects before supplying it
Q
6
What is the extent of the duty which will be owed by a manufacturer?
A
Personal injury caused by the product and economic loss consequential to the injury
7
Q
Does the duty of care extend to damage caused to property by a defective product?
A
Yes, but damage caused to the defective product is specifically excluded and cannot be
claimed for
Q
8
Are the usual negligence defences available?
A
Yes
Q
9
What is the strict liability regime under the Consumer Protection Act 1987 for damage caused
by defective products?
A
When damage is caused by a defect in a product in a consumer context, it is not necessary to
prove that it arose because of fault on the part of the defendant, but it is still necessary to prove
the defect
Q
10
Who can claim under this CPA regime?
A
Anyone who suffers damage caused by a defect
11
Q
What three categories of parties may be a defendant under the CPA regime?
A
1.Manufacturer/producer of the product
2.Any person who held themselves out as a manufacturer/producer of the product by
putting their own mark on it, and
3.Any person who imported the product to supply it in their course of business
Q
12
Under the CPA regime, what is the liability of the defendants where there are two or more?
A
Joint and several
Q
13
What three conditions must be satisfied for a supplier to be liable under the CPA regime?
A
1.Person who suffered damage requests identity of producer within a reasonable time
2.Not reasonably practicable for the claimant to identify the producer on their own, and
3.Supplier fails to identify the producer (or its own supplier) within a reasonable time
14
Q
Under the CPA regime, when is a product defective?
A
When its safety is not of the standard people generally are entitled to expect
15
Q
In determining whether a product’s safety is not of the expected standard and therefore
defective, what two things will be taken into account?
A
1.Packing, and purposes for which it was marketed
2.Instructions and warning provided
3.What is expected to be done with the product
Q
16
What is the definition of damage under the CPA regime?
A
Death or personal injury, or damage to property
Q
17
Damage to what three things is excluded under the CPA regime?
A
1.Damage to the defective product itself (contract option still available)
2.Business property (naturally as it is the Consumer Protection Act)
3.Property damage which does not exceed £275
18
Q
What are the four defences available under the CPA regime?
A
1.No defect when product first put into circulation
2.Product not supplied in the course of business
3.State of the Art defence
4.Contributory negligence
19
Q
What two conditions must be met to argue the defence that the product was not supplied in the
course of business?
A
1.Defendant was not acting in the course of business when they supplied, and
2.Defendant either was not the produceror the product, or the defendant was not
acting with a view to profit
Q
20
What must be shown for the state of the artdefence?
A
Due to the state of scientific and technical knowledge at the time the product was supplied, the
producer could not have been expected to discover the defect even if it existed
21
Q
In what situation is the state of the art defence not available?
A
Where a class of products carries a known riskof containing a defect and a defect arises,
the defence will not be available
Q
22
Can liability be excluded under the CPA regime?
A
No
Q
1
How is a claim established if a statute expresslyprovides for the imposition of civil liability?
A
By applying the specific provisions of the statute
Q
2
What is the effect of a statute expressly providing that a duty imposed thereunder does not give
rise to a civil claim?
A
A claim cannot be brought under that section
3
Q
If a statute is silent as to whether a duty thereunder gives rise to a civil claim, what five
questions will the court consider?
A
1.Did Parliament intend to give rise to a civil claim?
2.Is claimant within the class of persons protected by the statutory duty
3.Was the statutory duty breached?
4.Was the damage suffered of a kind the statute was intended the prevent?
5.Was causation of damages established
4
Q
In considering whether Parliament intended to give rise to a civil claim, what two things will the
court consider?
A
1.Whether the duty was imposed for the protection of a limited class of the public, and
2.Whether the statute provides any other means of enforcement or other remedies
1
Q
What are the three forms of nuisance?
A
1.Private
2.Public
3.Statutory
Q
2
What is a public nuisance?
A
Unreasonable interference with the comfort and convenience of life of a class of the public
Q
3
Can an isolated incident give rise to a public nuisance?
A
Yes
Q
4
Does public nuisance cover personal injury and damage to property?
A
Yes
Q
5
Who are the two parties who can sue for public nuisance?
A
1.An individual in the class if they have suffered damage over and above the damage
suffered by the class in general
2.The Attorney General on behalf of the class to stop the nuisance
6
Q
What is a private nuisance?
A
Unlawful interference with the claimant’s use and enjoyment of land.
Unlawful means unreasonable and substantial.
Compare to trespass to land which is the unlawful and direct interference with a
claimant’s possession of land.
Q
7
For the purposes of private nuisance, when is an interference unlawful?
A
When it is unreasonable and substantial
Q
8
Can an isolated event give rise to a private nuisance?
A
No, it requires a continuing state of affairs
9
Q
What is the most essential element of nuisance?
A
Damage
10
Q
What are the three types of damage that can give rise to private nuisance?
A
1.Physical damage to land, e.g. flooding, vibrations
2.Amenity damage, e.g. noise, smells, dust
3.Encroachment into land, e.g. overhanging branches or tree roots
Q
11
Regarding intangible damage like noise and smells, what is the key difference between nuisance
and negligence?
A
Intangible damage is not actionable in negligence
Q
12
Regarding damages, what is the key difference between private nuisance and negligence?
A
The types of damages available for personal injury in negligence are not available in private
nuisance, as nuisance deals with interference with land.
Note public nuisance allows for recovery personal injury.
13
Q
What is the difference between trespass to land and nuisance?
A
Trespass to land concerns intentional and direct interference with claimant’s possession of land.
Nuisance concerns damage which is indirect and which goes to enjoyment of the land.
14
Q
What two parties can be sued for private nuisance?
A
1.Creator of the nuisance even if they are no longer in occupation
2.Occupier of the land where the nuisance exists
15
Q
The occupier is also liable for nuisance created on their land by whom?
A
1.Employees
2.People under occupier’s control
3.Independent contractors, if the conduct carries a special danger of causing a
nuisance
16
Q
In what situation is an occupier liable for a nuisance created on their land by a trespasser or
natural event?
A
If they adopt (make use of) or continue (fail
to deal with after they know or ought to of) the nuisance
Q
17
When will an occupier be deemed to adopt a nuisance?
A
If they make use of the thing that constitutes the nuisance for their own purposes
Q
18
When will an occupier be deemed to continue a nuisance?
A
If they fail to take reasonable steps to deal with the nuisance when they know or ought to have
known about it
Q
19
What must a claimant have to be able to bring a claim for private nuisance?
A
A proprietary interest in the land affected
20
Q
Who will be deemed to have a proprietary interest in the land?
A
1.Freehold owners
2.Leasehold owners
3.Tenants
4.Persons in exclusive possession
21
Q
Can claims be brought by people merely present on the land, e.g. family members, lodgers, or
employees?
A
No
22
Q
In determining whether an interference is unreasonable for the purposes of assessing whether it
is unlawful and therefore a nuisance, what five factors will the court take into account?
A
1.Intensity and duration
2.Character of the neighbourhood
3.Abnormal sensitivity
4.Malice
5.Reasonable care
23
Q
What is also considered under intensity and duration?
A
The time of day or night the nuisance occurs
24
Q
When will the court consider the character of the neighbourhood?
A
When the damage is amenity damage such as noise or smells
Q
25
Is the character of the neighbourhood taken into account where the damage is physical or
encroachment onto the land?
A
No
Q
26
What is abnormal sensitivity?
A
If the interference only exists because the claimant has an abnormal sensitivity, this will not give
rise to a nuisance
Q
27
How does malice affect how behaviour is assessed by the courts?
A
Reasonable and lawful behaviour can become actionable in nuisance if motivated by malice
Q
28
Is the court concerned with the reasonableness of the defendant’s conduct?
A
No, just the reasonableness of the interference
Q
29
What is the effect of the court being concerned with the unreasonableness of the
intereference, and not taking into account the reasonableness of the defendant’s conduct?
A
Defendant can still be responsible for a nuisance even if they took reasonable care
Q
30
What is required of the damage to be actionable?
A
It must be reasonably foreseeable
31
Q
What are the two defences to private nuisance?
A
1.Prescription
2.Statutory authority
32
Q
When will a defendant be deemed to have obtained a prescriptive right to carry on a nuisance?
A
1.Activity amounting to a nuisance carried on for 20 years
2.Someone in occupation on the land
3.No action was taken to stop the nuisance within the 20 years
Q
33
How must the courts interpret a statute if it is deemed to permit an actionable nuisance?
A
To ascertain exactly what nuisance has been permitted, and what, if any, remedies are available
Q
34
Is the grant of planning permission a defence to nuisance?
A
No
35
Q
Is the fact the nuisance already existed when the occupier took over the land a defence to
nuisance, and what is the effect of this?
A
No.
It means the claimant has a cause of action against either the occupier in occupation when the
nuisance began or the current occupier
36
Q
What are the three remedies available for nuisance?
A
1.Injunction
2.Damages
3.Abatement
Q
37
What is the defence of abatement?
A
A self-help remedy in which the claimant takes steps to stop the nuisance
38
Q
What is the limit on the steps the claimant can take?
A
No more than is necessary to stop the nuisance
39
Q
Where it is necessary for the claimant to enter the land of another to stop a nuisance, via
abatement, what must the claimant do before?
A
Give notice and allow time for necessary remedial action to be taken
Q
40
When proper notice is given in an abatement situation, what is this a defence to?
A
An action in trespass to land brought by the person whose land you entered
Q
41
What is the rule in Rylands v Fletcher?
A
Strict liability is imposed when there is an escape of a dangerous thing from the
defendant’s land in the course of a non-natural use of the land
42
Q
Therefore, what are the three elements for liability to arise under Rylands v Fletcher?
A
1.Defendant brings something onto their land likely to cause harm if it escapes
2.Defendant was engaged in a non-natural use of the land
3.The thing does escape and cause damage
43
Q
Does the thing brought onto the land have to be inherently dangerous?
A
No, just dangerous if it escapes
Q
44
What is required of the use for it to be non-natural?
A
Defendant must be engaged in a special use of the land which carries an increased risk of
danger to others
Q
45
Regarding damages, and the exact same as with nuisance, what is the key difference between
Rylands v Fletcher and negligence?
A
Recovery for personal injury damage in negligence are not available in R v F, as it deals with
interference with land
46
Q
What is required of the damage to be recoverable under Rylands v Fletcher?
A
It must be reasonably foreseeable as a consequence of escape
47
Q
What are the five defences available to liability under Rylands v Fletcher?
A
1.Escape caused by unforeseeable act of stranger
2.Act of God against which it is impossible to take precautions
3.Consent, express or implied
4.Contributory negligence
5.Statutory authority
Q
1
What three elements are required for a contract?
A
1.Agreement (offer and acceptance)
2.Intention to be legally bound
3.Consideration
2
Q
What are three ways a simple contract can come into existence?
A
1.In writing
2.Orally
3.Through conduct of parties
3
Q
What are three examples of contracts which must be in writing?
A
1.Guarantees
2.Contracts for sale/disposition of an interest in land
3.Consumer credit agreements
Q
4
How are contracts in electronic form typically treated?
A
They will be considered properly executed as if they were in writing
5
Q
What is a deed?
A
A document which makes it clear on its face that it is a deed
6
Q
What are the two requirements for a deed?
A
1.Executed by the parties to it in the presence of a witness
2.Delivered
Q
7
In the context of a deed, what does delivered mean?
A
Any act indicating the parties’ intention to be bound
Q
8
What are two instances where a contract must be made via deed to be enforceable?
A
1.Promises where nothing is received/promised in return (avoids consideration issue)
2.Conveyance/transfers of land (the actual land itself; not to be confused with the
contract to sell/dispose of an interest in land)
9
Q
What is the timing advantage in having a contract made by deed as opposed to a contract not
made by deed?
A
12 years to bring a claim for breach, as opposed to 6
Q
1
What is required for a communication to be an offer?
A
It must create a reasonable expectation in the offeree that the offeror is willing to enter into a
contract on the basis of all material terms contained in the offer
Q
2
An expression of what is required for a communication to be an offer?
A
An expression of a promise, undertaking, or commitment to enter into a contract
Q
3
What is required of the essential terms of an offer?
A
The essential terms must be definite and certain, and not too vague, uncertain, or incomplete
4
Q
What is the basic inquiry required to determine if an offer contains definite and certain terms?
A
Whether enough of the essential terms have been provided so that a contract including them
would be capable of being enforced
Q
5
Does an offeree need to have knowledge of an offer?
A
Yes
Q
6
How does an offeree acquire knowledge of an offer?
A
The offer must be communicated to them
Q
7
Is a statement made in response to a request for information an offer?
A
No
Q
8
What is a unilateral contract?
A
A contract which arises when an offeror promises to do something if the offeree does something
in return and the offeree actually does this thing
Q
9
What is the effect of termination of an unaccepted offer?
A
It cannot be accepted
Q
10
What is a revocation?
A
A retraction of an offer by the offeror
Q
11
How is an offer revoked directly?
A
By directly communicating the revocation to the offeree before acceptance
12
Q
How is an offer revoked indirectly?
A
If the offeree receives:
1.Correct information
2.From a reliable source
3.Of acts of the offeror which would indicate to a reasonable person that the offeror no
longer wishes to make the offer
Q
13
What is required for revocation to be effective?
A
It must be received by the offeree
Q
14
What are two limitations on an offeror’s power to revoke?
A
1.Collateral contract
2.Beginning performance under an offer for a unilateral contract
15
Q
What is a collateral contract?
A
A separate contract which is collateral to an offer, in which the offeror promises (supported by
consideration from the offeree) to not revoke an offer within an agreed time period
16
Q
Why is a unilateral offer irrevocable once performance has begun?
