Paper 50 INSTITUTE OF LEGAL EXECUTIVES LEVEL 3 PROFESSIONAL DIPLOMA IN LAW MIXED ASSESSMENT ROUTE LAW EXAMINATION EXAMINER S REPORT AUTUMN 2007 This report sets out the main points and issues which candidates should have considered in answering the questions. It is not intended to cover all possible points. The report also comments on how candidates dealt with individual questions, where this is appropriate. SECTION A Contractual Obligations 1. This question needed description and explanation of the points and cases set out below: Terms: (i) warranties: minor term; if broken only claim damages, Bettini v Gye (1876) late for rehearsals; (ii) conditions: major term of contract; if broken can end contract or carry on; and claim damages; Poussard v Spiers (1876) late for first week; (iii) innominate terms: cannot easily be put into other categories; courts look at effect of breach, if major treat as condition, if minor treat as warranty, Hong Kong Case (1962). Misrepresentation: must be statement of fact and not: a mere puff; a statement of law; statement of opinion, Bisset v Wilkinson (1927); statement about the future; silence is not a misrepresentation but exceptions include With v O Flanaghan (1936) and Notts Brick Co v Butler (1885); statement must induce contract, must be material and must be relied on, Attwood v Small (1838). The answers on terms were often confused between conditions and warranties, and few could explain innominate terms. Some explained manufacturers warranties which were irrelevant. The answers on misrepresentation were also poor. Many could only write a few lines and some explained the types of misrepresentation which were not relevant. There were some competent answers. 2. This question required the identification and application of the following legal principles and cases: dress: discharge of contract by performance; must be precise and exact, Cutter v Powell (1795); but consider substantial performance, Hoenig v Isaacs (1952); application. cake: discharge by breach: anticipatory breach, Hochester v De La Tour (1853); application. hall: discharge by frustration; if something happens without fault of either party which makes contract impossible, illegal or radically Page 1 of 7
different, Taylor v Caldwell (1863); Law Reform (Frustrated Contracts) Act 1943 money paid can be recovered etc.; application. Many candidates struggled to identify the legal issues and some tried to answer on the basis of offer and acceptance, which was irrelevant. 3. To answer this question successfully some explanation and application of the following points was required: (c) Fiona: Equal Pay Act 1970 s1 every woman s contract has an equality clause; consider if work of equal value, Hayward v Cammell Laird (1988); defence of genuine material difference; application. Hans: common law duty of employee to take care, including looking after employer s property, Superlux v Plaisted (1958); application. Ivor: common law duty of employer to provide safe equipment, Bradford v Robinson Rentals (1967); Employers Liability (Defective Equipment) Act 1969 employer liable but can sue manufacturer; application here. The main problems in answers were a lack of knowledge and difficulty identifying the legal issues. For example, in part many simply said that the jobs were completely different and did not consider the Equal Pay Act 1970. The stronger answers did identify some of the above issues but they usually lacked any details. SECTION B Property Transactions 4. This question needed an explanation of the following points: Land: LPA 1925 s205 includes mines, minerals, buildings, easements etc.; includes things attached, the air above; gold and silver belong to Crown, coal etc. to State; airspace: intrusion is trespass, but Bernstein v Skyviews (1978); ground includes land, lakes etc.; incorporeal rights: rights over other land; fixtures and fittings. fee simple absolute in possession: fee inheritable; simple by all heirs; absolute no conditions; in possession immediately; known as freehold land; term of years absolute: must be fixed or determinable period, for example, a week; need not be in possession; must have exclusive possession. 5. This question required some explanation and application of the following points: Lucy: explain easements: both parties must have estate in land, right must benefit land rather than be a personal right; explain licence: permission to enter land; can be created orally or impliedly; can be revoked; application here. Page 2 of 7
Mike: land includes airspace; trespass; but aircraft can fly at reasonable height Civil Aviation Act 1982, Bernstein v Skyviews (1978); application here: does Mike fly too low? Ned: requirements for contract for sale of land, LP(MP)Act 1989 s2, void unless made in writing, incorporates all terms, signed by both parties; application here. 6. Some explanation of the following points was needed: lease: fixed start date, must be certain; fixed or determinable duration: this is different to a freehold; exclusive possession: tenant has right to exclude all others, unlike a licence. obtain possession but need court order if dwelling; sale under LPA 1925 s103; sue for loan; appoint receiver, usually for a business; foreclose, mortgagee takes property. Only a few candidates chose this question. SECTION C Family Welfare 7. This required an explanation of the points set out below: MCAct 1973 s25(1) welfare of any child of the family; s25(2) financial resources; financial needs and obligations; standard of living; age and duration of marriage Foster v Foster (2003); physical or mental disabilities; contributions to welfare of family White v White (2001); conduct of parties; benefits lost on divorce. orders: maintenance pending suite; periodic payments, secured or unsecured; lump sum orders; transfer of property orders; settlement of property, Mesher v Mesher (1980), Martin v Martin (1977); sale of property; child orders; pensions. Some answers explained divorce or void marriages which were not relevant. The better answers dealt with a wide range of points and cases. There were some excellent answers. 