PAPER: FC2 MARKS AWARDED: 77

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1 PAPER: FC2 MARKS AWARDED: 77 Question 1 i. Is evidence which is a first hand account that puports to establish the truth of the statement contained in it. Given orally in court under oath ii. Is any out of court statement that is subsequently relied upon in court as evidence as to the truth of the statement contained in it. I.e. - could be a witness statement where witness is not called. iii. In civil cases hearsay is admissible but is generally weighted to be less pesuasive that direct testimony. Depends on range of factors including whether it would have been easy/practicable to call witness. iv. In criminal cases hearsay evidence is not admissible. Expert opinions. Opinions geneally supermissible as judgement should be arrived at from the facts facts interpreted by jury (criminal) or judge (civil) to reach verdict/judgement. An affadavit is a statement sworn under oath and witnessed by a solicitor as evidence to the truth of the statements contained in it. A witness statement is accompanied by a statement of truth and is not sworn before a solicitor. If the other party's representative has failed to pass a communication on to them (or there are reasonable grounds to suppose they haven't) In cases of extreme urgency where it is necessary to contact party directly. To enquire as to who their representative is. MARKS AWARDED 10/10 Question 2 Consideration is the price for which a promise is bought. It must be substantial (ie it must amount to valid consideration) but it does not need to be adequate. Consideration moves from the promise to the promisor. Consideration is at the detriment to one party and/or to the benefit of the other party. Past consideration is not valid consideration. Does not have to be monetary could be action. i. Privity of contract is the principle that someone who is not a party to a contract cannot be bound by that contract (ie it cannot be enforced against them) and cannot sue under that contract (i.e they cannot enforce it themselves). ii. This allows third parties who are explicitally mentioned in the contract to sue undo it. 1

2 If they are explicitally mentioned as having the right to enforce it then they can do. If they are assigned a benefit by the contract and it is obvious that, although not explicitally stated, the parties intend this to be binding then the 3 rd party can sue under the contract. i. The innocent party cannot repadrate the contract. They can sue for damages for losses sustained as a result of the breach. ii. A court will decide whether the breach of the innominate term is serious or not serious. If it is serious then the term is treated as a condition of a contract and the innocent party can repudiate the contract if they wish. If it is not serious then it is treated as a warranty. In both cases innocent party can sue for damages. MARKS AWARDED 8/10 Question 3 Someone who has bought a property at the advertised price by accepting a unilateral offer to sell the property. There must be a false statement of fact, not opinion, that is made to someone other than the claimant. The false statement must be published maliciously. That is either in the knowledge it was false (or reckless to the fact it was false) or with intention/motive to cause economic damage to the claimant. The claimant must prove special damage (that is direct damage of economic nature due to the malicious statement) but does not have to prove special damage if he can show the words were intended to cause economic harm to him, or to his occupation, calling, trade, profession etc. Without prejudice refers to a statement or communication made during the course of making a genuine attempt to settle a dispute, and that cannot be relied upon or disclosed in court as evidence of any admission of the party making the without prejudice communication. Cannot be relied upon if the statement/communication is not a genuine attempt to settle the dispute. If a judge discovers a without prejudice communication (ie he reads the contents) he must quit the case and assign a new judge to it. Can be made without prejudice save as to costs where it will be disclosed for the purpose of calculating costs after the judgement is made. MARKS AWARDED 7/10 Question 4 A sole trader is an individual who is in business by themselves. There are no requirements to set up as a sole trader, but must keep accurate accounts for tax purposes. Sole trader keeps all of the profit and owns all of the assets Sole trader does not have to make his accounts public. Sole trader is legally not distinguished from the business and he takes unlimited personal liability for the debts of the business. By contrast a Limited Company must be formed 2

3 through a formal process of incorporation. They must filed their annual accounts which become public. Ltd company is owned by its shareholders and is a legal entity in its own right. Day to day running is done by the directors. Each shareholder of the Ltd company has personal liability for the company's debts that is limited up to the value of their investment in it (biggest difference to sole trader.) Contracts with Ltd company do not need to be assigned if ownership changes. Regulated person cannot deal with client monies in any way that is contrary to the client's interests and needs their instructions to use it. Can hold max of 500,000 in client monies The owners are tenants in common who are given an equal undivided share each (defined in percentage terms). This means that each owner is free to deal with their share as they see fit. If tenant does then their share passes to the person stipulated in their will not the other tenants in the property. Question 7 Each tenant can divide, assign, mortgage their share as they wish. MARKS AWARDED 5.5/10 IPEC only has jurisdiction over Intellectual property cases below a certain value in damages (ie it cannot award more than 500,000 damages). The High Court has unlimited jurisdiction over all ranges of civil matters, and can award unlimited damages in patent infringement cases. High Court has unlimited power to grant injunctions. Must deal with the case justly and at proportionate cost. This means: ensuring the parties are on equal footing saving expense dealing with the case in a manner proportionate to: the financial position of the parties the money involved the complexity of the issues the importance of the case dealing with it expiditiously and fairly allotting to it an appropriate share of the courts resources whilst acknowledging the need to allot resources to other cases ensuring the parties comply with the rules, practice directions and orders Jonathan must prove that, on the balance of probabilities, James is more likely than not to have been infringing the patent. MARKS AWARDED 11/15 3