A
Because it would be unfair on the offeree if the offeror could revoke the offer after the offeree
has already begun performance
Q
17
Even though a unilateral offer is irrevocable once performance has begun, when is the contract
formed and what is the effect of this for the offeree?
A
The contract is formed when performance is complete.
This allows the offeree to withdraw from performance at any time, even though the offeror
cannot revoke after they begin.
18
Q
Even though beginning performance under a unilateral and bilateral offer both make the offer
irrevocable, what are the differing reasons for this?
A
Unilateral: beginning performance would make it unfair for offeror to revoke, even though
contract is not formed until completion
Bilateral: beginning performance accepts the offer and a contract is formed
Q
19
How may an offeree terminate an offer?
A
By rejection, either expressly, or impliedly e.g. through a counteroffer
Q
20
What is an express rejection?
A
A statement by the offeree that they do not intend to accept the offer
Q
21
When is a rejection effective?
A
When received by the offeror
22
Q
What is the effect of a counteroffer?
A
It rejects the original offer and makes a new one, reversing the roles of the parties
23
Q
What is the test for whether a communication is a counteroffer or a mere inquiry consistent with
the original offer being live?
A
Whether a reasonable person would believe that the original offer had been rejected
Q
24
Does rejection or counteroffer regarding a collateral contract affect the offer that the collateral
contract concerns?
A
No
Q
25
How is an offer terminated through lapse of time?
A
If offeree does not accept within a time specified by the offeror, or within a reasonable time if no
time is specified
26
Q
What does the court take into account when determining if a time period is reasonable for the
purposes of lapse?
A
The subject matter of a contract, e.g. a reasonable time in which to accept an offer for
perishable goods will be shorter than non-perishable
27
Q
What are the four ways in which an offer may be terminated by operation of law?
A
1.Death of offeror/offeree
2.Destruction of subject matter of offer/proposed contract
3.Supervening illegality
4.Failure of a condition contained in the offer
Q
28
What is acceptance?
A
A manifestation of unqualified assent to the terms of an offer
29
Q
Who has the power to accept an offer?
A
Anyone (including anyone within a particular class) to whom the offer was made
30
Q
Can the power to accept be assigned?
A
No
31
Q
Why does an agent accepting the terms of an offer on behalf of a principal not breach the
prohibition on assigning the power to accept?
A
Because the agent is entering the agreement on behalf of the principal, and it is the principal
who will be party to the contract
Q
32
Can a person accept an offer they are not aware of?
A
No.
Even if they unknowingly perform what would be required of an offeree, there is no contract if
they were not aware of the offer.
33
Q
How can an offer be accepted?
A
Unless a specific method is stipulated in the offer, an offer can be accepted in any reasonable
manner and by any reasonable medium
Q
34
What is the effect of an offeree accepting the offer but not through a method stipulated in the
offer?
A
The acceptance is not valid, unless the method is just different but no less advantageous to the
offeror
Q
35
Is someone who accepts a unilateral offer by performance obligated to complete performance?
A
No
Q
36
Is the offeree in a unilateral offer required to notify the offeror that they have begun
performance?
A
No
(applies to unilateral only)
Q
37
What is the offeree in a unilateral offer required to notify the offeror of?
A
That performance has been completed, within a reasonable time after completion
Q
38
If a non-unilateral offer is to be accepted by conduct, what must the offeree do?
A
Make the offeror aware, so as to satisfy the communication of acceptance requirement
Q
39
Must acceptance always be communicated?
A
Yes, unless the offer provides that acceptance need not be communicated
40
Q
Must waiver to communication of acceptance be express?
A
No, it can be implied through conduct, e.g. merely sending goods without other communication
can be deemed acceptance of an offer to buy
Q
41
What is the postal rule?
A
Acceptance by post is effective when posted
Q
42
What are 3 instances in which the postal rule will not apply?
A
1.Letter not properly addressed and stamped
2.Unreasonable for acceptance to be communicated by post
3.Offer stipulates, expressly or impliedly, that acceptance is not effective until received
Q
43
What is the only element to which the postal rule applies?
A
Acceptance
44
Q
Does the postal rule apply to instantaneous communication, e.g. email?
A
No
45
Q
What is the battle of the forms?
A
In a battle between parties regarding whose standard terms to use, the last party to make an
offer on their own terms is likely to win the battle, because the other party will have accepted
that offer by their conduct
Q
46
What is a prevail clause?
A
A clause in a party’s draft contract stating that their terms will prevail over any terms which the
offeror seeks to introduce
Q
47
What difficulty do prevail clauses present?
A
When the other party makes a counteroffer to enter into the contract on their terms, they are
rejecting the whole of the original offer, which would include the prevail clause
1
Q
For a contract to be binding, what do both parties need to intend?
A
To be legally bound by it
2
Q
How must intention to be legally bound be communicated?
A
Mutually, either expressly or impliedly
3
Q
What is the presumption regarding intention to be legally bound in domestic situations (married
couple, family member)?
A
That the parties do not intend to be legally bound
Q
4
What is required to rebut the presumption against intention to be legally bound in domestic
situations?
A
Objective evidence to the contrary
5
Q
Even where objective evidence to the contrary is used to rebut presumption against intention to
be legally bound in domestic situations, what will prevent it from being rebutted?
A
If either party has actual knowledge that the other does not intend to be legally bound
6
Q
What is the presumption regarding intention to be legally bound in social situations?
A
Same as domestic
7
Q
What is a situation in which the courts have found the presumption against intention to be legally
bound in social situations to be rebutted?
A
Where friends or family members join together to enter a race or competition
8
Q
What trap on the exam concerning a social situation should we look out for?
A
Social parties, e.g. friends or family, acting within a commercial context
9
Q
What is the presumption regarding intention to be legally bound in commercial situations?
A
Strong presumption that the parties intend to be legally bound
10
Q
What is required to rebut the presumption against intention to be legally bound in commercial
situations?
A
Clear and unambiguous evidence to the contrary
Q
11
If a commercial party does not intend to be legally bound, what should they do to rebut the
presumption?
A
State that their agreement is “subject to contract” or “binding in honour only”
Q
12
What is the implication in a commercial situation where an agreement is subject to contract?
A
That a legally binding agreement will follow
Q
13
What is the effect of a contract entered into by a minor?
A
Voidable by the minor, with some exceptions
Q
14
When is a minor bound by a contract?
A
When they ratify the contract
Q
15
How does a minor ratify a contract?
A
By adopting it after they turn 18
16
Q
What are three exceptions to the general rule that a contract cannot be binding on a minor?
A
1.Contracts for necessaries
2.Employment contracts that benefit them
3.Contracts for the acquisition of a permanent interest in property
Q
17
What contracts for necessaries are binding on a minor?
A
Any contract for necessary goods or services at a reasonable price
Q
18
In the context of a contract for necessaries with a minor, what is deemed “necessary”?
A
This is subjective, based on the minor in question
Q
19
When is a contract for the acquisition of a permanent interest in property not binding on a
minor?
A
When the minor expressly repudiates the contract
20
Q
Why is a contract for the acquisition of a permanent interest in property binding on a minor,
unless expressly repudiated?
A
Because under the contract, an ownership interest passes to the minor
Q
21
Under the Minors’ Contracts Act 1987, what will the court do in a situation where under a
contract, the other party has transferred property to the minor under a voidable contract?
A
Require the minor the send the property back, if it is just and equitable to do so
Q
22
What is the effect of a contract entered into by an individual lacking mental capacity?
A
Voidable, if the other party knew that they lacked capacity
Q
23
What are four factors to consider when judging if a person lacks capacity?
A
1.Unable to understand information relevant to the decision
2.Unable to retain such information
3.Unable to weigh up such information
4.Unable to communicate their decision
24
Q
If a person lacking mental capacity enters into a contract, can they ratify the contract?
A
When they recover
Q
25
Does the necessaries exception apply to mental incapacity?
A
Yes
Q
26
Is intoxication considered a mental incapacity?
A
Yes
Q
27
What does the Companies Act 2006 say about corporate capacity?
A
The validity of an act done by a company cannot be called into question by reason of anything in
the company’s constitution
1
Q
What is the most basic definition of consideration?
A
An act or forbearance of one party, or the promise of such
Q
2
What is the difference between executory and executed consideration?
A
Executory: act or forbearance to be performed in future
Executed: state of consideration when it is performed
Q
3
Must consideration be provided by parties to the contract, or can a third party provide it?
A
Only parties to the contract
4
Q
What is required for a third party to enforce the terms of a contract under the Contract (Rights of
Third Parties) Act 1999?
A
1.The third party must not be a party
2.The third party must be named in the contract, expressly or as part of a described class
3.The term is to be enforced for the third party’s benefit
Q
5
Are the courts concerned with whether consideration is adequate?
A
No, just that it is sufficient
Q
6
What is one situation in which the inadequacy of consideration may be taken into account?
A
When it is used as evidence of a vitiating factor concerning mistake or duress
Q
7
What is illusory consideration?
A
Consideration without some value in the eyes of the law
8
Q
Whilst performance of an existing obligation is generally not good consideration, what are three
exceptions to this?
A
1.A promise going beyond the original obligation
2.Where performance conveys a practical benefit on the party offering additional
consideration, e.g. avoidance a monetary fine
3.Performance of an obligation owed to a third party
Q
9
Why is a promise going beyond the original obligation good consideration?
A
Because it is effectively a new contract
Q
10
Is performance of an existing statutory duty good consideration?
A
No, unless performance goes above and beyond that duty
Q
11
What is an exception to the general rule that past acts or performance are not good
consideration?
A
When the act or performance was done at the promisor’s request, and there was an implied
understanding that payment would follow
12
Q
What are the three criteria for arguing the implied understanding of payment exception?
A
1.Act done at promisor’s request
2.Parties understood that the act was to be remunerated
3.The payment would be legally enforceable if it was made in advance of the act
Q
13
What is the rationale behind the general rule that part payment of a debt is not consideration for
the having the debt discharged?
A
There is no fresh consideration to make the creditor’s promise to accept less legally binding
Q
14
What are some exceptions to the general rule that part payment of a debt is not consideration
for the having the debt discharged
A
1.Debt of uncertain value, disputed in good faith: the promise to pay something is
deemed consideration
2.Unliquidated claim generally (amount owed is uncertain)
3.Payment at a different place or earlier payment
4.Payment through a different means (if the creditor requests it)
5.A third party makes the payment (on the basis that an agreement reached in good faith
would discharge the debt)
6.A composition between debtor and ALL creditors to accept less
Q
15
What is promissory estoppel?
A
An equitable principle which gives legal effect to an agreement unsupported by consideration
Q
16
Can promissory estoppel be used as grounds for a claim as well as a defence?
A
Just a defence
Q
17
What are the three criteria for promissory estoppel to apply?
A
1.Clear and unequivocal promise (express or implied) by the promisor that they won’t rely
on existing legal rights
2.The promisee has altered their position in reliance on the promise
3.It must be inequitable for the promisor to go back on their promise
1
Q
What are the key aspects of the doctrine of privity of contract?
A
1.Only parties to a contract can sue and be sued under it
2.A third party generally cannot acquire rights under a contract
3.A third party cannot be burdened by a contract
2
Q
What are the criteria for third party to enforce a term of a contract under Contracts (Rights of
Third Parties) Act 1999?
A
1.Contract expressly provides the third party may enforce the term OR
2.The term purports to confer a benefit on the third party AND it appears from the terms
of the contract that the parties intended the term to be enforceable by the third party
Q
3
To enforce a term of a contract under Contracts (Rights of Third Parties) Act 1999, must the third
party be named in the contract?
A
Either named, or be a member of a benefiting class of people described in the contract (but who
need not have existed when the contract was made)
4
Q
Does the Contracts (Rights of Third Parties) Act 1999 allow obligations under a contract to flow
to third parties?
A
No, only benefits
5
Q
What are some contracts to which Contracts (Rights of Third Parties) Act 1999 does not apply?
A
1.Employment contracts
2.Articles of association of a company
3.Contracts which expressly exclude the Act from applying
6
Q
What are the three criteria, any of which will prevent parties to a contract from changing the
contract to the detriment of a third party without consent?
A
1.Third party has communicated his agreement to the term benefiting him, or
2.Third party has relied on the term of the contract and the party to the contract is
aware, or
3.The party to the contract can reasonably be expected to have foreseen that the third
party would rely on the term, and the third party did rely on it
Q
7
Where an agent enters into the contract on behalf of a principal, who are the parties to the
contract?
A
The principal and the third party only
Q
8
What is an exception to the rule that a contract entered into by an agent on behalf of a principal
is binding only on the principal and the third party?
A
Where the agent acts for a principal undisclosed to the third party, both the agent and the
principal can sue and be sued under the contract
Q
9
Can both the benefit and burden of a contract be assigned?
A
Just the benefit
10
Q
How can parties transfer obligations under a contract and what is the effect of this measure?
A
By entering in a novation agreement, which releases the former party/parties, and binds the new
party/parties
11
Q
What is subrogation?
A
Where a party, by e.g. paying an insurance or making a guarantee payment, stands in the shoes
of the contract party and has all the rights the contract party would have against the person
responsible for the loss or to whom guarantee was paid
12
Q
What is the collateral contract exception to privity?
A
Where there is a collateral contract between the contract party and a third party, the court may
impose obligations on a non-contracting party.
Q
13
How can trusts be used to avoid privity issues?
A
If A makes a promise to B for the benefit of C, the courts may find that B holds A’s promise on
trust for C, which allows C to enforce the promise directly against A
Q
1
What are the two types of contract terms?
A
Conditions and warranties
Q
2
Can contract terms be express and implied?
A
Yes
Q
3
What is the difference between a term and a representation?
