Monday 25 April 2011

QLTS Asseement Dates

You may be aware of the forthcoming QLTS assessments scheduled as under:

1) MCT stage - 6th July 2011 (the first one was conducted in February 2011)
2) OSCE stage - 14-16 June 2011 and 7- 9 September 2011
3) TLST stage - 17 - 18 June 2011 and 10 - 11 September 2011

Click here for more details.

Is anyone out there appearing for the assessments on these dates??? This is the place to leave your comments and network with others who are in the same boat...

Thursday 21 April 2011

Exam to get examined !

You may already be aware that you will have to take exam to get examined (really??!!) under the QLTS regime. I thought this required a specific mention in my blog and so here it is.

If you are an international applicant, you should have command over the English language equivalent to atleast 7.5 score on the IELTS (International English Language Testing Scheme) scale in order to be eligible to take QLTS assessment. Click here for more details. If you have not given the IELTS as yet, please do so. All the best!!

Wednesday 20 April 2011

8 - The Structure of the UK and devolution

Source: Core Text on Constitutional and Administrative Law

Following is the summary of this chapter:

1) The structure of the UK - England, Wales, Scotland and Northern Ireland

2) The devolution - Welsh devolution, Scottish devolution and Northern Ireland devolution - See the difference in the legislative powers of Welsh assembly and Scottish, Northern Ireland Parliaments

Read this document for a brief summary of the devolution. Also watch this video:

7 - The European Communty and the European Union

Source: Core Text on Constitutional and Administrative Law

Following is the summary of this chapter:

1) European Community and European Union

2) Pillars of European Union - (a) European Communities (b) Common foreign and security policy (c) Police and judicial cooperation (d) Visa, asylum and immigration

3) The Institutions - (a) Council of Ministers (b) Commission (c) Parliament (d) ECJ

Before you leave this page, browse this site and watch this video:

Tuesday 19 April 2011

The UK Parliament

If you are studying the UK Constitutional Law, then you should watch these clips. There are many such clips on youtube if you are interested...







6 - Parliament

Source: Core Text on Constitutional and Administrative Law

Following is the summary of this chapter:

1) House of Commons - (a) Election (b) Franchise (c) Electoral system - first past the post

2) Composition o House of Commons - (a) 3 main parties - Labour, Conservative and Lib Dem (b) Universal adult suffrage (c) Membership by peers (d) Disqualification (e) Resignation

3) Officers of House of Commons - (a) Speaker (b) Father (c0 Life of parliament

4) House of Commons Sitting - (a) Voting (b) Abstaining (c) Pairing

5) The Committee System of the HC

6) House of Lords - (a) Composition - Hereditary peers, life peers, bishops

7) Reform of the House of Lords - See these links 1, 2, and 3

8) Parliamentary privilege

Saturday 16 April 2011

Snail in a Bottle

Donoghue v Stevenson (1932) is considered as one of the greatest cases in the legal history and is a turning point on the tort of negligence. Click here for the full judgement.

You should know that while it was Lord Atkin who consistently batted for Donoghue, it was Lord Macmillan's casting vote which turned the table. You should also keep in mind that the case never reached a full trial because of the out-of-court settlement by Stevenson & Co which paid £200 to Donoghue. The lady who made an indelible mark in the annuls of history was a pauper when she went on appeal to the HL and her estate was worth just £350 when she died 24 years later :(((

Here is a spoof on this case based on the track "message in a bottle" :)))))

11 - Strcit Liability

Source: Unlocking Torts

Following is the summary of this chapter:

1) Introduction - See the gap left over by Trespass, Negligence and Nuisance which Strict Liability attempts to fill (Rylands v Fletcher)

2) Strict Liability - Ingredients: (a) Bringing into land and keeping there (b) Something likely do mischief (see the important Transco's case) (c) The mischievous thing must escape (see two important cases Read and Miles) (d) Non-natural use

3) Parties to the action - Claimant must have proprietor interest in land, defendant may not

4) Defences - (a) Statutory authority (b) Consent (c) Act of stranger (d) Act of God (e) Default of claimant

5) Problem with the rule

6) Liability for fire - Fires Prevention (Metropolis) Act

7) See the table on page 342 which summarises these torts. This table is very useful.

