Mixed Deck — All CILEX L6 Topics Flashcards

What is the threshold for charging a suspect under the Code for Crown Prosecutors?

Answer: The Full Code Test: there is sufficient evidence to provide a realistic prospect of conviction and prosecution is in the public interest

The Full Code Test in the Code for Crown Prosecutors requires: (1) evidential stage — there is sufficient evidence to provide a realistic prospect of conviction (an objective test — would a properly directed jury be more likely than not to convict?), and (2) public interest stage — prosecution is in the public interest.

What is 'knowing receipt' following Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001]?

Answer: Liability in knowing receipt requires that the recipient's state of knowledge make it unconscionable for them to retain the benefit of the receipt

In BCCI v Akindele [2001] Ch 437, the Court of Appeal held that the single touchstone for knowing receipt is whether the defendant's state of knowledge was such as to make it unconscionable for them to retain the benefit of the property.

What is the role of the Parliamentary Ombudsman (Parliamentary and Health Service Ombudsman)?

Answer: To investigate complaints of maladministration causing injustice by government departments and bodies, referred through MPs

The Parliamentary and Health Service Ombudsman investigates complaints about maladministration (including delay, incompetence, and misleading information) causing injustice in government departments and NHS bodies. Complaints must be referred through an MP (the MP filter), and the PHSO's findings are not legally binding but are generally followed.

What is 'gain-based' damages in contract law and when might they be awarded?

Answer: Damages measured by the defendant's gain rather than the claimant's loss, available in exceptional cases involving cynical breach where compensatory damages would be inadequate (Attorney General v Blake [2001])

In AG v Blake [2001] AC 268, the House of Lords held that in exceptional cases (here, breach of a contract with the Crown by a spy), an account of profits may be ordered in contract. The remedy is discretionary and available only where compensatory damages would be inadequate.

What is the doctrine of adverse possession under the Land Registration Act 2002 and how does it differ from the pre-2002 regime?

Answer: Under the LRA 2002, a squatter may apply for registration after 10 years of adverse possession; the registered proprietor is then notified and has 65 business days to object, and if they do, the application fails unless the squatter can rely on one of three limited exceptions in Schedule 6 paragraph 5

The LRA 2002 (Schedule 6) fundamentally reformed adverse possession for registered land. After 10 years of adverse possession, the squatter may apply for registration. The proprietor is notified and can object. If they object, the application fails unless the squatter satisfies one of three conditions in para 5 (estoppel, some other right to the land, or reasonable mistake as to boundaries). If the proprietor fails to evict within 2 years of a failed application, the squatter can reapply successfully.

What is 'constructive dismissal' under the Employment Rights Act 1996?

Answer: Where an employer's repudiatory breach of the employment contract entitles the employee to resign and treat themselves as dismissed

Constructive dismissal under s.95(1)(c) ERA 1996 arises where the employee terminates the contract (with or without notice) because of the employer's conduct. The employer's conduct must be a repudiatory breach (going to the root of the contract or showing an intention to be no longer bound by it), and the employee must not have affirmed it.

What is the 'rule of law' and what does it require?

Answer: No one is above the law; all public acts must have legal authority; law must be clear, accessible, and stable; and the courts must be independent (Dicey, and the Constitutional Reform Act 2005)

Dicey's rule of law encompasses: (1) no punishment without breach of law, (2) equality before the law, and (3) rights derived from ordinary law. Modern formulations (Bingham) add: law must be clear and accessible, government must exercise power in good faith, and courts must be independent.

What are the fiduciary duties owed by a trustee that prohibit them from making an unauthorised profit from the trust?

Answer: The self-dealing rule and the fair-dealing rule

The self-dealing rule (a trustee must not purchase trust property) and the fair-dealing rule (a trustee purchasing a beneficiary's interest must show the transaction was fair) are the core no-profit/no-conflict rules. These derive from the strict fiduciary principles in Keech v Sandford and Bray v Ford, preventing trustees from placing themselves in positions where duty and interest conflict.

What is the 'public benefit' requirement for charitable purposes under the Charities Act 2011?

Answer: Every charitable purpose must benefit the public or a sufficient section of it, and the benefits must not be outweighed by detriments — the Charity Commission has issued guidance

Under s.4 Charities Act 2011, the public benefit requirement applies to all charitable purposes — the presumption of public benefit was abolished. The Charity Commission issues public benefit guidance. For certain charities (e.g., fee-paying schools), the benefit must extend sufficiently beyond fee-paying members.

What is the Achilles rule from Bain v Fothergill [1874] and has it been abolished?

Answer: It limited a buyer's damages for a seller's failure to show good title to land to expenses only (not loss of bargain); abolished by s.3 Law of Property (Miscellaneous Provisions) Act 1989

The rule in Bain v Fothergill limited damages for failure to make good title to land to recovery of expenses, not loss of bargain. It was abolished by s.3 Law of Property (Miscellaneous Provisions) Act 1989 — since then, ordinary principles of damages apply.