A
A term is intended by the parties to form part of the contract.
A representation is made merely to induce a party to enter into the contract.
Q
4
How is it determined whether a statement is a term or a representation?
A
Based on the intentions of the parties, viewed objectively through their conduct from the
perspective of a reasonable person
5
Q
How will the court likely classify an oral statement which was not included in a written contract,
and why?
A
As a representation, because if the parties thought it was important enough to be a condition,
they should have put it in the written contract
6
Q
What are the three factors a court will take into account when determining whether a statement
is a term or a representation?
A
1.Importance of the statement
2.Stage of negotiations at which the statement was made
3.Whether the party making the statement had any specialist skill
Q
7
What is the question to ask when considering whether a statement is important?
A
If the other party wouldn’t have entered into the contract but for the statement, it is likely to be
deemed important, and therefore a term
8
Q
What is the question to ask when considering specialist skill?
A
Did the seller make a factual statement that should be within the scope of their knowledge,
intending that the other party would act on the statement
9
Q
Why is the distinction between term and representation important?
A
If the statement turns out to be untrue, the available remedies depend on whether it was a term
or representation
Q
10
What is the impact of a statement being deemed a term?
A
Any failure to comply will be a breach of contract, entitling the other party to damages
Q
11
What is the impact of a statement being deemed a representation?
A
If it is untrue and it has not been incorporated into the contract, the remedy will depend on
whether the misrepresentation was made innocently, negligently, or fraudulently
12
Q
Why is the distinction between condition and warranty important?
A
It determines the remedies which are available upon breach
13
Q
Along with condition and warranty, what is the third category of term, where it is unclear
whether it is a condition or warranty?
A
Innominate term
Q
14
What will the courts give more weight to: the term’s label or its effect on the operation of the
contract?
A
The term’s effect on the operation of the contract
15
Q
What is a condition?
A
A term so fundamental that it goes to the root of the contract, and the contract does not work
without it
Q
16
What is another name for a breach of condition?
A
Repudiatory breach
Q
17
What options are available to the other party upon a breach of condition?
A
They can terminate the contract and sue for damages
Q
18
What is the effect of the other party affirming a contract after breach of condition?
A
They lose the right to terminate, but can still sue for damages
Q
19
What is a warranty?
A
A term that is incidental/collateral to the main terms of the contract
Q
20
Can the other party terminate the contract for breach of warranty?
A
No
Q
21
With innominate terms, how does the court determine what remedy should be available?
A
By looking at the effect of the breach
Q
22
In what instance will the court deem an innominate term to be a condition?
A
Where the other party loses substantially the whole of the benefit of the contract due to the
breach
Q
23
What is the effect of time being of the essence on whether a term is a condition or warranty?
A
Time of the essence: the term is a condition(late performance gives rise to right to
terminate)
Time not of the essence: the term is a warranty
24
Q
When is time presumed to be of the essence?
A
In commercial contracts, where a delivery time has been agreed
25
Q
Regarding notice, what is required for a term to form part of a contract?
A
The parties must have reasonable notice of it
Q
26
What is the parol evidence rule?
A
When a contract is in writing, there is a general presumption that external evidence cannot vary
the terms of the written contract
27
Q
What are three exceptions to the parol evidence rule?
A
1.Implied terms
2.If there is a secondary (collateral) contract
3.Where the court finds that the contract was always partly written and partly oral
28
Q
What is an entire agreement clause?
A
A term in written contracts which provides that the written document constitutes the entire
agreement between the parties
Q
29
What is one instance in which the courts are unwilling to uphold an entire agreement clause?
A
Where it is being used by a party to avoid liability for misrepresentation
Q
30
What is the binding effect of an implied term?
A
Same as if it had been expressly agreed between the parties
31
Q
What are four ways through which terms are implied?
A
1.Statute
2.Courts
3.Custom and usage, or
4.A course of dealing between the parties
32
Q
What are the three main sources of law through which contract terms are implied?
A
1.Sale of Goods Act 1979
2.Consumer Rights Act 2015, and
3.Supply of Goods and Services Act 1982
33
Q
What is an important term implied by the SGA?
A
That the seller has legal right to sell the goods
34
Q
What is the impact of a seller not having title?
A
There is no consideration, and therefore no valid contract
35
Q
What are other terms implied by the SGA?
A
Goods sold should:
1.match any description given by the seller
2.be of satisfactory quality (if seller is a business), and
3.be fit for any particular purpose made known to the seller by the buyer (if seller is a
business)
36
Q
What does satisfactory quality mean?
A
1.Fit for the purpose for which such goods are generally used
2.Free from minor defects
3.Safe and durable
Q
37
What defects are excluded when considering satisfactory quality?
A
1.Defects brought to the buyer’s attention
2.Defects that would have been obvious to the buyer had they inspected the goods prior
to sale
Q
38
Are terms implied under SGA conditions or warranties and what is the importance of this?
A
Conditions, meaning that if they are breached, the buyer can terminate the contract, reject the
goods, and refuse to pay, but must return the goods
Q
39
When is a breach of terms implied under the SGA a breach of warranty?
A
When the breach is so slight that it would be unreasonable for the buyer to reject the goods
Q
40
What does the Unfair Contract Terms Act 1977 provide regarding SGA implied terms?
A
1.UCTA prevents a seller from excluding the implied term as to title
2.Exclusion of liability for all other implied terms will be valid only if reasonable
41
Q
What are some terms implied by the Supply of Goods and Services Act 1982?
A
1.Supplier will carry out service with reasonable care and skill
2.Supplier will carry out service within reasonable time (if no time is agreed)
Q
42
Are terms implied by the SGSA conditions, warranties, or innominate terms?
A
Innominate terms
Q
43
What terms are implied under SGSA for goods supplied incidental to the provision of services?
A
The same terms which are implied under SGA
Q
44
What does the Unfair Contract Terms Act 1977 provide regarding SGSA implied terms?
A
Same as for SGA
Q
45
What is the scope of the Consumer Rights Act 2015?
A
Supply of goods/services in a consumer context, i.e. between trader and consumer
46
Q
What is a big difference between CRA and SGA/SGSA?
A
Under CRA, liability for breach of implied terms cannot be excluded at all
47
Q
What are four terms implied by the CRA into contracts for services?
A
1.Carried out with reasonable care and skill
2.Completed in accordance with information relied upon by the consumer (e.g. price)
3.Completed for a reasonable price
4.Completed within a reasonable time
48
Q
Although the courts are reluctant to interfere with the presumed intentions of the parties
generally, other than in the statutory contexts, when are they prepared to imply terms into
contracts?
A
To give business efficacy to the contract, i.e. make it work in a way which reflects the parties’
intentions and expectations
49
Q
What is the officious bystander test in the context of a court implying terms into a contract?
A
They will only do so if the term to be implied is so obvious to a reasonable person that
it goes without saying
50
Q
What kind of term are the courts unlikely to imply?
A
One that contradicts an express term
Q
51
What is required for the courts to imply a term through course of dealings between the parties?
A
The parties have contracted on the same terms on several occasions, enough to show a regular
and consistent course of dealings
Q
52
Whilst the courts will generally not get involved to make an incomplete or vague contract work,
what is required of a contract before they would get involved?
A
Sufficient certainty
53
Q
What is one instance where the courts will not get involved with a contract?
A
Where the court is unable to conclude that the parties intended to be bound
54
Q
What are four instances in which the courts will get involved in a contract which is uncertain?
A
1.Mechanism, e.g. a clause, between the parties to resolve uncertainties
2.Commercial cases in which the parties are familiar with the trade
3.Future performance over a period of time (parties can resolve uncertainty over
time), and
4.Where there has been partial performance, or one party has investedon the basis
of the agreement
55
Q
What is one term the statutes will help resolve if it is not dealt with in the contract?
A
If no price has been agreed and none can be determined from the dealings between the parties,
the buyer must pay a reasonable price
56
Q
In deciding to sever an uncertain term, what is the test the courts will use?
A
Whether the term can be severed without affecting the substance of the bargain between the
parties
57
Q
What is the effect of an uncertain term not being able to be severed?
A
The entire contract is void for uncertainty
Q
1
What is an exclusion clause?
A
A term of a contract that attempts to exclude/limit liability of one of the parties
Q
2
What three criteria must be satisfied for an exclusion clause to be valid?
A
The clause must:
1.Have been incorporated into the contract
2.Be properly drafted so it is construed as excluding the actual, exact liability (i.e. harm
suffered) effectively, and
3.Not be prohibited by statute
3
Q
At what time must an exclusion clause be incorporated into a contract?
A
At the time or before the contract is concluded
4
Q
What are the three ways an exclusion clause, and any clause for that matter, can be incorporated
into a contract?
A
1.By signature
2.By notice
3.Through custom or previous dealings
Q
5
Why does a signature incorporate a term?
A
Because a party who signs a contractual document is generally bound by its terms
6
Q
What are two situations in which the incorporation by signature rule will not apply?
A
1.Inducement by oral misrepresentation
2.Non est factum
Q
7
What is the inducement by oral misrepresentation exception to the incorporation by signature
rule?
A
Where a party is induced to enter into the contract by an oral misrepresentation, this will be
deemed to override the written contractual terms
Q
8
What is the non est factum exception to the incorporation by signature rule, and what is required
to avail of it?
A
The party is deemed to have no understanding of the document they have signed because of
a fundamental difference between what they signed and what they thought they were
signing
Q
9
What is required for incorporation by notice?
A
The party seeking to rely on incorporation by notice must have taken reasonable steps(based
on the nature of the clause) to bring it to the attention of the other party
10
Q
Does the innocent party being illiterate/unable to read the exclusion clause have any relevance to
its incorporation by notice?
A
No
Q
11
What is the contractual document requirement in relation to incorporation by notice?
A
The clause must have incorporated/referred to a document intended to have contractual
effect
12
Q
What is the timing requirement for the notice in the context of incorporation by notice?
A
At the time or before the contract was concluded
13
Q
What is required of the course of dealingsbetween the parties if an exclusion clause is to be
incorporated in this way?
A
It must be regular and consistent
14
Q
What is the effect of the contra proferentum rule?
A
Any ambiguity when interpreting an exclusion clause (or any clause) will be interpreted against
the party seeking to rely on it
15
Q
What is the scope of the Unfair Contract Terms Act 1977 when it comes to exclusion clauses?
A
Business to business contracts only
Q
16
Under UCTA, what is the fate of a clause which attempts to exclude liability for death or
personal injury caused by negligence (in tort or under contract)?
A
Automatically void
17
Q
Under UCTA, what is the fate of a clause which attempts to exclude liability for any other
losscaused by negligence (in tort or under contract)?
A
Void, unless reasonable
18
Q
Under UCTA, what implied condition under statute cannot be excluded?
A
Implied condition as to title
(Sale of Goods Act 1979 or Supply of Goods and Services Act 1982)
19
Q
Under UCTA, breach of obligations as to compliance with what three things cannot be
excluded, unless reasonable?
A
1.Description
2.Quality
3.Fitness for purpose
(SOGA 1979 or SGSA 1982)
20
Q
Under UCTA, if a party contracts on its standard terms and conditions, what are three terms
they cannot rely on, unless reasonable?
A
Terms which:
1.Exclude liability for breach of contract
2.Reserve the right to render contractual performance substantially different from what
was expected
3.Render no contractual performance at all
21
Q
How could the reasonableness requirementunder UCTA be described?
A
The term should be a fair and reasonable one to include having regard to
the circumstances which were or ought reasonably to have been known or in the
contemplation of the parties when the contract was made
22
Q
What are five factors among which the court will consider in determining whether the term
was fair and reasonable to include?
A
1.Bargaining positions of the parties
2.Whether the customer received any inducement to accept the term
3.Whether the customer knew/ought reasonably to have known about the existence and
extent of the term
4.Whether compliance with a condition was practicable (in situations where the term
excludes liability if a term is not complied with)
5.Whether the goods were made pursuant to a special order
23
Q
What is the difference between an exclusion clause and a limitation clause?
A
An exclusion clause seeks to exclude liability outright. A limitation clause seeks only to limit
liability.
24
Q
In addition to the factors which the court will consider in determining whether an exclusionclause
was reasonable, what two things will they also consider when determining the same for a
limitation clause?
A
1.The resources available to the party relying on the clause to meet the liability
2.Whether it was open to them to protect themselves using insurance
Q
25
What does the reasonableness test under UCTA concern specifically?
A
Whether it was reasonable to include the clause, not whether it was reasonable to rely on it
26
Q
Who has the burden of proving a clause was reasonable?
A
The party relying on the clause
27
Q
Under the Consumer Rights Act 2015, what is the definition of trader?
A
A person acting for purposes relating to that person’s trade, business, craft, or profession,
whether acting personally or through another person acting in the trader’s name or on the
trader’s behalf
28
Q
Under the CRA, what is the definition of consumer?
A
An individual acting for purposes that are wholly or mainly outside the individual’s trade,
business, craft, or profession
Q
29
Under the CRA, what statutory implied terms concerning goods and services cannot be
excluded or limited?
A
Goods:
1.Title
2.Compliance with description
3.Quality
4.Fitness for purpose
Services:
1.Provided with reasonable care and skill
2.Provided within a reasonable time where no time has been agreed
30
Q
Under the CRA, what is the fate of a clause which attempts to exclude liability for death or
personal injury caused by negligence?
A
Prohibited. Same as under UCTA for business to business contracts.
31
Q
How is an unfair term defined under the CRA?
A
1.Contrary to requirements of good faith
2.Causes significant imbalance in the parties’ rights/obligations to the detriment of
the consumer
32
Q
What are two characteristics the CRA requires of contract terms?