10 - Nuisance

Source: Unlocking Torts

Following is the summary of this chapter:

1)Introduction - Components: (a) Private nuisance (b) Public nuisance (c) Statutory nuisance; Rights covered: 7 rights have been listed in the book

2) Private nuisance - (a) Meaning (b) In gradients: (i) Unlawful / unreasonable use of land (ii) which causes indirect interference (iii) with another's land (c) Parties for action (c) Defences - prescription, statutory authority, planning consent, Also see what are not effective defences (d) Remedies - Injunction, damages and abatement

3) Public Nuisance - (a) Meaning (b) Ingredients: (i) Class of people (ii) Special damage (c) Remedies

4) Statutory nuisance - under Environmental Protection Act

5) Relationship with other torts such as negligence

6) Nuisance and HRA (Article 8)

7) Other remedies - (a)Anti-social behavior (b) Protection from Harassment Act (c) ADR

MCQs and Day-1 Outcomes

Some of you must have already read and re-read (and pulled your hair!!) the Day-1 Outcomes trying to decipher the topics prescribed by the SRA for MCQs (Click here if you have not read it already :(((

Here is my version of the subject covered under Part A of Day 1 Outcomes:


A1 - English Legal System

A2 - Constitutional & Administrative Law
A3 - Solicitors' Accounts and Professional Conduct
A4 - Business, Tax and Financial Services Law
A5 - Contract law
A6 - Tort Law
A7 - Criminal law
A8 - Land law
A9 - Equity and Trust Law
A10 - Human Rights Law
A11 - Company Law

Isn't it simple and straight forward??? The books I have bought (which you can find in the Resource page) indeed cover all these areas.

1 - Introduction to Human Rights

Source - Unlocking Human Rights

Work in Progress

1 - Introduction to Company Law

Source - Company Law by Dignam and Lowry

Work in Progress

1 - Accounting Principles

Source - Accounts for Solicitors by Lesley King, CLP Publication

Work in Progress

1 - Partnerships

Source - Business Law by Slorach and Ellis, OUP Publications

Work in progress

1 - Introduction to English Legal System

Source - English Legal System by Ward and Akhtar

Work in progress!!!

9 - Tresspass to Land

Source: Unlocking Torts

Following is the summary of this chapter:

1) Trespass - Ingredients: (a) direct (b) physical and (c) unlawful interference (d) Actionable per se

2) Meaning of land for this purpose

3) Parties to the action

4) Actions amounting to trespass - (a) airspace (b) highways (c) Trespass ab initio

5) Defences - (a) Lawful entry (b) Necessity (c) Consent

6) Remedies - (a) Damages (b) Injunction (c) Rentry (d) Recovery of land

Friday 15 April 2011

8 - Torts Concerning Land: Occupiers Liability and Premises

Source: Unlocking Torts

Following is the summary of this chapter:

1) Occupiers Liability is covered under two Act: (a) Occupiers Liability Act 1957 in case of lawful visitors and (b) Occupiers Liability Act 1984 in case of other than lawful visitors

2) Occupiers Liability Act 1957 - (a) Common duty of care owed to all lawful visitors / licensees - reasonable man test applicable, extra duty towards children (b) No liability is the work is entrusted to a reputable contractor; can avoid liability by erecting appropriate warnings, exclusions, etc; defences of consent and contributory negligence apply

3) Occupiers Liability Act 1984 - (a) Duty of common humanity (limited duty to trespasser) (b) Inroduced to mitigate the harshness of common law towards the tresspassers

4) Defective Premises Act 1972 - applicable when the landlord continues to retail the repair obligation

3, 4, 5, 6 & 7 - Tort of Negligence

Source: Unlocking Torts

Negligence is probably the most important of all torts (and that is why there are 5 chapter dedicated for this tort). Following is the summary of chapters 3, 4, 5, 6 & 7:

1)  Negligence and its ingredients - (a) Duty of care (b) Breach of duty and consequent damages (c) Causation and Remoteness

2) Duty of care - (a) Donoghue v Steveneson (neighbour principle) (b) two part test in Anns case - proximity+policy consideration (c) 3 part test in Caparo's case - foreseeability+proximity+just and reasonable (d) see numerous cases involving policy considerations (3rd test in Caparo)

3) Breach of duty and consequent damages- (a) Blyth's case - reasonable man test to determine standard of case (b) Factors to be taken into consideration - foreseeability, magnitude, "thin skull rule", social utility act, practicability of precautions (c) different types of defendant - Children, Disabled, Motorists, Sportsmen, People lacking specialist skill, People using equipments (d) Std of care for experts and professionals - Bolam test (here lies the answer to the question 5 of Kaplan's sample questions) approved by HL in the case of Sidaway e) See the criticisms of Bolam test (because it is considered as subjective test instead of objective test and how this test was not applied in Bolitho's case) f) See how no-fault liability works in New Zealand

4) Causation and remoteness - (a) 'but for' test (b) Novus actus interveniens - breaking the chain of causation, 3 types : (i) caused by the claimant (ii) caused by nature (iii) caused by 3rd party (c) circumstances when NAI should be ignored (d) Remoteness of damages

5) Proving negligence - (a) Res ipsa loquitur (b) strict liability

6) Negligence defences - (a) Volunti non fit injuria (b) Contributory negligence

7) Novel duty situations - (a) Nervous shock (b) Pure economic loss (c) Negligent misstatement (d) Liability for omission

There are 100s of case laws in these chapter which I have not covered.

2 - Tresspass to the person

Source: Unlocking Torts

Following is the summary of this chapter:

1) Introduction - Understand the legal meaning of a) direct b) foreseeable c) injury d) intentional e) actionable per se

2) Components of tort - (a) Assault (b) Battery (c) False imprisonment

3) Assault - Ingredients: (a) Direct and intentional (b) Conduct (c) Reasonable fear; Defences: (a) Lawful authority - see s63 of Mental Health Act 1983 (b) Consent - see the important case of Ms B v NHS Hospital Trust and Airedale NHS Trust (c) Necessity (d) Parental authority (e) Self defence

4) Battery - Ingredients: (a) Intention (b) Direct - see the case of Nash and Innes(c) Touching - see the case of R v Brown; Defences: same as assault

5) False Imprisonment - Ingredients: (a) Restraint - see the Meering and Murray case (b) Intention is not required (so strict liability tort - see the case of R v Brockhill Prison); Defences: (a) Reasonable condition for release (b) Lawful arrest (c) Medical purpose

6) Intentional indirect harm and protection from harassment - Protection from Harassment Act 1997

Thursday 14 April 2011

14 - Adverse Possession

Source: Unlocking Land Law

Following is the summary of this chapter:

1) Meaning – s15 of the Limitation Act

2) Essential requirement of adverse possession – (a) Factual possession (b) intention to posses (c) sufficient length of time

3) Factual possession – (a) Claimant should exclude all others – see Powell’s case (b) for an unbroken period of time (c) he should have openly exercised (d) adverse to the paper title owner – see the case of Pye v Graham and contrast with BP Properties (interesting contrast!!) (e) The doctrine of implied license and changes brought in the Limitation Act to overturn it

4) Intention to possess – See various acts which discloses (or fails to disclose) intention to possess

5) Possession for a sufficient length of time – (a) The Limitation Act (b) Changes brought by Land Registration Act 2002 which effectively abolishes AP for registered land – see the new process / steps prescribed by this Act (see the table given in the book)

6) Adverse possession in tenancies – see how it operates in case of trusts (!!)

