SQE Study Notes: Procedural Law (Book 2)

The principles, procedures and processes involved in dispute resolution

Different options for dispute resolution:

• the characteristics of arbitration, mediation and litigation which make them an appropriate mechanism to resolve a dispute.

Resolving a dispute through a civil claim:

• preliminary considerations: limitation, pre-action protocols:
• parties and causes of action
• calculating limitation periods for claims in contract and tort
• Practice Direction – pre-action conduct
• principles and purpose of pre-action protocols governing particular claims and consequences for failure to follow their terms
• applicable law: mechanisms to determine which country’s laws apply to a contractual or tortious claim issued in the courts of England and Wales
• jurisdiction: mechanisms to determine jurisdiction over an international contractual or tortious claim.

Where to start proceedings:

• allocation of business between the High Court and the county court
• jurisdiction of the specialist courts.

Issuing and serving proceedings:

• issuing a claim form
• adding, removing or substituting parties
• service of a claim form within the jurisdiction
• procedure for service of a claim form outside the jurisdiction (with or without the court’s permission) and mechanisms for effecting valid service in another jurisdiction
• deemed dates of service and time limits for serving proceedings
• service by an alternative method.

Responding to a claim:

• admitting the claim
• acknowledging service and filing a defence and/or counterclaim
• disputing the court’s jurisdiction
• entering and setting aside judgment in default
• discontinuance and settlement
• time limits for responding to a claim.

Statements of case:

· purpose, structure and content of a claim form, particulars of claim, or defence relating to a claim in contract or tort

• purpose, structure and content of a reply, Part 20 claim, or defence to Part 20 claim
• requests for further information about statements of case
• amendments.

Interim applications:

• procedure for making an application
• purpose, procedure and evidence required for particular applications:
  • summary judgment
  • interim payments
  • interim injunctions.

Case management:

• the overriding objective
• track allocation
• case management directions for cases proceeding on the fast or multi-tracks
• non-compliance with orders, sanctions and relief
• costs and case management conferences.

Evidence:

• relevance, hearsay and admissibility
• the burden and standard of proof
• expert evidence -
  • opinion evidence
  • duties of experts
  • single joint experts
  • discussion between experts
• witness evidence - 
  • witness statements
  • affidavits.

Disclosure and inspection:

• standard disclosure
• orders for disclosure
• specific disclosure
• pre-action and non-party disclosure
• electronic disclosure
• privilege and without prejudice communications
• waiver of privilege.

Trial:

• summoning witnesses
• preparations for trial -
  • purpose of pre-trial checklists and hearings
  • purpose of trial bundles.
• trial procedure including modes of address, court room etiquette and the difference between leading and non-leading questions
• the nature and effect of judgment.

Costs:

• costs management and budgeting
• inter-partes costs orders (interim and final)
• non-party costs
• qualified one-way costs shifting
• Part 36 and other offers
• security for costs
• fixed and assessed costs.

Appeals:

• permission
• destination of appeals
• grounds for appeals.

Enforcement of money judgments:

• oral examination
• methods of enforcement
• procedure and mechanisms for effecting valid enforcement in another jurisdiction.

Core knowledge areas of freehold real estate law and practice

Investigation of a registered and unregistered freehold title:

• key elements and structure of freehold property transactions
• process of analysing Land Registry official copy entries
• process of analysing an epitome of title and deducing ownership
• issues that could arise from an investigation of title and further action required
• purpose and process of reporting to the client.

Pre-contract searches and enquiries:

• range and purpose of making searches and raising enquiries.
• who would make the searches and raise enquiries.
• results of searches and enquiries.

Law Society Conveyancing Protocol

 

Finance:

• sources of finance for a property transaction
• types of mortgage.

Acting for a lender:

• lender’s requirements
• purpose of a certificate of title.

Preparation for and exchange of contracts:

· key conditions contained in the:

• • Standard Conditions of Sale
  • Standard Commercial Property Conditions.
• purpose of, and matters covered by, special conditions

· methods of holding a deposit:

• • stakeholder

§ agent

• insurance and risk
• basics of VAT in a contract
• timing for issuing certificate of title to a lender
• the practice, method and authority to exchange
• consequences of exchange.

Pre-completion:

• form of transfer deed and formalities for execution
• pre-completion searches
• pre-completion steps.