A
1.Transparent (drafted in plain, intelligible language)
2.Legible
33
Q
Under the CRA, in whose favour must ambiguities be resolved?
A
The consumer’s
34
Q
What the effect of a term deemed to be unfairunder the CRA?
A
Not binding, unless the consumers choose to rely on it
35
Q
What are six examples of potentially unfair terms?
A
1.Excluding/limiting liability in event of death/injury caused by act/omission other than
negligence
2.Requiring disproportionately high fees to terminate the contract
3.Enabling the trader to terminate the contract without reasonable notice (except where
there are serious grounds)
4.Enabling the trader to unilaterally alter the contract for reasons not expressly provided
in the contract
5.Giving the trader the discretion to decide price after the consumer has become bound
6.Excluding/limiting the consumer’s right to take legal action
36
Q
In what two circumstances will a term not be assessed for fairness under the CRA?
A
When the term:
1.Specifies the main subject matter of the contract
2.Is related to the price payable
37
Q
Even where it falls within one of the two categories, what is required of the term for it not to be
assessed for fairness under the CRA?
A
It must be:
1.Transparent (expressed in plain, intelligible language, and if written, legible)
2.Prominent (brought to the consumer’s attention, such that the average consumer
would be aware of it)
1
Q
What is a void contract?
A
A contract that is totally without any legal effect, which cannot be enforced by either party
2
Q
What is a voidable contract?
A
A contract which operates as valid until a party elects to rescind it, but can also
be affirmedwhich prevents rescission
3
Q
What is the difference between a void and voidable contract as they relate to title to goods which
are subject to these contracts?
A
Void: title does not pass under a void contract and can never be passed on
Voidable: title can passed on if a third party buys in good faith and for value
4
Q
What are the factors which can render a contract void?
A
1.Mistake
2.Illegal/contrary to public policy at formation
5
Q
What are the factors which can render a contract voidable?
A
1.Duress
2.Undue influence
3.Misrepresentation
6
Q
Who cannot enforce a legal contract which was performed illegally and who can?
A
Can enforce: Innocent party
Cannot enforce: The party who committed the illegal act
7
Q
What are the two criteria, either one of which is enough, under which a contract will be void for
mistake?
A
Mistake is so fundamental that it:
1.Prevents formation of a contract in the first place (parties not properly in
agreement), or
2.Makes what has been agreed between the parties fundamentally
different from what was intended
8
Q
What is common mistake and what aspect of the contract will it typically relate to?
A
Both parties have made the same mistake.
Typically concerns the existence rather than quality of the subject matter of the contract.
Q
9
What is mutual mistake?
A
Where the parties are both mistaken, but about different things
Q
10
What will the courts consider in evaluating a mutual mistake?
A
Whether a reasonable person would interpret the agreement to mean what each party did
Q
11
What is a unilateral mistake?
A
Where one party is mistaken as to the terms of the contract, and the other party is
aware or should be
12
Q
When does mistake as to identity occur?
A
When an innocent party thinks they are contracting with Party A, but it is actually Party B
pretending to be Party A
Q
13
Only when will mistake as to identity void a contract?
A
When Party A’s identity was fundamental to the innocent party’s decision to enter into the
contract
Q
14
In the context of mistake as to identity, where Party A’s identity was not fundamental to the
innocent party’s decision to enter into the contract, what avenue for remedy is available?
A
Remedy for misrepresentation
Q
15
What are the two requirements to void a contract for mistake under non est factum?
A
1.Fundamental and radical difference between what was signed and what the signatory
thought they were signing, and
2.The mistaken signatory must not have been careless
16
Q
When is rectification by the court available in the context of mistake?
A
When the parties agree on the terms but the terms are recorded incorrectly when the contract is
reduced to writing, such that the written document failed to express the common intention
of the parties
Q
17
When will rectification in the context of mistake not be available?
A
If it would be inequitable, e.g. if a third party has acquired rights under the contract as written
Q
18
What is required to succeed with an allegation of duress?
A
Illegitimate pressure which is a factor in the innocent party’s decision to enter into the contract
Q
19
What is duress of the person?
A
Physical duress
20
Q
Does physical duress have to be the only reason the contract was entered into?
A
No
21
Q
What is duress of goods?
A
One party unlawfully keeping goods belonging to another to exert some form of influence over
them to enter into a contract
Q
22
What is economic duress?
A
Where there is inequality of the bargaining positions of the parties, and the stronger party uses
this position in an illegitimate manner to force the other party to enter into the contract
23
Q
How much of a factor must economic duress have been in the decision to enter into the contract
for it to be available?
A
A significant factor
24
Q
Is mere commercial pressure enough to amount to economic duress?
A
No. There must be coercion of the will so as to vitiate consent.
25
Q
What factors will the court consider when dealing with economic duress?
A
1.Does the threat deprive innocent party of practical choice?
2.Is the threat unlawful (and made not in good faith)?
3.Did innocent party seek to rely on contract?
4.Did innocent party protest?
Q
26
What is the doctrine of undue influence?
A
An equitable doctrine to ensure that one person’s influence over another is not abused
27
Q
Is the pressure giving rise to undue influence more or less serious than duress?
A
Less
28
Q
What are the two ways in which undue influence can be proved?
A
1.Actual undue influence: overt acts
2.Presumed undue influence: based on relationship between the parties
Q
29
What is required to prove actual undue influence?
A
That the other party overtly influenced them to enter into a contract by improper pressure
Q
30
What are the two ways improper pressure can be applied in the context of actual undue
influence?
A
1.Directly, e.g. threats like blackmail
2.Indirectly, e.g. by misleading or tricking where a relationship of trust and confidence
exists
Q
31
What is a key difference regarding the conduct requirement for undue influence compared to
duress?
A
The conduct for undue influence does not need to be in bad faith or illegal
Q
32
Does actual undue influence have to be the only or principal factor in causing the innocent party
to enter into the contract?
A
No, it only needs to be a factor
33
Q
When there is actual undue influence, must the innocent party show that the transaction
was disadvantageous to them?
A
No. The innocent party is entitled to have the contract set aside as of right.
34
Q
What is the first requirement for presumed undue influence?
A
Relationship of trust and confidence, usually a fiduciary
35
Q
What are some other relationships where the trust and confidence element will be deemed to
exist for the purposes of presumed undue influence?
A
1.Parent/child
2.Medical advisor/patient
3.Guardian and ward
4.Solicitor/client
Q
36
For the purposes of presumed undue influence, is there a relationship of trust and confidence
between spouses?
A
Only if it is proved
Q
37
For the purposes of presumed undue influence, what one situation may also give rise to a
relationship of trust and confidence?
A
Where the innocent party trusted the other to make all the important decisions for them
38
Q
What is required for a presumption of undue influence to apply?
A
1.Relationship of trust and confidence
2.Transaction, viewed objectively, calls for an explanation
39
Q
When the presumption of undue influence arises, who has the burden to rebut?
A
The non-innocent party
40
Q
When trying to rebut the presumption of undue influence, what is the non-innocent party
essentially trying to show?
A
That the innocent party entered the contract of their own free will
41
Q
When trying to rebut the presumption of undue influence, what is one factor that will be strong
evidence that there was no undue influence, albeit not conclusive?
A
That the innocent party obtained independent advice before entering into the contract
42
Q
What is third party undue influence?
A
Where the undue influence does not come from a party to a contract, but a person connected to
one of those parties
43
Q
Where there has been third party undue influence, when may the transaction be set aside?
A
1.Non-innocent party is aware there may have been undue influence
2.They did not take reasonable steps to ensure the innocent party is entering the
contract of their own free will
Q
44
On the exam, when considering duress and undue influence, what is the order in which these
should be considered?
A
1.Check for duress
if the conduct falls short of duress:
2.
Check for actual undue influence
if there is insufficient evidence of actual undue influence:
3.
Check for presumed undue influence, including by third parties
45
Q
In what two ways can a contract be illegal?
A
1.Illegal as formed
2.Illegal as performed
Q
46
What is the status of a contract which is illegal as formed?
A
Void and unenforceable
Q
47
What is the status of a contract which is illegal as performed?
A
1.Rights withheld from the party who committed the illegal act
2.Remedies available to other party, as long as they were not aware and did not take
part
48
Q
In the context of a contract being illegal as performed, what is the impact of the other party not
knowing but subsequently finding out that performance was illegal?
A
No rights can accrue from that point onwards
Q
49
In the context of a contract being illegal as performed, what option does the court have to
preserve the elements of the contract which weren’t performed illegally?
A
They can sever those parts, so the remainder can be performed by both parties
Q
50
What is the effect of a contractual term which purports to restrain trade?
A
Void, unless the party seeking to rely on the restriction shows it is reasonably necessary for the
protection of legitimate interests
1
Q
What is a required for an actionable misrepresentation?
A
False statement of fact or law made by one party to another to induce them to enter into the
contract
2
Q
What is required of the statement for the purposes of misrepresentation?
A
Clear and unambiguous pre-contractual statement, made to the innocent party by the party to
the contract or a third party
Q
3
For the purposes of misrepresentation, what is the definition of false?
A
Not substantially correct
Q
4
For the purposes of misrepresentation, is a statement of fact limited to just present conditions?
A
No, it can also concern past conditions, but not future events
5
Q
For the purposes of misrepresentation, what is required for a statement of opinion to not be a
statement of fact?
A
The opinion must be honestly, genuinely and reasonable held
Q
6
When will a statement of intention be false?
A
When the person making the statement knew it was false when they made it
Q
7
Can silence amount to a misrepresentation?
A
Generally no
Q
8
What are two instances in which silence could be a misrepresentation?
A
1.Duty to act, e.g. fiduciary or where earlier representation turns out to be false
2.Uberrimae fidei contracts (of utmost good faith required full disclosure)
9
Q
Can a partial non-disclosure (half truth) amount to an actionable misrepresentation?
A
Yes
10
Q
Does the misrepresentation have to be the only reason the innocent party entered into the
contract?
A
No, but it needs to be a substantial reason
Q
11
In what three instances will there be no actionable misrepresentation?
A
1.Innocent party did not believe the statement
2.The statement was not actually communicated
3.Statement did not affect party’s decision to enter into contract
Q
12
What are the three categories of misrepresentation?
A
1.Fraudulent
2.Negligent
3.Innocent
13
Q
What are the three ways in which fraudulent misrepresentation can arise?
A
Statement must be made:
1.Knowingly
2.Recklessly (careless as to truth), or
3.Without belief in its truth
Q
14
What negligent misrepresentation is actionable under the Misrepresentations Act 1967?
A
Any misrepresentation is actionable unless the person making the statement can prove they
had reasonable grounds for believing and did believe, until the contract was entered into, that
the statement was true
Q
15
To clarify, who has the burden of disproving a claim of negligent misrepresentation?
A
The party who made the statement
16
Q
What are the two remedies available to the innocent party in the context of misrepresentation?
A
1.Rescission
2.Affirm, but claim damages
Q
17
What types of misrepresentation is rescission available for?
A
All three
Q
18
As a general aside, how is rescission different to termination?
A
Termination brings the contract to an end and only affects the parties’ future rights. Rescission
makes it as if the contract never existed at all, therefore prior rights cannot be enforced
Q
19
Is rescission always available?
A
No, it is an equitable remedy and is therefore at the discretion of the court, except
for fraudulent when it is always available
20
Q
What is required if a party wishes to rescind for misrepresentation?
A
They must notify the other party of their intention to rescind, or obtain a court order to that
effect
21
Q
If the innocent party rescinds the contract, what indemnity might the court seek from the party
who has made the representation, and what is it limited to?
A
An indemnity to assist in restoring the parties to the pre-contractual position, and is limited to
any expenses or obligations necessarily incurred as a result of entering into the contract
22
Q
What are four bars to rescission?
A
1.Affirmation
2.Lapse of time
3.Impossibility of restitution
4.Third party has rights under contract
23
Q
What is affirmation?
A
When, upon discovering the misrepresentation and having full knowledge of it, the innocent
party carries on with the contract
24
Q
How can a contract be affirmed?
A
1.Statement affirming it
2.Continued performance
Q
25
Why does a lapse of time bar rescission?
A
Because rescission is an equitable remedy and delay defeats equity
Q
26
With regard to lapse, when does the clock start running for fraudulent misrepresentation?
A
When the fraud is discovered
27
Q
With regard to lapse, when does the clock start running for negligent and innocent
misrepresentation?
A
When the innocent party discovers or should have discovered the misrepresentation
28
Q
What happens to the innocent party if it is impossible to return the parties to their precontractual position?
A
The innocent party will lose the option to ask the court to rescind, and will only be able to bring a
claim in damages
Q
29
When will third party rights bar rescission?
A
When a bona fide third party has acquired any rights under the contract
Q
30
If a bona fide purchaser acquires rights under a contract which was formed due to a
misrepresentation, will be they be required to return the goods?
A
Only if they are aware of the misrepresentation
31
Q
What are the damages for fraudulent misrepresentation based on?
A
The tort of deceit. Therefore, claims are made in tort.
32
Q
In a damages claim for fraudulent misrepresentation, does the innocent party have to show their
loss was reasonably foreseeable?
A
No
33
Q
What are the damages for negligent misrepresentation based on?
A
The same as fraudulent,. i.e. the tort of deceit, but also the tort of negligent misstatement.
Therefore, claims are made in tort.
Q
34
Are damages generally available for negligent misrepresentation?
A
No, except where court refuses rescission
Q
35
What is one instance in which damages could be awarded for negligent misrepresentation?
A
Where damages are awarded in lieu of rescission
Q
36
What types of misrepresentation do the courts have discretion to award damages for in lieu of
rescission?