7) Nature of adverse possession – see how it differs in case of registered and unregistered land

8) Recovery of possession by the paper title owner

9) Adverse possession and Human Rights Act

QLTS Preparation

I believe that the international students should first understand how students go about becoming solicitors under the domestic route before thinking of QLTS, because you are expected to have the same knowledge and skill level of a local solicitor who has just qualified (remember "Day-1 Outcomes"). Broadly, they undergo 3 stages: (a) Academic stage (b) Legal Practice Course & (c) Training contract. Click here to know more. But, like elsewhere, they acquire skills and give exams in stages but you are being assessed in all the areas in one go :(

With this understanding, you should be able to assess the difficulty level of QLTS assessments :(( While the SRA may have a case for setting such high standards, international students are bound to find this difficult. And, if you are looking for a short-cut, cake-walk, open-book style of exam like QLTT, the earlier avatar of QLTS, then think twice before you jump...! :((( Further, if you are not from a common law jurisdiction or experienced enough, then think 100 times...!! :((((((

Dont think I am scaring you, but that's how QLTS appears when compared to QLTT. Be that as it may, being an English solicitor has its own merits which may be worth all the grind (some light at the end of the tunnel ??? :) I will continue on this in my next post. Come back for updates...

Tuesday 12 April 2011

QLTS and MCQ

Lawyers will know that it is just not enough reading the law but applying it in a given context is all the more important. Take, for instance, the question No.1 of the sample MCQs given by Kaplan. It seems tricky and the correct answer is E because the primary legislation can expressly disapply HRA in which case secondary legislation will become valid (That is what parliamentary supremacy is all about!).

So, I believe that one should,  in addition to plain reading of the law, keep raising and answering questions during QLTS preparation :(( But it is easier said than done and therefore there are some Q&A books available in the market :)) Click here for details.

I have not bought any because my shelves are already full (!!), but you may find them useful....

Saturday 9 April 2011

16 - Breach of Trust

Source - Unlocking Trusts

This is another important chapter under Trust Law. Following is it summary:
1) Breach of trust and measure of liability - Based on the restitution principle. See how it works in the case unauthorized investment, failure to dispose off unauthorized investments, improper sale of authorized investment, trustees making profit, tax deductibility and interest
2) Contribution and indemnity between trustees - Joint and several liability, contribution under Civil Liability (Contribution) Act, see how indemnity it works in case of advice from a solicitor, the rule of Chillingworth v Chambers

3) Defences to an action of breach of trust - (a) Knowledge and consent of beneficiaries (b) Impounding the interest of beneficiaries (c) Relief u/s 61 of Trustees Act (d) Limitations and latches (equity aids the vigilant and not the indolent)

4) Proprietary remedy - Tracing (a) under common law (b) under equity (Watch out that there many cases and principles here). Also see limitations to tracing.

15 - Variation of Trusts

Source - Unlocking Trusts

Following is the summary of this chapter:
 
1) Variation of Management / Administration - (a) Rule of Saunders v Vautier (b) Inherent jurisdiction of courts (c) s 57 of Trustee Act 1925

2) Variation of beneficial interest - (a) Rule of Saunders v Vautie (b) s 53 of TA 1925, (c) s 64 of Settled Lad Act (d) ss25-25 of Matrimonial Causes Act (e) s96 of Mental Health Act  (f) Inherent Jurisdiction (g) Variation of Trust Act 1958 - (i) this Act reverses HL's decision in Chapman v Chapman (ii) see the distinction between variation and resettlement (iii) Intention of settlor, though not a overriding factor, should be considered (iv) other factors to be considered

14 - Duties and Powers of Trustees

Source - Unlocking Trusts

This is another important chapter. The answer to question No. 6 of the sample questions given by Kaplan lies here. Following is the summary of this chapter:
 
1) General Duties of Trustees - (a) Common law duties (b) Duty under Trustee Act 2000  - see the subjective test and objective test

2) Duty to act unanimously
 
3) Duty to act personally - (a) Delegation is possble subject to exception under part IV of the Trustees Act 2000 [s 11(1) and 11(3)] (b) s 25 of Trustee Act 1925 as amended by Trustee Delegation Act 1999 which individual delegation by PoA (c) s 9 of TOLATA which permits delegation by PoA to beneficiaries in respect of land