Completion and post-completion:

• methods and effect of completion
• post-completion steps.

Remedies for delayed completion:

• common law damages
• contractual compensation
• notice to complete
• rescission.

Core knowledge areas of leasehold real estate law and practice

Structure and content of a lease:

• repair
• insurance
• alterations
• user and planning
• rent and rent review
• alienation
• options for the term of a lease
• Code for Leasing Business Premises.

Procedural steps for the grant of a lease or underlease:

• drafting the lease
• purpose of an agreement for lease
• deduction of title
• pre-contract enquiries and searches
• pre-completion formalities
• completion and post-completion steps.

Procedural steps for the assignment of a lease:

• deduction of title
• pre-contract enquiries and searches
• landlord’s consent
• deed of assignment and covenants for title
• pre-completion formalities
• authorised guarantee agreement
• completion and post-completion steps.

Licence to assign and licence to underlet:

• purpose of and who prepares the draft
• privity of contract and how the licence deals with this
• key provisions in the licence.

Leasehold covenants:

· liability on covenants in leases –

• • leases granted before 1 January 1996
  • leases granted on or after 1 January 1996

 

Remedies for breach of a leasehold covenant:

• action in debt
• forfeiture
• Commercial Rent Arrears Recovery
• pursue guarantors and/or rent deposit
• specific performance
• damages
• self-help/Jervis v Harris clause.

Termination of a lease:

• effluxion of time
• notice to quit
• surrender
• merger.

Security of tenure under a business lease:

· Landlord and Tenant Act 1954 (Part II) –

• • application of 1954 Act
  • renewal lease by the tenant
  • termination by the landlord
  • landlord’s grounds of opposition
  • terms of new lease
  • availability of compensation.

Core principles of planning law

Statutory definition of “Development”

Matters that do not constitute “Development”

Matters that do not require express planning permission

Building regulation control

Enforcement: time limits and the range of local planning authority’s enforcement powers

Taxation – Property

See Appendix A - outline information on Income Tax, Capital Gains Tax, Corporation Tax, VAT, Stamp Duty Land Tax/Land Transaction Tax and Inheritance Tax

Wills and Intestacy

Validity of wills and codicils:

• testamentary capacity
• duress and undue influence
• formal requirements.

Personal Representatives:

• the appointment of executors
• renunciation and reservation of power.

Alterations and amendments to wills:

• effect of alterations made to wills both before and after execution
• use of codicils.

Revocation of wills:

• methods of revocation
• effect of marriage and divorce of a testator.

The interpretation of wills:

• effect of different types of gift
• failure of gifts.

The intestacy rules:

• Section 46 of The Administration of Estates Act 1925
• the statutory trusts.

Property passing outside the estate:

• joint property
• life policies
• pension scheme benefits
• trust property.

Probate and Administration Practice

Grants of representation:

• need for grant
• the relevant provisions of the Non-Contentious Probate Rules
• application procedure
• valuation of assets and liabilities
• excepted estates
• methods of funding the initial payment of Inheritance Tax
• burden and incidence of Inheritance Tax.

Administration of estates:

· duties of personal representatives

· liabilities of personal representatives and their protection

· the sale of assets to raise funds to pay funeral expenses, tax, debts and legacies

· distribution of the estate.

 

Claims against estates under the Inheritance (Provision for Family and Dependants) Act 1975:

· time limit

· applicants

· ground.

 

Taxation – Wills and the Administration of Estates

See Appendix A - outline information on Income Tax, Capital Gains Tax, Corporation Tax, VAT, Stamp Duty Land Tax/Land Transaction Tax and Inheritance Tax

Advising clients, including vulnerable clients, about the procedure and processes at the police station

Rights of a suspect being detained by the police for questioning:

· right to legal advice

· right to have someone informed of arrest

· reviews and detention time limits under PACE 1984, Code C.

 

Identification procedures:

· when an identification procedure must be held

· different types of identification procedure

· procedure for carrying out an identification procedure PACE 1984, Code D.

 

Advising a client, including vulnerable clients, whether to answer police questions:

· right to silence

· adverse inferences.

 

Procedure for interviewing a suspect under PACE 1984:

· role and appropriate conduct by defence legal representative/ solicitor including representation of vulnerable client

· role of appropriate adult and who can be an appropriate adult.