A
Negligent and innocent only. Not fraudulent
Q
37
When will damages in lieu of rescission for negligent and innocent misrepresentation not be
available?
A
If the option to ask the court to rescind has been lost by one of the bars, e.g. affirmation, lapse,
etc.
38
Q
What is the most likely scenario in which damages in lieu of rescission would arise?
A
Where the misrepresentation is so minor that it would be inequitable to the person who made
the statement to deprive them of the full benefit of the contract
Q
39
What is the measure of damages for misrepresenation?
A
All losses incurred as a result of entering in the contract and also any incidental expenditure
Q
40
Can an innocent party recover damages even if the contract is rescinded?
A
Yes
Q
41
What is the obligation on the innocent party once the misrepresentation comes to light?
A
Take all reasonable steps to mitigate their loss
Q
42
To what extent will damages for misrepresentation be reduced?
A
To the extent of the value the innocent party may have already received
43
Q
What is the status of any clause which attempts to exclude liability or limit remedies available for
misrepresentation?
A
Void, unless reasonable
1
Q
What are the five ways in which a contract can be discharged?
A
1.Agreement
2.Variation
3.Performance
4.Breach
5.Frustration
Q
2
How is a contract discharged by agreement?
A
All parties essentially form a new agreement (which must be supported by consideration) to end
the old agreement
Q
3
How can obligations amount to consideration for the new contract to end the previous one by
agreement?
A
If both parties have unperformed obligations, each will be suffering a detriment, and the
acceptance by both of this detriment is valid consideration
4
Q
How is a contract discharged by variation?
A
All parties agree to vary the original agreement, and this must be supported by consideration
5
Q
How does the equitable doctrine of waiver apply in the context of variation?
A
If a party promises not to enforce another party’s obligations under a contract, the court may
conclude that the first party has waived its rights in respect of non-performance
6
Q
Where a party promises not to enforce another party’s obligations, how can the first party
reinstate the original terms?
A
By giving reasonable notice
Q
7
When will the implied variation or waiver arise?
A
When the parties have proceeded as if there is a varied agreement between them but nothing is
actually said
Q
8
Is consideration required for implied variation?
A
Yes
Q
9
Is consideration required for implied waiver?
A
No
Q
10
Why is consideration not required for implied waiver?
A
In the same way it is not required for waiver generally, the courts are applying an equitable
remedy to get around the legal requirement of consideration
Q
11
What is the entire obligations rule in the context of performance?
A
Generally, only full, exact, and precise performance will discharge a contract
Q
12
What is an exception to the general entire obligations rule?
A
Substantial but imprecise performance can be sufficient to discharge a contract, and any minor
breaches would be considered breaches of warranty only
Q
13
Does the substantial performance exception to the entire obligations rule apply to divisible
contracts?
A
No, each component is deemed its own contract
Q
14
Is partial performance generally sufficient to discharge a contract?
A
No
Q
15
What will the court conclude if partial performance is voluntarily agreed?
A
That the parties have agreed a new contract on revised terms, as long as there is consideration
Q
16
In the context of voluntary agreement of partial performance, what generally serves as the fresh
consideration?
A
Revision to the price to be paid
Q
17
If a revised price is not agreed, how is payment determined under a partially performed
contract?
A
On a quantum meruit (amount deserved) basis, i.e. pro rata to the work done
18
Q
What is the situation if the other party is given no choice but to accept partial performance?
A
This will not be enough to constitute agreement on the new terms
19
Q
What happens if one party prevents the other from performing their obligations under a
contract?
A
The first party’s conduct may amount to a breach of contract
Q
20
What is a breach of contract?
A
When one party does not fulfil its obligations under the contract, through either:
1.Non-performance or defective performance (actual breach), or
2.Indicating it will not perform in future (anticipatory breach)
Q
21
What are the different options available to the innocent party depending on whether a contract is
repudiated totally, a condition is breached, or a warranty is breached?
A
Repudiation/breach of condition:
May terminate the contract, and claim damages
Breach of warranty:
Damages only
Q
22
How does termination differ from rescission in the context of previously accrued rights and
obligations?
A
Termination:
Prior rights and obligations remain in place
Rescission:
Prior rights and obligations disappear
Q
23
What is the innocent buyer’s option if goods have been delivered under the contract but there
has been a breach because the goods do not conform to the contract?
A
The buyer is not obliged to pay, but must return the goods. The buyer may also claim damages.
24
Q
What happens to the right to terminate once a contract is affirmed?
A
It is lost
25
Q
What is an actual breach?
A
A breach taking place at the time of performance with no prior indication
26
Q
What is an anticipatory breach?
A
Before performance, one party indicates (expressly or impliedly) that they are not going to fulfil
their obligations under a contract
27
Q
What are the innocent party’s three options in the context of an anticipatory breach?
A
1.Accept the breach immediately
2.Terminate and claim damages immediately
3.Wait until contract due date
28
Q
What must be true of the anticipatory breach for the three options to be available to the innocent
party?
A
The breach must be of a condition or be otherwise fundamental to the contract
29
Q
What is required for a contract to be discharged by frustration?
A
Performance is now either impossible, or radically difference from what was envisaged under
the contract (even though technically still possible)
30
Q
What is an example of how a contract might be impossible to perform?
A
Subject matter no longer exists because it was destroyed or has become unavailable through no
fault of the parties
Q
31
How do the courts view illness in the context of frustration for inability to perform?
A
The longer-term the illness, the more likely the court is to conclude a contract has been
frustrated
32
Q
What is supervening illegality in the context of frustration of contract?
A
The conduct expected under a contract, whilst legal at formation, has now become illegal
33
Q
What are two requirements for frustration through radical difference?
A
1.Radical difference must be fundamental to the contract
2.Supervening event must not have been in the contemplation of the parties when the
contract was formed
Q
34
Is a contract frustrated just because it is more difficult to perform?
A
No
Q
35
Is a contract frustrated if it has been caused by one of the parties?
A
No. This is just a breach by the offending party.
Q
36
What is the effect of either or both of the parties foreseeing the frustrating event?
A
The contract is not frustrated
Q
37
What is the likely way in which frustration will be tested on the exam?
A
The classic Krell v. Henry case where someone has hired a venue for a specific purpose
known to the owner and a subsequent event occurs removing the reason for which the venue
was hired
Q
38
If frustration applies, at what point is the contract deemed discharged?
A
From the moment the event occurred
39
Q
If a contract is deemed frustrated, what two things does the Law Reform (Frustrated Contracts)
Act 1943 require?
A
1.All sums paid in respect of the contract before discharge will be recoverable, and all
sums payable before discharge cease to be payable, and
2.Any valuable, non-monetary benefit obtained before the discharge may have to be paid
for
40
Q
How can parties override these requirements of the Law Reform (Frustrated Contracts) Act 1943?
A
Express term in the contract, agreed by the parties
41
Q
In addition to expressly overriding the application of the Law Reform (Frustrated Contracts) Act
1943, to which three types of contracts will it not apply?
A
1.Charterparties (contract for hire of ship and delivery of cargo)
2.Contracts of insurance
3.Contracts for the sale of goods where the reason for the frustration is the
destruction/perishing of the goods
1
Q
What are the four types of damages?
A
1.Expectation damages
2.Reliance damages
3.Non-monetary losses
4.Nominal damages
2
Q
What is the intent behind the expectation measure of damages?
A
To put the party back in the position they would have been in had the contract been performed
3
Q
What is another term for expectation damages?
A
Loss of bargain damages
4
Q
In one of what two ways are expectation damages calculated?
A
1.The cost of curing the defects, or
2.Difference in value between what was actually provided and what should have been
provided under the contract
5
Q
When might reliance damages be used?
A
When expectation damages are too speculative
6
Q
What does reliance damages seek to compensate?
A
Expenses incurred in reliance on the contract up to the time of breach
7
Q
What are the three types of non-monetary losses for which damages can be awarded?
A
1.Physical injury from the breach of contract
2.Loss of amenity
3.Loss of reputation
Q
8
Are damages for injuries to feelings generally allowed?
A
No
Q
9
When does loss of amenity arise and to whom is it available only?
A
Where the purpose of the contract was enjoyment, e.g. a holiday, a consumer may be awarded
damages
Q
10
Are punitive damages generally awarded in contract cases?
A
No
Q
11
What are nominal damages?
A
A trivial sum, such as £1, in damages, in situations where there technically is a breach, but no
actual loss
Q
12
What is the general rule for when damages are assessed?
A
Damages are generally assessed at the date of breach
13
Q
What are some exceptions to the general rule that damages are assessed at breach?
A
1.Innocent party was not aware of the breach for a period of time
2.Difficulty in finding alternate performance
14
Q
However, when is remoteness considered?
A
When the contract was entered into
15
Q
In order to not be too remote, and therefore unrecoverable, damages should have one of what
two criteria?
A
Damages should:
1.Fairly and reasonably be considered to arise naturally from the breach, or
2.Have been in the contemplation of both parties as a probable result of breach
16
Q
On the exam, how might remoteness be tested?
A
Innocent party enters into a one off arrangement, not in their ordinary course of business
17
Q
What is the difference between the rules on remoteness in contract and tort?
A
Contract: Whether loss was a serious possibility or not unlikely + must flow naturally from
breach or be in the contemplation of the parties
Tort: Whether loss was reasonably foreseeable (a lower bar)
Q
18
What is the test for causation in contract?
A
Whether the breach was the effective cause of the loss
Q
19
Will a reasonably expected intervening event break the chain of causation in contract?
A
No
20
Q
Is the party in breach still liable if the breach is one of two effective causes of the loss?
A
Yes
21
Q
When is contributory negligence available in contract?
A
When the liability is the same both in contract and in tort, i.e. there would be a duty in tort even
if there was no contract
22
Q
Is contributory negligence contract a complete defence?
A
No, only partial
23
Q
What is the measure of damages when looking at expectation interest?
A
1.Diminution in value
2.Cost of remedying the defect
3.The value of loss of amenity
Q
24
What is the measure of damages if the buyer has a claim for non-delivery of goods or delivery of
non-conforming goods?
A
The estimated loss resulting directly and naturally from the seller’s breach
Q
25
If there is a market for the goods, what is the starting point for calculating damages?
A
Difference between the contract price and the market price of the goods when they ought to
have been delivered
Q
26
What rules apply when the seller attempts delivery but the buyer breaches by refusing to accept?
A
Similar rules to when they seller is in breach
Q
27
What is the innocent party’s duty to mitigate?
A
The innocent party must take reasonable steps to mitigate their loss and cannot recover
losses that are a direct consequence of a failure to mitigate
Q
28
What is required for a liquidated damages clause to be valid?
A
The damages must be based on a genuine pre-estimate of the innocent party’s loss
Q
29
As penalty clauses will be struck out, what will the innocent party’s recourse be?
A
The ordinary damages channels
Q
30
When will a damages clause be considered a penalty?
A
When the damages are out of proportion to the obligation breached
Q
31
How can an innocent party save a clause which looks like a penalty?
A
By demonstrating that the clause:
1.Protects a legitimate business interestand that the damages are proportionate to
that interest, and
2.Is not extravagant, exorbitant, or unconscionable
32
Q
What is a debt claim?
A
A claim for an amount due under a contract, rather than damages
33
Q
What are the two advantages of a debt claim over a damages claim?
A
1.No need to consider remoteness or causation
2.No duty to mitigate
Q
34
Are equitable remedies available as of right?
A
No, they are discretionary
35
Q
What is specific performance?
A
An order requiring the party in breach to carry out their obligations in full
36
Q
What statute gives specific performance a statutory basis?
A
Sale of Goods Act 1979
37
Q
In what five situations would specific performance not be granted?
A
1.Undue hardship on party in breach
2.Consideration is inadequate + another factor e.g. undue hardship or unfairness
3.No mutuality (innocent party still has unperformed obligations)
4.Contract for employment or personal services
5.Order would require court supervision
Q
38
In what circumstances can an injunction be used related to an employment contract?
A
To restrain a breach of a negative term, provided it does not compel performance
Q
39
What is rescission and what is the effect?
A
Cancellation of a voidable contract, as if the contract never existed
Q
40
When must the grounds for rescission occur?
A
At the time or before the contract is entered into
Q
41
In what instance would equitable remedies not be available?
A
If it would be unfair to the defendant
Q
42
What three defences to equitable remedies are available?
A
1.Unconscionable behaviour (unclean hands)
2.Waiver
3.Unreasonable delay (delay defeats equity)
43
Q
What is the primary aim of restitution?
A
To prevent unjust enrichment based on value acquired during a contract, after the contract has
been set aside
44
Q
What must the innocent party show to claim restitution?
A
A legitimate interest in preventing the party in breach from retaining the value
Q
45
What are the terms given to the proportionate payment or return of money in a services context
and a goods context, respectively?
A
Services: quantum meruit
Goods: quantum valebat
Q
46
What three remedies, in addition to those under the general law, are available to consumers
under the Consumer Rights Act 2015?
A
1.Right to reject defective goods within 30 days, for a full refund
2.Right to require to trader to repair/replace at the trader’s expense (if not rejected or if
30 days has passed)
3.Right to have price reduced or to reject (even after 30 days) if repair/replacement is
not successful, too expensive, or cannot be carried out in a reasonable time
1
Q
What are the five assessment criteria which appear in more than one skill?
A
 Legal content legally correct and comprehensive, and ethical/professional conduct
issues (6/7)
 Ensure advice is client-focused (4/7)
 Clear, precise, concise, and acceptable language (4/7)
 Include all relevant facts (3/7)
 Structure document appropriately and logically (2/7)
Q
2
What is the only skill in which legal content/professional conduct is not assessed, and why?