4) Exclusion clauses
 
5) Duty of provide acccounts and information

6) Duty to distribute to the correct beneficiaries 
 
7) Duty not to make profits from the trust

8) Powers of investment - (a) express power (b) statutory power u/s 3 of Trustees Act (note about investment powers; they can invest in land only in the UK)
 
9) The right of beneficiaries to occupy land

10) Power of maintenance and advancement - (a) Express power (b) Inherent power (to be exercised by court) (c) Statutory power (can be exercised by Trustees)
 
11) Power to give receipt

12) Power to partition land

Friday 8 April 2011

13 - Appointment, Retirement and Removal of Trustees

Source - Unlocking Trusts

Following is the summary of this chapter:

1) Appointment and creation of new trust - Inter vivos (Rule is is no trustee exists, then the trust fails. If some exist, then the trust is valid), will (Rule is is no trustee exists, then the court appoints)

2) Appointment and continuation of the trust - The appointment should be made in the following order: (a) By express power (b) By general statutory power (s26(1) and 26(6) of Trustees Act 1925 (c) As per the direction of the beneficiary (s19-21 of TOLATA) (d) By court (s 41 of Trustee Act)

3) Retirement - As per / by (a) Trust instrument (b) General statutory power (s36(1) and 39 of Trustee Act (c) Consent of beneficiaries (Saunders v Vautier principle) (d) Direction of the beneficiary (s19-21 of TOLATA) (d) Court (s 41 of Trustee Act)

4) Removal -  As per / by (a) Trust instrument (b) General statutory power (s36(1) of Trustee Act (c) Direction of the beneficiary (s19-21 of TOLATA) (d) Court u/s 41 of Trustee Act and under inherent jurisdiction 

12 - Charitable trusts

Source - Unlocking Trusts

Work in Progress

11 - Private purpose trusts

Source - Unlocking Trusts

Here is the summary of this chapter:

1) Introduction - Trust for certain "private purpose" instead of a set of individuals. See the principle laid in Astor's case

2) Valid of PPT - They are void for: (a) Lack of beneficiary principle (b) Uncertainty of objects (c) Infringement of perpetuity rule

3) Exceptions - PPT for (a) maintainence of animals (b) Construction of memorial / monument (c) Saying of masses (d) See the Denley principle where though general purpose if found to be for the benefit of certain individuals was held valid

4) Gift unincorporated associations - (a) Void if it is for the promotion of a purpose (b) Valid if it is a (i) Trust for present members (ii) Gift to members. This may be x) Gift to present members as joint tenants xx) Gift to members as accretion to funds xxx) Gift to present and future members. See the Neville's case...

10 - Secret trusts and mutual wills

Source - Unlocking Trusts

A summary of this chapter is given below:

1) Introduction - (a) 2 types: Fully secret trust & Half secret trust (b) Trust comes into play outside the Wills Act 1837 (see the case of Young) (c) Basis of enforcement - Equity will not allow statute to be used a fraud

2) Requirement of Fully Secret Trust - (a) Communication to and acceptance by the legatee (trustee) during the testator's lifetime, whether before after the will (b) See what happens if there is no agreement (The case of Wallgrave) and is the terms of trust are not communicated (the case of Boyes)

3) Requirement of Half Secret Trust - (a)There should be mention of the trust in the will itself(b)Contrast this kind of trust with the case of Boyes (c) Communication should before the will not after (d) Trustee will never take the property beneficially (contract this with Wallgrave case)

4) Unresolved issues with secret trusts - (a) Standard of proof (b) Death of secret beneficiary (c) Death of secret trustee (d) Classification of secret trust - whether express or constructive

5) Mutual Wills - Similar wills made by 2 or more testators or joint wills on the death of the first to die + agreement intended to bind the survivor of the first to die

Legal Skills Book

Those of you from civil law countries planning to take QLTS may find the following book useful to kick start your learning and understanding of the English legal system. The skills you learn from this book is essential to take your studies to a higher level.