Under the Limitation Act 1980, what is the limitation period for a claim in negligence where the damage is latent and not discoverable at the time it occurred?

Answer: Under s.14A, the claimant has either six years from the date of accrual or three years from the date of knowledge of the material facts, whichever expires later, subject to a longstop of fifteen years from the negligent act under s.14B

The Latent Damage Act 1986 inserted ss.14A and 14B into the Limitation Act 1980. Section 14A provides an alternative period of three years from the claimant's date of knowledge where the basic six-year period has expired. The date of knowledge is when the claimant first knew (or ought reasonably to have known) the material facts. Section 14B imposes an absolute longstop of fifteen years from the date of the negligent act or omission.

What is 'indirect discrimination' under the Equality Act 2010?

Answer: Applying a provision, criterion or practice (PCP) that is facially neutral but puts persons sharing a protected characteristic at a particular disadvantage compared with others, unless the PCP is a proportionate means of achieving a legitimate aim

Indirect discrimination (s.19 EA 2010) requires: (1) a PCP, (2) applied to persons with and without the protected characteristic, (3) which puts persons with the characteristic at a particular disadvantage, and (4) which puts the individual at that disadvantage, unless (5) it is a proportionate means of achieving a legitimate aim.

What principles govern the court's decision on whether to grant a stay of proceedings to enforce an arbitration agreement under s.9 of the Arbitration Act 1996?

Answer: The court must grant a mandatory stay of proceedings unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed

Section 9 of the Arbitration Act 1996 provides that where proceedings are brought in respect of a matter which the parties have agreed to submit to arbitration, the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed. The stay is mandatory, not discretionary, reflecting the UK's pro-arbitration policy and obligations under the New York Convention.

What is the constitutional significance of the decision in R (Miller) v Secretary of State for Exiting the European Union [2017]?

Answer: It held that the royal prerogative could not be used to trigger Article 50 because it would remove rights conferred by Act of Parliament, and only Parliament could authorise such removal

The Supreme Court in Miller (2017) held that triggering Article 50 TEU would inevitably result in the removal of rights that had been conferred on individuals through Acts of Parliament (particularly the European Communities Act 1972). Since only Parliament can remove statutory rights, the government could not use prerogative power to trigger Article 50 without parliamentary authorisation.

What are the three tracks to which civil cases are allocated under the CPR?

Answer: Small claims track (up to £10,000), fast track (£10,000–£25,000), and multi-track (over £25,000 or complex cases)

CPR Part 26 provides for three tracks: (1) small claims track (generally up to £10,000), (2) fast track (generally £10,000–£25,000, straightforward cases), and (3) multi-track (over £25,000 or cases involving complex issues of law or fact).

The Bolam test for professional negligence, supplemented by Bolitho v City and Hackney HA [1997], now requires that a professional's practice must:

Answer: Be capable of withstanding logical scrutiny and analysis by the court

Bolitho added that the court may reject expert evidence supporting a professional practice if that practice cannot withstand logical scrutiny, preventing the Bolam test from being satisfied merely by adducing expert evidence.

What is the test for wrongful trading under Insolvency Act 1986 s.214?

Answer: A director who continues to incur liabilities knowing (or ought to have known) that there is no reasonable prospect of avoiding insolvent liquidation may be ordered to contribute to the company's assets

Under s.214 Insolvency Act 1986, a liquidator may apply for an order against a director who continued to trade when they knew or ought to have concluded there was no reasonable prospect of avoiding insolvent liquidation, unless the director took every step to minimise losses.

In relation to secret trusts, what is the key distinction between a fully secret trust and a half-secret trust regarding communication?

Answer: For a fully secret trust, communication may occur at any time up to the testator's death; for a half-secret trust, communication must occur before or at the time of execution of the will

For fully secret trusts, the trust obligation can be communicated at any time before the testator's death (Wallgrave v Tebbs). For half-secret trusts, where the will reveals a trust exists but not its terms, communication must occur before or at the time the will is executed (Blackwell v Blackwell [1929]), not after.

What is the duty to make 'reasonable adjustments' for disabled employees under the Equality Act 2010?

Answer: Where a provision, criterion or practice, physical feature, or absence of an auxiliary aid puts a disabled person at a substantial disadvantage, the employer must take reasonable steps to avoid the disadvantage

S.20-21 Equality Act 2010 imposes three requirements: adjustments to PCPs, removal/alteration of physical features, and provision of auxiliary aids — where each puts the disabled person at a substantial disadvantage compared to non-disabled persons. What is 'reasonable' depends on factors such as cost, practicality, and effectiveness.

What is the procedure for a 'derivative claim' under Companies Act 2006?

Answer: A shareholder applies to court for permission to continue a claim on behalf of the company against a director for negligence, breach of duty or trust, or breach of statute

Under ss.261-264 CA 2006, a member may bring a derivative claim on behalf of the company, but must obtain court permission to continue it. The court must consider whether the claim is prima facie in the company's interests, whether the wrong has been ratified, and the views of independent shareholders.