A
Interview, because this is assessed in the associated attendance note
3
Q
In which four skills are:
(1) ensure advice is client-focused and
(2) clear, precise, concise, and acceptable language assessed?
A
1.All of the written assessments, except drafting
2.All of the written assessments, except attendance note
4
Q
In which skills is include all relevant facts(expressly) assessed?
A
Advocacy, writing, and CMA
5
Q
Legal content
What is the three stage process to scoring on this assessment criteria?
A
1.Spot relevant issues
2.Correctly explain each issue
3.Apply correct law to relevant facts
6
Q
Legal content
What does comprehensive require?
A
It requires you to deal with all of the issues raised
7
Q
Legal content
How can you apply THINK CLIENT?
A
Show that you have not only found the relevant law, but you have thought about how it impacts
the client based on what you understand about their situation
8
Q
Professional conduct
What is one question you must always ask regarding the client?
A
Who is the client?
E.g. the company or its directors? The deceased or their executors?
Q
Professional conduct
9
What are three ways you should also act?
A
 With intregrity
 With independence
 In the best interests of the client
10
Q
Ensure advice is client-focused
What mantra should you always keep in mind?
A
THINK CLIENT
11
Q
Ensure advice is client-focused
What four aspects pertaining to your client should you keep in mind?
A
The client’s needs, objectives, and priorities, as well as the outcome(s) most important to
them
12
Q
Ensure advice is client-focused
What are the only things the client will care about?
A
1.Chances of success
2.If the course of action is possible
3.Risks, and how to protect against them
4.Time and costs
5.Alternate approaches
6.Steps to be taken by them, and steps to be taken by the solicitor
13
Q
Ensure advice is client-focused
Why is it important to consider who the client is and their level of sophistication?
A
It influences the complexity of your communication with them
14
Q
Ensure advice is client-focused
What aspects should you consider beyond legal?
A
The commercial, personal, social, relational or financial consequences of a particular approach
Q
Ensure advice is client-focused
15
What is an example of thinking beyond the legal aspects generally?
A
A client may have a slam dunk cause of action, but may not want to disrupt the relationship with
the other party, e.g. family, or a business partner, or a supplier from whom they get a good deal
Likewise, a client may have a poor case but is keen to take all legitimate steps to bring a claim,
even if it would be costly and ultimately unsuccessful
Always consider what the client wants, legally and otherwise
16
Q
Ensure advice is client-focused
What is an example of thinking beyond the legal aspects in a probate situation?
A
 Will a family member dispute the will?
 Is client unhappy with a provision in the will but not prepared to argue with family over
it
Q
17
Ensure advice is client-focused
What might a client’s objectives and priorities be influenced/determined by, and what is the best
way to get ahead of these?
A
Their particular constraints
Get the client to clearly specify their objectives at the outset so you can be aware of any
constraints (or extract these from the instructions)
18
Q
Ensure advice is client-focused
What is an example of a constraint a client might face?
A
A client with no source of funding other than paying privately by the hour may need to limit
actions to those with the least cost
19
Q
Ensure advice is client-focused
If relevant to the assessment, what should you clearly explain to the client?
A
How you will progress the matter
20
Q
Ensure advice is client-focused
What are three helpful phrases to apply the law to the client’s situation?
A
 This has the following consequences for you…
 Applying the law to your situation…
 I would advise you to take the following steps…
21
Q
Clear, precise, concise, and acceptable language
How does thinking about who the recipient is influence the work product?
A
You will tailor the tone and depth of legalese depending on who the recipient is
22
Q
Clear, precise, concise, and acceptable language
Even though you could get away with slightly more legalese to a sophisticated recipient, what
should you still do?
A
Avoid it unless absolutely necessary
Q
23
Clear, precise, concise, and acceptable language
When might a great degree of legalese and technicality be warranted?
A
If writing to a firm of solicitors to convince them of your client’s case for negotiation purposes
24
Q
Clear, precise, concise, and acceptable language
What approach should you adopt to terminology used in and throughout the work product?
A
Be consistent
25
Q
Clear, precise, concise, and acceptable language
Should you use the active or passive voice?
Clear
A
Active
E.g. Party A will maintain the premises in good repair instead of The premises shall be
maintained in good repair
Q
26
Clear, precise, concise, and acceptable language
How should sentences and paragraphs be kept?
Clear
A
Short
Q
27
Clear, precise, concise, and acceptable language
How should you ensure the recipient will interpret what you are saying?
Clear
A
In the way you intend them to interpret it
Avoid ambiguity
Q
28
Clear, precise, concise, and acceptable language
What sort of English should you use?
Precise
A
Plain English
Q
29
Clear, precise, concise, and acceptable language
How should expression be kept?
Precise
A
Simple
30
Q
Clear, precise, concise, and acceptable language
What two things should you not do in order to ensure you score on concise?
Concise
A
Do not:
1.Repeat yourself
2.Use padding or unnecessary words
31
Q
Clear, precise, concise, and acceptable language
How should you reference facts to score on acceptable language?
Acceptable
A
Correctly, and without embellishment or ignoring facts which don’t serve your client
Q
32
Clear, precise, concise, and acceptable language
What should you check for at the end to ensure you score highly on acceptable language?
Acceptable
A
Spelling and grammar
33
Q
Clear, precise, concise, and acceptable language
How should you sign off correspondence when referencing parties (1) by name and (2) by Sir or
Mr?
Acceptable
A
1.Yours sincerely
2.Yours faithfully
Q
34
Clear, precise, concise, and acceptable language
If including an address is relevant to the assessment and this has not been provided, how should
this be dealt with?
Acceptable
A
Include [address to be provided]
35
Q
Include all relevant facts
How should you ensure your legal advice is not taken out of context by the recipient?
A
Clarify the factual basis for the legal advice you are giving
36
Q
Include all relevant facts
How can you clarify the factual basis for the legal advice you are giving?
A
Explain how the facts are relevant to the advice you are giving
37
Q
Include all relevant facts
What makes a fact relevant?
A
If it influences your understanding of what the client’s issue is and what advice they might need
Q
38
Structure document appropriately and logically
To what standard should work be produced?
A
The appropriate professional standard
Q
39
Structure document appropriately and logically
Marks will only be lost for spelling and grammar errors which impact what?
A
The legal accuracy, clarity, or certainty of the writing
Q
40
Structure document appropriately and logically
What are some examples of spelling and grammar errors which would lose marks?
A
Errors in names, addresses, dates, and verb tense
41
Q
Structure document appropriately and logically
Under this assessment criteria, will marks be lost for poor formatting?
A
No
42
Q
Structure document appropriately and logically
Unless advised to the contrary, how should you sign off?
A
A solicitor, or An associate
Not your own name
Q
1
How long is the interview/attendance note assessment and how is the time split?
A
1 hour
* Interview: 10 minutes to prepare and 25 minutes to interview
* Attendance note: 25 minutes to prepare
Q
2
Interview
What is the most basic description of the task in the interview assessment?
A
Ask questions, elicit instructions from the client, and build trust and confidence
3
Q
Interview
What is the assessment objective for the interview assessment?
A
Demonstrate ability to conduct interview with client
4
Q
Interview
What are the assessment criteria for the interview assessment?
A
1.Listen to client, and use effective questioning to enable the client to tell you what is
important to them
2.Communicate and explain in a way that is suitable for the client to understand
3.Conduct yourself in a professional manner and treat the client with courtesy, respect,
and politeness
4.Demonstrate client focus
5.Establish and maintain an effective relationship with the client so as to build trust and
confidence
Q
5
Interview - Listen to client, and use effective questioning
How should you use your legal knowledge?
A
To identify particular areas for clarification
6
Q
Interview - Listen to client, and use effective questioning
How should you begin the interview?
A
Outline what you believe the issues to be, and check with the client that this is correct before
starting to question the client
7
Q
Interview - Listen to client, and use effective questioning
What is the primary aim of the inteview?
A
To enable the client to provide you with a full account of the matter, dispute, or transaction
You may need to ask them to expand on or clarify particular areas
8
Q
Interview - Listen to client, and use effective questioning
What are two examples of open phrases which you can use to elicit information from the client?
A
 Tell me about…
 Give an account of the events leading up to…
Q
9
Interview - Listen to client, and use effective questioning
What must the client feel they have had the opportunity to do?
A
Explain their issues
Q
10
Interview - Listen to client, and use effective questioning
How can you show the client you are actively listening?
A
Summarise what they have told you, e.g. The main matter you are keen to resolve is…
Q
11
Interview - Listen to client, and use effective questioning
What should you avoid doing and why?
A
Avoid making too many assumptions, as the client will know more about their situation than you
do
Q
12
Interview - Listen to client, and use effective questioning
If you are to assume something, how should this be approached?
A
By stating the assumption and asking the client to confirm if it is true, or simply turning the
assumption into a question
Q
13
Interview - Listen to client, and use effective questioning
Before concluding the information acquisition part, what should you ask the client?
A
If there is any other issue they wish to discuss, or anything further they would like to add
Q
14
Interview - Listen to client, and use effective questioning
What should you avoid doing before you have all the information you need?
A
Giving your advice
Q
15
Interview - Listen to client, and use effective questioning
What should you do before moving onto preliminary advice and next steps?
A
Summarise the facts and the client’s concerns
Q
16
Interview - Communicate/explain… suitable for client to understand
What type of language should you use?
A
Language suited to the particular client
A business client and a lay client will be comfortable with different language
17
Q
Interview - Communicate/explain… suitable for client to understand
How many questions should you ask at a time?
A
One
Q
18
Interview - Communicate/explain… suitable for client to understand
Although you are not required to give detailed legal advice in the interview, what should you do?
A
Explain enough of the key concepts to win the client’s trust
You do not want the client to leave the interview feeling they are no further on
Q
19
Interview - Communicate/explain… suitable for client to understand
How should you qualify the explanations you give the client in interview?
A
Tell the client that you would like to explain some key concepts, but you will be following up after
the interview with a detailed note of your legal advice
Q
20
Interview - Professional manner… courtesy, respect, politeness
You will be advised if the client is already in the interview room. If they are, what is true about
the interview?
A
It will begin as soon as you enter the room
21
Q
Interview - Professional manner… courtesy, respect, politeness
How do you demonstrate a professional manner at the outset?
A
Appropriately introduce yourself (as a solicitor or an associate unless told otherwise), and confirm
the client’s details as well as the matter on which they are seeking your advice
22
Q
Interview - Professional manner… courtesy, respect, politeness
What should you demonstrate to the client about your plan for the interview, and what is a
suggested paragraph to deal with this?
A
That you have a clear plan (based on your preparation)
First of all, I will ask you to explain what has happened. Then, I may ask you some further
questions to clarify things. That should enable me to explain any key concepts and follow up with
a detailed note of my legal advice
23
Q
Interview - Professional manner… courtesy, respect, politeness
How should you deal with eye contact and making notes?
A
Balance the need to write notes with maintaining eye contact so the client knows you are
listening to them
Q
24
Interview - Professional manner… courtesy, respect, politeness
At what intervals should you check with the client that they understand and if they have any
questions or have anything else to raise?
A
At the end of each stage of the interview, i.e.
1.Information acquisition
2.Explanation and preliminary advice
3.Next steps
25
Q
Interview - Professional manner… courtesy, respect, politeness
How should you conclude the interview?
A
Bring it to a conclusive close, confirming the outcome has been achieved
Thank you for your time today. I now have a clear idea of the facts and will follow up with a
detailed letter setting out my legal advice
26
Q
Interview - Demonstrate client focus
What is the best way to demonstrate client focus?
A
Ask the client questions and give them an opportunity to express their concerns, as well as
listening and responding to those concerns by explaining the issues in a way the client can
understand
27
Q
Interview - Demonstrate client focus
What are some phrases to demonstrate client focus?
A
 Looking at / focusing on your circumstances…
 On the basis of what you have told me…
28
Q
Interview - Demonstrate client focus
What should you do if the client’s obectives and priorities are unclear?
A
Find out what they are, including which are most important to the client
29
Q
Interview - Effective relationship to build trust and confidence
What are three ways to make a good first impression in interview?
A
 Garner their name and the purpose of their visit from the prep and lead with it
 Introduce yourself and indicate your status in the firm
 Set out your papers neatly
30
Q
Interview - Effective relationship to build trust and confidence
What three pieces of information will the invigilator tell you before you enter the room?
A
1.Whether the client is already in the room
2.Whether you can shake their hand (if silent, don’t)
3.Whether you can use your real name (if silent, don’t)
31
Q
Interview - Effective relationship to build trust and confidence
What are the five interlocking sections of a good interview?
A
1.Rapport building
2.Fact gathering
3.Fact consolidation
4.Provision of preliminary advice
5.Client questions and next steps
32
Q
Interview - Effective relationship to build trust and confidence
As note taking can interfere with rapport, but is necessary to be able to write up a good
attendance note, how should you approach this with the client?
A
Explain to the client that you will be making notes of the interview, and that this is in order to
record a thorough overview of the matter to be able to provide the best advice possible
33
Q
Interview - Effective relationship to build trust and confidence
How sufficient should your explanations be?
A
Sufficient enough to demonstrate that you understand and can deal with the matter, so the client
can decide on the course of action to be taken
34
Q
Interview - Effective relationship to build trust and confidence
How should you deal with an unrealistic deadline from a client?
A
Explain it is not likely to be possible and explain why
If the client suggests they have arranged things on the basis of the unrealistic deadline being
met, you must reiterate the above
35
Q
Interview - Preparation
Will you have to deal with client care, funding, or money laundering?
A
You will be told in the question if this is in or out of scope
36
Q
Interview - Preparation
After reading the instructions, what is the first thing you should do?