'Legal Skills' by Dr Emily Finch, Stefan Fafinski, Oxford University Publication

There are many other books falling in the same category. Click here for more details.

9 - Constructive Trusts

Source - Unlocking Trusts

Following is the summary of this chapter:


1) Introduction

2) Constructive trust and duty to account

3) Institutional and remedial constructive trusts

4) Recognized categories of constructive trusts - (a) Fiduciary making unauthorized profit (b) Benefit received by fiduciary (c) Bribes and secret profits (d) Trustee-directors remuneration (e) Occasions when trustee can receive remuneration (f) Purchase of trust properties (rule against self dealing see the case of Regal's case)

5) Contract for sale of land

6) Equity will not allow a statute to be used as on engine for fraud

7) Proprietary rights in the family home - (a) legal title in joint names (b) legal title in the name of one party (c) indirect contribution  - there should be either evidence of an agreement or conduct, see Cooke's case and Whipps case; also see s 237 of the Matrimonial Proceedings and Property Act 1970, (d) see how the properties should be valued between husband and wife (e) Order  for sale u/s14 of Trusts of Land and Appointment of Trustees Act

8) Strangers as constructive trustees - (a) Trustees de son tort (b) knowingly receiving and dealing in trust property for his own use ('notice' rule) (c) Alternatve liability ('knowledge' rule) (d) Dishonest assistance or accessory liability (e ) Royal Brunei v Tan Analysis

There are many interesting but complicate cases and legal principles emanating from the cases in this chapter.

8 - Resulting Trusts

Source - Unlocking Trusts

This chapter and the next are most confusing (and also important) chapters of trust law. Here is the summary of this chapter:


1) Introduction

2) Automatic resulting trusts - (a) when the settler retains the beneficial interest, see Vandervell case (b) when the purpose fails see Barclays Bank v Quistclose, Carreras Rothmans Lts v Freeman, (c) in case of surplus of funds see Abbott case, Gillinghand Bus case and contrast it with Andrews Trust case, (d) Dissolution of unincorporated associations - RT v contract theory

3) Presumed resulting trusts - (a) purchase in the name of other (b) voluntary transfer in the name of other and effect of s60(3) (c) RT v presumption of advancement and rebuttal of presumption (d) Intended unlawful activity and rebuttal of presumption

7 - Discretionary Trusts

Source - Unlocking Trusts

Here is the summary of this chapter:


1) Introduction - Fixed trusts (with interest in possession, discretionary trust (without interest in possession), exhaustive and non-exhaustive trusts

2) Period of accumulation - s164 of LPA and s13 of the Perpetuities and Accumulation Act 1964

3) Reasons for creating discretionary trust - contrast with administrative discretion 

4) Mere Powers and Trust Powers - see the subtle distinction burrough case v Weekes's settlement

5) Duties imposed on fiduciaries - see the distinction between exhaustive and non-exhaustive trusts

6)  Status of objects under discretionary trusts - objects 'individually' are not entitled for the benefit till discretion is exercised. That means they can only make the trustees to exercise their discretion. But, 'collectively' they can terminate the discretionary trust subject to certain conditions.

7) Protective trusts u/s 33 of Trustees Act 1925 - Determining / forfeiture events

Thursday 7 April 2011

Online resources

Many publishers have placed a repository of resources online. For example, the Oxford University Press has a section on law where you can find audio podcasts, question and answers, updates, review topics, glossary, etc. Some of them are available only for teaching faculty but some are available for students also. Click here to know more about this. Some of you may find this useful!!!