8. This needed an explanation and application of the following rules: Ruth: CAct 1989: consider emergency protection order s44, if child likely to suffer significant harm; care order s33, taken into local authority care. Sam: prohibited steps order s8, to stop someone doing something which is part of parental responsibility; also consider residence order s8. Tara: supervision order s35 social worker to advise, assist and befriend. The weaker answers lacked detail of the orders and tended to be descriptive. The stronger answers covered the main points and made an effort to apply the law. Page 3 of 7
9. This question could have been answered by describing the following points and cases: revocation: by marriage or civil partnership, unless in expectation of marriage; by another will Wills Act 1837 s20; by destruction, Wills Act 1837 s20, must be intention and destruction, Cheese v Lovejoy (1877). IPFDA 1975: wife, husband or civil partner; former spouse or civil partner who has not remarried; child of deceased; anyone treated as a child of the family; anyone maintained by deceased immediately before death; anyone living in same household as husband or wife or civil partner for 2 years before death; spouse standard and maintenance standard. A popular question which generally produced a good standard of answers. The main weaknesses were a poor knowledge of the IPFDAct 1975 or confusion with the AEAct 1925. The better answers had clear explanations of all the main points. SECTION D Tort 10. This needed some explanation and application of the cases and principles below: Vic: negligence: duty of care, breach and damage; duty: foreseeability, proximity, just and reasonableness, Pearson v Lightning (1998), Hill v Chief Constable West Yorks (1988); breach: Bolam test standard of skilled engine driver; factors: risk of serious injury, cost of avoiding harm etc.; application. Wilma: negligence: duty, breach and damage; foreseeability; causation: factual and legal causation; Wagon Mound (1961) principle of remoteness; application here. Yvonne: nervous shock: secondary victim, not in range of physical harm; factors from Alcock CC South Yorks (1991): relationship of love and affection, proximity, own senses, sudden shock; consider if live on tv; application here. The weaker answers often lacked legal principles and cases, and some explained damages in detail but did not mention the legal principles needed to establish liability. The stronger answers covered a number of the above points but even amongst these, knowledge of nervous shock was poor. 11. Some description of the following points was required: who can sue: must have an interest in land, Malone v Lasky (1907). who can be sued: creator, occupier or landlord; not liable for acts of trespassers unless adopt acts, Sedleigh-Denfield v O Callaghan (1940); landlord not normally liable if parted with possession but Tetley v Chitty (1986). defences: statutory authority; prescription. Page 4 of 7
Only a small number of candidates chose this question and the answers were very poor. Most explained the requirements to establish nuisance rather than answering the question. 12. An explanation of the points and cases set out below was needed: assault: act causes claimant to fear immediate battery, Tuberville v Savage (1669). battery: a direct act which causes physical contact with the claimant; must be intentional but no need to be hostile, Re F (1989). false imprisonment: to restrain someone; must be total restraint; no need to know falsely imprisoned, Meering v Graham White Aviation (1920). Only a small number of candidates chose this question. SECTION E Criminal Process 13. This required an explanation of the following points: mens rea: intention: direct intent purpose, oblique intent inevitable consequence, R v Moloney (1985), R v Woollin (1998); recklessness: usually the minimum to be found guilty; subjective test, R v G (2003); negligence: judged by standard of the reasonable man, Mc Crone v Riding (1938). insanity: Criminal Procedure (Insanity) Act 1964 if defence successful verdict is not guilty by reason of insanity; M Naghten Rules (1843) sane unless prove defendant is labouring under a defect of reason due to a disease of the mind as not to know nature and quality of the act or if he did know, that he did not know it was wrong; must be loss of reasoning power; R v Hennessey (1989), R v Burgess (1991). Many candidates only wrote a few lines in part and there was a poor understanding of insanity in part. The better answers covered a wider number of the above points. 14. This needed some explanation of the points and cases below and application to the question: Cilla: murder: killing with malice aforethought, intention to kill or cause gbh; actus reus is act of killing, mens rea intent to cause death or serious injury; involuntary manslaughter: unlawful and dangerous act; transferred malice, R v Latimer (1886); defence of intoxication: for crimes of specific intent like murder; application here. Dana: murder; involuntary manslaughter; harm must be physical R v Dawson (1985); voluntary manslaughter and provocation; application. Approximately one third of the candidates chose this question and the answers were generally very weak. The main problems included a failure Page 5 of 7