A
Format a list of questions or topics into sub-headings with space between them to fill out during
the interview
Leave more space than you think, in case other issues arise during interview
37
Q
Interview - Preparation
What is the end goal for this prep document which will be populated in the interview?
A
It will be attached to the attendance note as an appendix to avoid having to rewrite the interview
notes in the attendance note
38
Q
Interview - Preparation
What is the template for this interview notes prep document?
A
 Name and contact details (including phone, email and address)
 Key points and questions (leaving space to populate)
 Explanations provided orally to client
 Next steps
39
Q
Interview - Time management
How should the 25 minutes of the interview itself be split?
A
 15 minutes taking instructions
 10 minutes explaining concepts and next steps
40
Q
Interview - Dealing with the actor
Might the client adopt certain personas?
A
Yes, the client may be either reluctant to reveal information even when asked, or prone to
introducing irrelevant information
Q
41
Interview - Dealing with the actor
How should you approach the situation if the client is reluctant to share?
A
State that you understand it may be difficult for them to remember or talk about the events in
question, but that the answers are important in order to be able to advise them fully
Ask if they have any documents that might refresh their memory
Q
42
Interview - Dealing with the actor
How should you approach the situation if the client is adding in irrelevant information?
A
Ask them if they would not mind slowing down to allow you to focus fully on their instructions
and record the information, so you can advise them fully and lead to the best outcome
43
Q
Attendance note
Although technically separate assessments, why is it important to consider the interview and
attendance note part of the same assessment?
A
Because the more detailed your notes from the interview prep and the interview, the easier
writing up the attendance note will be
Q
44
Attendance note
What is the most basic description of the task in the attendance note assessment?
A
Provide legal advice on the issues that emerged in the interview, not just simply recording what
the client said
45
Q
Attendance note
What is the assessment objective for the attendance note assessment?
A
Demonstrate ability to produce an attendance note recording a client interview and initial legal
analysis
46
Q
Attendance note
What are the assessment criteria for the attendance note assessment?
A
1.Obtain all relevant information
2.Ensure advice is client-focused
3.Identify appropriate next steps
4.Legal content is correct and comprehensive, and professional conduct issues, if any,
identified
Q
47
Attendance note - Obtain all relevant information
What is the most efficient way to demonstate you have obtained all relevant information?
A
Incorporate the interview notes as an Appendix
Q
48
Attendance note - Obtain all relevant information
What should you do if you think of something you forgot to ask or advise on in interview?
A
Add it into the attendance note
On further reflection, the following is also relevant…
Q
49
Attendance note - Ensure advise is client-focused
Which grammatical person should the advice be drafted in?
A
Third person, e.g. “The client”
Advice still needs to be client-focused notwithstanding
Q
50
Attendance note - Ensure advise is client-focused
How should your advice be expressed?
A
In terms the client could understand if the note or sections of it were to be sent to the client
51
Q
Attendance note - Identify appropriate next steps
Do the next steps in the attendance note have to be the same next steps you mentioned to the
client at the end of the interview?
A
No
52
Q
Attendance note - Identify appropriate next steps
What five next steps will generally always be relevant?
A
 Confirm your advice in a follow up letter or email to client
 List specific documents for the client to provide
 Provide specific instructions as to what you require from the client
 List specific meetings for you to set up
 Schedule a further meeting with the client, if more information is required
Q
53
Attendance note - Identify appropriate next steps
What distinction is it helpful to clearly make about next steps?
A
Who will undertake the action, the solicitor or the client
Q
54
Attendance note - Legal content, professional conduct
Under the SRA principles to provide a proper standard of service and act in best interests of the
client, what should a solicitor do if a client is determined to pursue a claim as a matter of
principle?
A
Raise with the client whether the potential outcomes are likely to justify the expense or risk
involved, including the risk of having to pay the other side’s costs if they lose
Q
55
Attendance note - Legal content, professional conduct
Where this situation arises, what should you record in the attendance note?
A
That you have considered this, and have advised the client that to pursue the claim may not be
in their best interests for the reasons in the previous card
Q
Attendance note
56
What is the general template for an attendance note?
A
Client: [client name]
Matter: [description]
Date of interview: [date]
Client instructions provided an interview
* Please see interview notes attached at Appendix 1
* The key instructions provided by the client were: [max 5 bullets]
Legal advice
* Using sub-headings, set out legal advice for each client issue
Next steps
* Using bullets, detail the next steps you/your colleague/the client will take
Q
1
How long is the advocacy assessment and how is the time split?
A
1 hour
45 minute to prepare and 15 minutes to deliver the advocacy
Q
2
What is the most basic description of the task in the assessment?
A
Apply relevant law to key facts in the instructions, to persuade the judge that you have satisfied
the test for the court to make the order you are seeking
Q
3
Do you stand or sit when delivering the advocacy?
A
Sit for disputes and stand for criminal
Q
4
Who plays the judge?
A
The assessor plays the judge
Q
5
What is the assessment objective for the advocacy assessment?
A
Demonstrate you are able to conduct a piece of advoacy to a judge
Q
6
What are the assessment criteria for the advocacy assessment?
A
1.Appropriate language and behaviour
2.Clear and logical structure
3.Engages with the court appropriately
4.Argument is persuasive
5.Include all relevant facts
6.Legal content is correct and comprehensive, and professional conduct issues, if any,
identified
7
Q
Assessment Criteria - Appropriate language and behaviour
What two aspects make up appropriate language?
A
1.Addressing the judge correctly
2.Using language reflecting the fact you are in court, and not debating or at a political
meeting
Q
8
Assessment Criteria - Appropriate language and behaviour
How can you use intonation to be a good advocate?
A
By emphasing, with tone of voice, the parts of the submission which are important, such that
anyone, even if they knew nothing about what you are saying, would understand what is
important
Avoid monotone voice.
Q
9
Assessment Criteria - Appropriate language and behaviour
If you cannot remember how to address a judge in a particular court, how should you begin your
submission?
A
“May it please the court, I represent…”
Q
10
Assessment Criteria - Appropriate language and behaviour
What type of phrasing should be avoided in submissions?
A
Avoid phrasing offering your personal view, e.g. “I think” or “in my opinion”
Q
11
Assessment Criteria - Appropriate language and behaviour
Who should you never interrupt?
A
The judge
12
Q
Assessment Criteria - Appropriate language and behaviour
If the judge asks a question and you plan to deal with this matter later in your submissions, what
is the appropriate way to deal with this?
A
Thank the judge for the question, and say “if it pleases the court, I intend to address this further
in my submission”
Q
13
Assessment Criteria - Appropriate language and behaviour
If the judge asks a question and you have already dealt with this, what is the appropriate way to
deal with this?
A
Thank the judge for the question, and make the same point again
Q
14
Assessment Criteria - Appropriate language and behaviour
What is the only situation in which it is appropriate to ask a question of the judge in the
assessment?
A
If they ask a question and you require clarification
15
Q
Assessment Criteria - Appropriate language and behaviour
What is meant by avoiding prefacing your submissions?
A
There is no need for any lead in. Simply make your point, or if you do preface, use “It is
submitted”…
16
Q
Assessment Criteria - Appropriate language and behaviour
How should you refer to the client?
A
By their full name, e.g. “Mr John Smith” and thereafter “Mr Smith”, or their role in proceedings,
e.g. the defendant
Do not refer to them as “my client”
Q
17
Assessment Criteria - Appropriate language and behaviour
Should you greet the judge at the beginning of the assessment?
A
Only if they greet you
18
Q
Assessment Criteria - Clear and logical structure
What are some rules for ensuring a clear and logical structure?
A
 Explain a general rule before talking about exceptions
 Distinguish clearly between facts and law
 Present analysis before conclusion so it is clear the conclusion flows from the analysis
19
Q
Assessment Criteria - Clear and logical structure
What is the general order the submission should follow?
A
1.State the party you are acting for and the nature of the application,
expressly stating what you want (If it pleases the court, I act on behalf of [x] in
this application for [y])
2.Check the judge has all relevant paperwork (The court should have the following
documents: [x], [y], and [z])
3.Provide a brief summary of the background facts (If it pleases the court, I will
give a brief outline of how the matter comes to be before you)
4.State what power the court has to deal with the application (As you will be
aware, the court’s power to grant this application is governed by [x])
5.Set out the legal test step by stepdirecting the judge to what the evidence is
that meets the test and exactly where they can find it
6.Summarise key arguments and remind the judge of: what the application is
for, the court’s powers to deal with this application, whether it is
discretionary or mandatory
Q
20
Assessment Criteria - Clear and logical structure
What is meant by setting out the legal test step by step?
A
State the test in full and then set out each part of the test/rule step by step, but between
steps, apply each to the facts and relevant evidence
Q
21
Assessment Criteria - Clear and logical structure
What additional step might be required at the end of a submission in disputes?
A
You may have to deal with costs. If so, you should be provided with a schedule of costs.
Q
22
Assessment Criteria - Engage with court appropriately
How should you approach eye contact?
A
Make enough eye contact to keep you from reading constantly from your notes, but do not stare
23
Q
Assessment Criteria - Engage with court appropriately
What is the best way to structure sentences?
A
Keep them short, to make the complex seem simple
24
Q
Assessment Criteria - Persuasive argument
How should you pace your advocacy?
A
Speak at a pace which enables the judge to note down key points
25
Q
Assessment Criteria - Persuasive argument
How should you signpost your presentation?
A
Explain at the outset that you have [x] submissions to make, summarise each in one sentence,
and then address each one in more detail
Q
26
Assessment Criteria - Persuasive argument
How can you avoid the judge misinterpreting what you are seeking?
A
By expressly stating at the outset what you want, e.g. “I request that you order [summary
judgment] in favour of the claimant for the following reasons…”
27
Q
Assessment Criteria - Persuasive argument
How should you conclude to make your argument persuasive?
A
Making it clear once again what power the judge has to grant the application and then asking
them to make the order
28
Q
Assessment Criteria - Include all relevant facts
How might you mislead the court with regard to facts?
A
By misrepresenting facts or omitting facts which are not favourable to your client
Q
Assessment Criteria - Include all relevant facts
29
What is the four step process to ensure you do not misrepresent or omit facts?
A
1.In prep, write down the decision you want the judge to make and the reason why it is
correct
2.Record all facts which support this, and note down references in the documentation
3.Record all facts which support the inverse of your case, and note your rebuttal to
these facts
4.In submissions, deal with evidence supporting your case and also explain the
inapplicability of facts which don’t support your case
30
Q
Assessment Criteria - Correct legal content, and professional conduct
What are the three steps to score on this assessment criteria?
A
1.Spot relevant legal issues
2.Provide a correct explanation of the legal issues
3.Apply relevant law to the relevant facts
31
Q
Assessment Criteria - Correct legal content, and professional conduct
What two types of law make up relevant law?
A
 Substantive law
 Procedural law
32
Q
Assessment Criteria - Correct legal content, and professional conduct
When conducting advocacy, how should you submit the relevant law to the court?
A
Simply state it to the judge: “The relevant law is…”
33
Q
Assessment Criteria - Correct legal content, and professional conduct
Regarding professional conduct, what four things should you obviously not do?
A
 Embellish or invent facts
 Use offensive language
 Make unwarranted allegations about opponent
 Make allegations of fraud without sufficient evidence
34
Q
Preparation
Where is the 45 minute preparation carried out?
A
In an invigilated room with other candidates present
35
Q
Preparation
What is the first thing you should do?
A
Read the instructions
36
Q
Preparation
After reading the instructions, what should you do, and how should this be carried out?
A
Begin outlining a structure on paper (notes) by splitting the legal issues into sub-headings and
outlining the relevant legal principles or tests.
Then, leaving space underneath these sub-headings to make detailed references to the evidence
you will find in the documentation.
Q
37
Preparation
In disputes, how should the relevant law be submitted?
A
Identify the power the court has under the Civil Procedure Rules to grant the applicatiton, and
the test it will apply when deciding whether to exercise the power
38
Q
Preparation
In criminal, how should the relevant law be submitted?
A
Identify the power/obligation the court has to grant the application, and the legal basis for this,
e.g. Police and Criminal Evidence Act 1984 (PACE) or the Bail Act 1976
39
Q
Preparation
How detailed should the notes be?
A
Detailed enough to deliver the submissions without undue hesitation and shuffling through the
documentation
40
Q
Addressing the court - civil
How is a High Court Judge addressed in writing and orally?
A
Written: Smith J
Oral: My Lord/Lady
41
Q
Addressing the court - civil
How is a High Court Master addressed in writing and orally?
A
Written: Master Smith
Oral: Judge
42
Q
Addressing the court - civil
How is a Circuit Judge in the High Court or County Court addressed in writing and orally?
A
Written: HHJ Smith
Oral: Your Honour
HH (his/her honour) is a tip off to having to call them Your Honour
Q
43
Addressing the court - civil
How is a District Judge in the County Court addressed in writing and orally?
A
Written: DJ Smith
Oral: Judge
Q
44
Addressing the court - criminal
How is a Circuit Judge in the Crown Court addressed in writing and orally?
A
Written: HHJ Smith
Oral: Your Honour
HH (his/her honour) is a tip off to having to call them Your Honour
Q
45
Addressing the court - criminal
How is a Circuit Judge in the Magistrates’ Court addressed in writing and orally?
A
Written: CJ Smith
Oral: Your Honour
46
Q
Addressing the court - criminal
How is a District Judge in the Magistrates’ Court addressed in writing and orally?
A
Written: DJ Smith
Oral: Judge
47
Q
Addressing the court - criminal
How is a Lay Magistrate in the Magistrates’ Court addressed in writing and orally?