 

The procedures and processes involved in criminal litigation

Bail applications:

· the right to bail and exceptions

· conditional bail

· procedure for applying for bail

· further applications for bail

· appeals against decisions on bail

· absconding and breaches of bail.

 

First hearings before the magistrates’ court:

· classification of offences

· applying for a representation order

· procedural overview – what will happen at the hearing

· the role of the defence solicitor at the hearing.

 

Plea before Venue:

· procedure on defendant entering plea

· advising the client on trial venue.

 

Allocation of business between magistrates' court and Crown Court:

· procedure ss. 19–20 and s. 22A Magistrates' Courts Act 1980

· sending without allocation s. 50A Crime and Disorder Act 1998.

Case management and pre-trial hearings:

· magistrates' court case management directions

· plea and trial preparation hearing

· disclosure – prosecution, defence and unused material.

 

Principles and procedures to admit and exclude evidence:

· burden and standard of proof

· visual identification evidence and Turnbull guidance

· inferences from silence ss. 34, 35, 36, 37, 38 Criminal Justice and Public Order Act 1994

· hearsay evidence:

• • definition
  • grounds for admitting hearsay evidence

· confession evidence:

• • definition
  • admissibility
  • challenging admissibility ss. 76 and 78 PACE 1984

· character evidence:

• • definition of bad character
  • the 7 gateways s. 101(1) Criminal Justice Act 2003
  • procedure for admitting bad character evidence
  • court’s powers to exclude bad character evidence

· exclusion of evidence:

• • scope and application of s. 78 PACE and the right to a fair trial.

Trial procedure in magistrates’ court and Crown Court:

· burden and standard of proof

· stages of a criminal trial, including submission of no case to answer

· modes of address and Court room etiquette

· difference between leading and non-leading questions

· competence and compellability

· special measures

· solicitor’s duty to the court.

 

Sentencing:

· role of sentencing guidelines

· determining seriousness (aggravating and mitigating facts)

· concurrent and consecutive sentences

· mitigation

· types of sentence:

• • custodial sentences
  • suspended sentences

§ community orders

 

· Newton hearings.

 

Appeals procedure:

· appeals from the magistrates’ court:

• • procedure for appeal against conviction and/or sentence
  • powers of the Crown Court
  • appeal to the High Court by way of case stated

· appeals from the Crown Court:

• • grounds of appeal
  • procedure for making the appeal
  • powers of the Court of Appeal.

Youth court procedure:

· jurisdiction and grave crimes

· allocation

• • youths jointly charged with adult

Sentencing:

· role of the Sentencing Children and Young People – definitive guidelines

· referral orders

· detention and training orders

· youth rehabilitation orders.

Legal Services

The regulatory role of the SRA:

• principles and risk-based regulation
  • reserved legal activities
  • professional indemnity insurance
  • other regulated providers of legal services

The Equality Act 2010

Money laundering:

• purpose and scope of anti-money laundering legislation including the international context
• circumstances encountered in the course of practice where suspicion of money laundering should be reported in accordance with the legislation
• the appropriate person or body to whom suspicions should be reported, the appropriate time for such reports to be made and the appropriate procedure to be followed
• direct involvement and non-direct involvement offences, and defences to those offences under Proceeds of Crime Act 2002
• due diligence requirements

 

Financial services:

• the financial services regulatory framework including authorisation, and how it applies to solicitors' firms
• recognition of relevant financial services issues, including the identification of specified investments, specified activities and relevant exemptions
• application of the Financial Services and Markets Act 2000 and related secondary legislation to the work of a solicitor
• appropriate sources of information on financial services.

 

Funding options for legal services:

· private retainer

· conditional fee arrangements

· damages based agreements

· fixed fees

· eligibility for criminal and civil legal aid

· third party funding

· legal expenses insurance.

Appendix A – Taxation

Appendix with outline information on Income Tax, Capital Gains Tax, Corporation Tax, VAT, Stamp Duty Land Tax/Land Transaction Tax and Inheritance Tax

Appendix B – Ethics and Professional Conduct

Appendix with outline information on the SRA Principles, Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers, and SRA Code of Conduct for Firms in relation to Managers in authorised firms and Compliance Officers

Appendix C – Solicitors Accounts

Appendix with outline information on the SRA Accounts Rules 2019