4 Question 8 Sacha can apply for an interim injunction, without notice. The court will need to consider the points from American Cyamid v. ethreon Is there a serious issue to be tried? Is there actual/potential damage which is serious? Weigh up the damage to Sacha (Claimant) if injunction not granted vs damages to Warren (Defendant) if it is granted. Consider what happens if status quo maintained? Consider, as a last resort, the merits. Will also consider the prospects of success of Sacha in obtaining a judgement (vs prospects of Warren's defence). (Series 5 Software v Clarke) Sacha will need to disclose all evidence in her posession to the court (or else order may be quashed). Sacha will need to convince the court that there is some urgency to grant the injunction (ie the impending trade show). (e) Sacha must give a cross-undertaking in damages. If she loses the case, she promises to pay damages to Warren for losses suffered as a consequence of the injunction. Must be in writing and it must be made to the judge in the court dealing with the case (ie court where claim was filed). Must be verified with statement of truth. Hearsay evidence as to whether Warren does infringe the reg. design. Direct evidence of the fact Warren said this. Not met the requirement of standard of professional care. Must have due regard to proper standard of professional care expected of him (competence). Failed to put client's interest ahead of his own ( interest in not following it up). MARKS AWARDED 10/15 Question 9 Offer must be clear, unambiguous offer that is capable of acceptance, and is made with the intention of being binding. Miranda (M) and Donald (D) discussed manufacture was an offer made explicitally by either? Not an offer if it is an invitation to treat i.e M saying she may be willing to enter into a contract for manufacturing the toys. 4

5 Acceptance must be clear, unambiguous acceptance of the whole terms of the offer. D. began manufacturing anyway this could be acceptance by conduct (as in Carloll v Carbolic Smoke Ball where women used ball as instructed) however acceptance must be communicated to the offeror. Did D. tell M. he was going to manufacture the toys? Consideration the price for which the promise is bough. Must be a benefit the one party and/or detriment to the other party. D. may have paid consideration by manufacturing the toys without being paid. Does not have to be monetary can be via conduct. Intention to create legal relations there must have been an intention for both parties to be bound by the contract. Since this is a commercial scenario then there is an assumption that there exists an intention to create legal relations. Capacity to contract if M. or D are under 18 no contract as minors can't contract except for necessities. Conclusion: There does not seem to be a firm offer or acceptance in this scenario. In particular there is no agreement over what consideration is to be paid. Therefore more than likely no contract was formed. i. This is hearsay evidence. Given less weight than if she gave direct testimony. Would be easy to call her considering it's M. who started the case therefore weighted down by judge. ii. Any expert owes their duty first and foremost to the court. Court likely to see that M.'s expert could be biased and now allow them to give evidence. No right to submit expert evidence it is at discretion of the court. Did not meet standard of care required by proper professional. The toys are useless as evidence without being placed in context by testimony or M.'s witness statement. Negligent act by Xavier. Assignment of reg design needs to be entered onto the register of designs, and must be signed by the assignor (M.). Nothing was signed and so a constructive trust exists in which M. is legal owner and D. is the beneficiary. Donald must get M. to perfect the assignment, but D. does own the benefit in equity and so can commence infringement action. MARKS AWARDED 15/15 Question 10 A limited partnership is a limited liability partnership (4P) This is formed under a formal process of incorporation governed by the Limited Liability Partnerships Act and is done at Companies House. The LLP must have a membership agreement but unlike limited companies, many formalities are 5

6 dealt with in the statute and a default membership agreement exists. An LLP is legally distinct from its members. Each member, under certain circumstances, has limited liability for the actions of the other members, with their personal liability limited to the amount they have invested (ie. they are not always jointly and severally liable for the other partners). An LLP must file its accounts at Companies house, but is generally less administratively burdensome and more flexible than running a limited company. An LLP is owned by its members. Must establish that a duty of care exists. This is done by reference to the neighbour principle in Donaghue v Stevenson, or by the factors set out in Caparo v Dickman (forseeability of harm, proximity of parties, justice + fairness in imposing liability). Must establish that the duty of care has been breached. Done by reference to the standard of care given by a reasonable man. If the person concerned is a professional, then the standard of care is that of a fully competent professional in that field (for Jonathan a fully qualified patent attorney). Consider also: likelihood damage would occur from breach; cost/practicability of preventing damage; importance of object to be attained; and the seriousness of the damage if it occurs. Must establish that damage was caused as a result of the breach. Breach only has to be one of the sources of damage not the sole source. But for principle applies. Must establish that the damage was reasonably foreseeable (ie was not remote). Actions of the claimant, or any 3 rd party actions may be relevant here. Defence will look for break in the chain of causation. (e) Under the principle of vicarious liability if the negligent act was carried out in pursuance of the defendants employment. Jonathan did not send a client care letter. As such the relationship may be between Jonathan and the pharmaceutical company, and not the firm and the pharmaceutical company. Therefore the firm not liable for Jonathan's actions. Would need to check if he issued them terms of business (which is a requirement of IPReg). Pharmaceutical company owes the bank money, but the bank is not able to sue Jonathan for causing the loss as they have no contract with Jonathan (privity of contract). Bank needs to get pharmaceutical company to sue Jonathan and reclaim the money. Failed to send terms of business to the pharmaceutical company. Did not meet the standard of care due by professional (competence). MARKS AWARDED 10/15 6