A
Written: Mr Smith
Oral: Your Worship
Q
1
How long is the legal drafting assessment?
A
45 minutes
Q
2
What is the most basic description of the task in the legal drafting assessment?
A
Draft or amend a document so that it is legally effective
Q
3
What is the assessment objective for the legal drafting assessment?
A
Demonstrate you are able to draft a legal document or parts of a legal document for a client
4
Q
What are the assessment criteria for the legal drafting assessment?
A
1.Clear, precise, concise, and acceptable language
2.Structure document appropriately and logically
3.Ensure content is legally correct and comprehensive, and identify ethical/professional
conduct issues
5
Q
Clear, precise, concise, and acceptable language - clear
Who are the three classes of party you could be drafting for?
A
 Client
 Other parties to the document
 Judge
Q
6
Clear, precise, concise, and acceptable language - clear
If the party you are drafting for is the client, what three things should you ensure?
A
They can:
* Understand the document
* Be satisfied it accords with their instructions
* Refer to it if needed
7
Q
Clear, precise, concise, and acceptable language - clear
If the party you are drafting for is another party to the document, what situation is of particular
importance?
A
If the document is intended to regulate the relationship between your commercial client
and consumers, language that would otherwise be suitable for commercial parties will need to
be adjusted so that it is suitable for consumers
Q
8
Clear, precise, concise, and acceptable language - precise
How should you use defined terms?
A
If you describe something which is referred to more than once, define it and use the defined
term consistently
Q
9
Clear, precise, concise, and acceptable language - acceptable
How should you use terms like must, shall, will, may, or can?
Which is best to convey an obligation?
A
 Must and shall convey obligations, with must being preferable
 Will, may, and can convey intention, permission, and possibility respectively
Use must to convey obligations
10
Q
Structure document appropriately and logically
Of the 45 minutes, how long should you leave at the end to check work?
A
5 minutes
11
Q
Structure document appropriately and logically
How should complex clauses, if they are to be redrafted, be dealt with?
How should an exception in the clause be referenced?
A
The clause should be split up and tabulated
Exception should have its own numbered sub-clause (e.g. clause 3.3) and it should lead the main
part of the clause (e.g. Clause 3.1: Subject to clause 3.3…)
12
Q
Legal content
Why will you need to apply knowledge of substantive and procedural law?
A
To determine what the document needs to say in order to be legally effective
13
Q
Legal content
For example, if drafting a defence in a tort claim in a Disputes assessment, what will knowledge
of the substantive and procedural law help with?
A
 Substantive will help setting out the nature of the defence, e.g. that no duty existed, or
that client did not fall below the expected standard of care
 Procedural will help to understand the steps to take, e.g. responding to each allegation
with whether it is admitted, not admitted, or denied, and if denied, what the client’s
alternative argument is
14
Q
Professional conduct
What should you do if you are using a precedent and you find that it is one-sided in favour of the
other side?
A
Amend it to suit the client’s best interests
Q
15
Professional conduct
What is the balance you must strike in negotiation, so as to not injure your client’s best interests?
A
You must not advance a position so unfavourable to the other side that they simply walk away,
as this would not be in your client’s best interests
Q
16
Professional conduct
Why must you not assert something you know to be untrue in a statement of fact, even if the
client instructs you to?
A
Because your duty to not mislead the court overrides the duty owed to the client
Q
17
Precedent
When using a precedent, what is the most important thing to bear in mind?
A
In its original form, it may not have been drafted for your client, and may require amendment to
be in the client’s best interests
Amendments could be basic amendments, or deletions/insertions of entire clauses
Q
18
Precedent
Even if using a precedent, what is the first thing you should do when beginning to draft, and
why?
A
Make a list of matters to be dealt with, so you can easily spot how the precedent should be
amended
Q
19
Precedent
When you make amendments to a precedent, what should you ensure you do regarding a sense
check?
A
Check for consequential changes of your amendments, e.g. clause/sub-clause numbers, crossreferences, definitions
Q
1
How long is the legal research assessment?
A
60 minutes
2
Q
What is the most basic description of the task in the legal research assessment?
A
Sent a task by partner, and must research provided sources, and produce a report explaining the
advice the partner should give
3
Q
What is the assessment objective for the legal research assessment?
A
Demonstrate ability to conduct legal research from a variety of resources and produce a written
report
4
Q
What are the assessment criteria for the legal research assessment?
A
 Advice is client-focused
 Identify and use relevant sources of information
 Clear, precise, concise, and acceptable language
 Legal content is correct, and professional conduct issues identified
Q
5
What are the two sections of the written report?
A
 Part 1: Advice to the client
 Part 2: Legal reasoning of the advice, including sources/authorities
6
Q
Assessment criteria: client-focused
How should part 1 be written?
A
In a way the client will understand, without unnecessary technical detail
7
Q
Assessment criteria: client-focused
Although you should be provided with enough information/source material to provide definitve
advice, if further factual investigation is required, what should you do?
A
State it in the report
Q
8
Assessment criteria: relevant sources of information
What do you record in part 2?
A
The primary sources and authorities you rely on in formulating the advice given in part 1, e.g.
statutes, statutory instruments, reported cases
Note that whilst secondary sources can be useful to answer the question in part 1, only primary
sourcesunderlying the position should be cited in part 2
Q
9
Assessment criteria: relevant sources of information
How should you cite a source in part 1 and part 2?
A
 Brief reference to the source is enough in part 1, e.g. Sale of Goods Act
 Part 2 requires a full reference, e.g. s.14(1) of the Sale of Goods Act 1979, and if a
case, the full citation, e.g. Smith v Manchester City Council [1974] 17 KIR 1
Q
10
Assessment criteria: relevant sources of information
How much detail of a statute or case should you provide in part 2?
A
Enough detail so the partner can be satisfied that you have applied the sources correctly
E.g. if a statute: definitions, relevant provisions, and any exclusions/defences
Q
11
Assessment criteria: clear, precise, concise, acceptable language
What type of English should the advice in part 1 be drafted in and for what purpose?
A
Plain English, so that it could be copied and included in a letter to the client without much
amendment
12
Q
Assessment criteria: legally correct/comprehensive
What does legally correct mean?
A
You need to apply your knowledge of substantive law to determine the relevant area of law
applicable to the issue
13
Q
Assessment criteria: legally correct/comprehensive
What does legally comprehensive mean?
A
You need to deal with all the issues raised by the instructions
Q
14
Assessment criteria: professional conduct
What should you do if you realise your client has come under an obligation to disclose documents
which are unfavourable to their case?
A
Advise them of their obligations
15
Q
Assessment criteria: professional conduct
From the perspective of acting in the best interests of the client, how comprehensive should the
research be?
A
You must cover sources which support your client’s case, as well as those which are unfavourable
Advice should be objective, covering any weaknesses in your client’s case. Not making a client
aware that a claim/defence is unlikely to succeed is not acting in their best interests.
16
Q
Approach
What is the best way to approach?
A
 Read the facts to ensure you do not miss any issues
 Use knowledge of the law to determine the legal topic
 Once topic is identified, skim the sources to see which are relevant
Q
17
Approach
What should you do once you have identified enough material in the sources to answer each
issue?
A
Paste it into the report on an issue-by-issue basis rather than wait until you have completed all
the research before drafting
18
Q
Approach
How should part 1 and part 2 be made up?
A
 Part 1: Simple answer to the questions that could be sent to the client, without detailed
referencing to sources
 Part 2: Detailed cross-referencing to, and reproduction of, the relevant parts of relevant
primary research so the partner can check the adequacy of your research
19
Q
Tips
When you copy from the sources into part 2, what two things should you ensure?
A
 Only copy what is relevant
 Conform the font and formatting
Q
20
Tips
Where a piece of legislation appears relevant, what should you check?
A
That it is still in force
21
Q
Tips
What part of a case should you read first to check if it may be relevant?
A
The head note
22
Q
Tips
What is the suggested approach from a timing perspective?
A
 5 minutes to read question and set out sub-questions
 15 minutes to read through the sources
 30 minutes to paste relevant authorities into part 2 and write the advice in part 1
 10 minutes to check and edit
Q
23
Template
What is the header used for part 1?
A
Advice to the client
24
Q
Template
How do you set out the advice in part 1?
A
A series of short paragraphs with a clear and succinct answer to the client’s question, summed
up with a clear conclusion
Only if necessary should you make brief reference to sources
Q
25
Template
What is the header used for part 2?
A
Legal reasoning
26
Q
Template
How do you set out the sources and authorities in part 2?
A
Verbatim
Q
27
Template
Do you need to actually set out the legal reasoning in part 2?
A
No, as it is implied that the sources in part 2 support the legal reasoning and conclusion in part 1
However, briefly set out how each source relates to the issue in part 1
Q
28
Template
If you use sub-headings to break up the issues in part 1, what should you do?
A
Use the same sub-headings in part 2
Q
1
How long is the legal writing assessment?
A
30 minutes
Q
2
What is the most basic description of the task in the legal writing assessment?
A
Write a letter/email to a client or other third party setting out legal advice
3
Q
What is the assessment objective for the legal writing assessment?
A
Demonstrate ability to produce a letter or an email as the solicitor acting in a matter
4
Q
What are the assessment criteria for the legal writing assessment?
A
1.Clear, precise, concise, and acceptable language #
2.Include relevant facts #
3.Advice is client/recipient-focused #
4.Logical structure
5.Legal content legally correct and comprehensive, and ethical/professional conduct
issues #
Q
5
Advice is client/recipient-focused
If not obvious from the facts, what five things will the recipient need to understand?
A
1.What has triggered the need for advice
2.What must be done
3.Pros and cons of different options
4.Any action required of the client
5.If recipient is the other side, the client’s instructions and anything to be conveyed, e.g.
counteroffer
6
Q
Logical structure
What is the typical structure of work product in the legal writing assessment?
A
 Letter/email heading (name, address, etc.)
 Heading
 Greeting
 Introductory paragraph
 Brief section summarising facts
 Legal section, with headers if multiple issues
 Conclusions and next steps
 Closing sentence and sign off
Q
7
Time management
What should you do as soon as you read the question?
A
Copy the relevant facts and issues into an already topped and tailed template
As well as saving time, this will allow you to systematically deal with facts and issues in logical
order, and mark off when you have covered something
Q
8
Time management
Of the 30 minutes, how much time should you leave at the end to check sense, spelling, and
grammar?
A
3 minutes
Q
1
How long is the case and matter analysis assessment?
A
60 minutes
Q
2
What is the most basic description of the task in the case and matter analysis assessment?
A
Review case study with documents, and produce a written report to a partner setting out legal
analysis of the case and providing client-focused advice
3
Q
What is the assessment objective for the case and matter analysis assessment?
A
Demonstrate ability to produce a written report to a partner giving legal analysis of the case and
client-focused advice
4
Q
What are the assessment criteria for the case and matter analysis assessment?
A
 Identify relevant facts
 Provide client-focused advice
 Clear, precise, concise, and acceptable language
 Legal content correct and professional conduct identified
5
Q
Assessment criteria: identify relevant facts
As you likely won’t have time to list relevant facts at the start of the report, how should you
demonstrate you have identified them?
A
Tie them in when explaining the position
6
Q
Assessment criteria: client-focused advice
What is a good way to keep advice client-focused?
A
Tell the client everything they want/need to know, not everything you know
7
Q
Assessment criteria: client-focused advice
What are some questions to consider when providing client-focused advice?
A
 Who is my client?
 What background info is relevant to the advice I will provide?
 What are the client’s objectives?
 What are their concerns?
 What options are available?
 Can client impose their wishes on others?
 If not, what can client offer in return for others agreeing to their wishes?
Q
8
Assessment criteria: clear, precise, concise, and acceptable
Even though the report is prepared for a partner, what should you ensure and why?
A
Ensure you write in a way the lay client can understand, as the partner may wish to cut and
paste parts to the client
Do not do this at the expense of relevant detail and law
9
Q
Assessment criteria: legally correct/professional conduct
When negotiating, or offering advice for negotiation, why should you not make an offer which is
unattractive to the other side?
A
Because the other side simply walking away, or worse, being offended/insulted, is not in your
client’s best interests
10
Q
Assessment criteria: legally correct/professional conduct
What other things should you consider when negotiating, or offering advice for negotiation?
A
 Alternatives to settling and how attractive they are to client
 That parties may wish to work together in future
 Sticking points of both your client and the other side (and let the range of options be
bounded by this)
Q
11
Tips
How should you refer to legal content to signpost that you are dealing with it to the examiner?
A
Using a phrase which includes law or legal
Examples:
* The legal basis of the claim is negligence on the basis the defendant’s advice was below the
standard of what could be expected from a reasonably competent accountant
* The CPR contain the relevant procedural law governing disclosure and inspection of
documents…
12
Q
Tips
How should you phrase the advice if writing to (1) a supervisor and (2) the client?
A
1.I would advise the client to…
2.I would advise you to…
13
Q
Approach
When you read the instructions and identify the issues (including what is out of scope), what
should you do?
A
Note down the issues as headers before even reading the remainder of the report
Include professional conduct and negotiation as headers, to be deleted at the end if nothing
comes up for them
Q
14
Approach
Before reading the case papers, what should you do?
A
Note down some key points of law relevant to the issues you have identified
Q
15
Approach
When you read through the case papers, what should you do?
A
Note the sections you will copy into your advice later
Q
16
Approach
Based on this template, how should you complete the answer?
A
Flesh out, refine, and add in the relevant law and relevant extracts from the case papers
Apply the law to the facts, and reach a clear and specific conclusion on each issue
Q
17
Approach
How should you wrap up the report?
A
With a set of clear outcomes for the client and the firm
Include what the the next steps are for the client, and how can the firm assist