to identify the main offences and legal issues and a poor knowledge of the relevant law. 15. A description of the points and cases set out below could have provided the basis of the answer: theft: Theft Act 1968 s1 dishonestly appropriate property belonging to another with the intention to permanently deprive; actus reus appropriation of property; mens rea dishonestly and intention to permanently deprive; s3 appropriation is assumption of rights of owner, R v Morris (1983); property covers tangible and intangible; not dishonest if believe have a legal right, belief person would consent or person cannot be found. statutory conspiracy: Criminal Law Act 1977 s1 offence if someone agrees with another that a course of conduct will be followed which will involve commission of an offence; an agreement to commit a crime; actus reus need an agreement; if agreement carried out conduct must result in a crime; mens rea intention a crime be committed. The poorer answers tended to be brief, rather general and lacking in legal principles. The stronger answers covered some of the relevant points but lacked depth in places and lacked cases. SECTION F Business Formation 16. This required an explanation of some of the points set out below: Unlimited partnership/ limited company: Advantages of partnership: no formalities to start; no formalities to run; information kept private; all partners can manage business; Disadvantages: no separate legal person; dissolution on death or retirement; not own property in partnership name; unlimited liability of partners; cannot sell share in partnership; more difficult to raise capital etc. The weaker answers gave a general explanation of sole traders, partnerships and companies. The better answers had more focus on the question and identified a number of the advantages and disadvantages. 17. This needed identification of the legal issues and application of the relevant law: profits: P Act 1890 s24(1) all partners entitled to share equally in profits; s24 applies if no agreement to the contrary; application here. plants: P Act 1890 s28 duty to give true accounts, s29 must account for benefit received, s30 must not carry on business in competition, Bentley v Craven (1853); application. accident: P Act 1890 s 10 both the firm and the partners are liable for wrongful acts committed in the course of the business, Hamlyn v Houston (1903); application here. Page 6 of 7
This was quite a popular question and it produced a good standard of answers. The vast majority of those who chose it passed. The poorer answers tended to give general advice rather than identifying the relevant rules. The better answers did identify most of the points and made some effort to apply the law. 18. This question could have been successfully answered by describing the points set out below: Memorandum of Association: name clause, must end with ltd or plc; registered office, situation in England & Wales or Scotland; objects clause, what the company is going to do; liability clause, that liability of members is limited; capital clause, amount of share capital and division into shares. Meetings: AGM: must hold AGM within 18 months of incorporation, 21 days notice; EGM may be called by directors or 10% members. Resolutions: Ordinary Resolution: simple majority, 14 days notice, used for normal business; Special Resolution: 75% of those present and voting; to alter articles, change objects etc., 21 days notice; Extraordinary Resolution: 75% majority, used for creditors voluntary winding up. General Observations The pass rate is similar to other Autumn examinations over the last few years. The overall standard of answers was again poor and sometimes the answers in whole sections of the paper were very disappointing, notably Section A Contract, Section D Tort and Section E Criminal. The main general suggestions which can be made on the basis of these examination scripts are: the need for a better knowledge of the law, to leave out irrelevant material, to focus on what the question requires and to make some effort to apply the law in problem questions. However, there were some strong answers, as the comments on the individual questions above show including, Question 4 on land, Questions 8 and 9 on family, and Question 16 on business. More particular comments on these scripts are that some candidates produced competent answers in four sections of the paper but only wrote a few lines in the other two sections and as a consequence often failed to reach the pass mark. Finally, candidates should also try to use a new paragraph for each person being advised or each claimant or each offence as the case may be. EXAMINATION STATISTICS Candidates Sitting: 98 Percentage Passing: 46% Distinctions: 1 2007 Institute of Legal Executives Page 7 of 7