6 - Formalities for Creation of Express Trust

Source - Unlocking Trusts

Here is the summary of this chapter:


1) Declaration of a trust of land - Should be 'proved' by writing as per s 53(1)(b) of LPA, Exceptions: implied, resulting and constructive trusts

2) Dispositions of land - Should be 'made' in writing as per s 53(1)(c)of LPA, direction by beneficiary also validly constitutes second trust (Yerbury)

3) Overlap between s 53(1)(b) and s 53(1)(c)

4) Estoppel 

5) Self declaration of trust

5 - Equity will not Assist a Volunteer - Exceptions

Source - Unlocking Trusts

Here is the summary of this chapter:

1) The Rule of String v Bird - contrast this rule with the one laid down in Freeland ("future" gift), Wale (no continuous intention), James (rule extended to intestacy)

2) Donatio mortis causa - prerequisites: (a) contemplation of death (b) conditional on death (c) parting with the dominion, see relating to cash, cheque, land [is also possible], stock and shares

3) Proprietary estoppel - Old test 5 probanda: (a) plaintiff's mistake as to his legal right (b) plaintiff has expended money (c) defendant's existence of right inconsistent with plaintiff's right (d) defendant must know plaintiff's mistake (e) defendant must have encouraged plaintiff to spend money; modern test: unconscionability

4 - Constitution of an Express Trust

Source - Unlocking Trusts

Here is the summary of this chapter of this book:

1) Introduction - Two methods: Self declaration and transfer of property to the trustees

2) Transfer of property to the trustees - Rule of Milroy v Lord, read the case of Rose and contrast it with the case of Fry, also see the case of Pennington

3) Self-declaration  - No self declaration following imperfect transfer, the settlor may expressly adopt both modes of creation, multiple trustees also possible (see the rule of Choithram which says failure of transfer of property to one of the trustees is not fatal),

4) No trust of future property - see what happens in case of trust in choses in action by virtue of Fletcher v Fletcher

5) Effect of perfect and imperfect trusts - Contracts (Rights of Third Parties) Act

3 - The Three Certainties

Source - Unlocking Trusts

Here is the summary of the 3rd chapter of this book:

1) 3 Certainties - Intention, subject matter and objects of a trust

2) Intention - To create a trust. Equity looks at the intent rather than the form. Intention to create a trust is different from intention to benefit. Distinction between creation of trusts orally and 'loose talk' (see the case of Jone v Lock where it was held that trust was not created and contrast it with Paul and Constance), 'precatory words' (see the case of Adams and Kensigton and contrast it with Comiskey), effect of uncertainty of intention

3) Subject matter - As regards trust properties and beneficiaries (observe the distinction and see the case of Boyce v Boyce),

4) Objects - See how it varies between express trust and discretionary trust (see the case of IRC and contrast it with OT computers), list test against ascertainability test, is or is not test, any given postulant test (see the rule laid down in the case of McPhill), limitations to McPhail's case, also see various approaches to McPhail's case

Wednesday 6 April 2011

2 - Introduction to Trust Law - Part 2

Source - Unlocking Trusts

Here is the summary of the second chapter of this book:

1) Concept of trust - Recognition of Trusts Act, Hague Convention on Recognition of Trusts

2) Characteristics of a trust - Separation of legal and equitable interest, Sub-trust, inter vivos or on death, position of each party in a trust particularly bonafide transferee of the legal estate for value without consideration (see MCC Proceeds v Lehman Bros)

3) Classification of trusts - private and public, fixed and discretionary, express, resulting, constructive, statutory trusts

4) Reasons for creation of trusts

1 - Introduction to Trust Law - Part 1

Source - Unlocking Trusts

Presence of trust is unique to common law jurisdictions. Most civilian countries do not have the concept trusts. Here is the summary of the first chapter of this book.

1) Introduction to Equity - Historical setting

2) Contribution to Equity from Chancery

3) Nineteenth Century Reforms - Common Law Procedure Act, Chancery Amendment Act, Judicature Acts

4) Maxims of Equity - Click here for maxims of equity

13 - Leases

Source: Unlocking Land Law

This is another important chapters in this book. Following is its summary:

1) Lease and its characteristics - 3 characteristics suggested in Street v Mountford viz: (a) exclisive possession - see 5 instances where exclusive possession doesn't exists and 4 cases where it exists (b) determinate period - see the case of Ashburn and contrast with Prudential Assurance case which is the current law. Also see how monthly tenancies escapes this rule (c) for a rent or other consideration - see the rule of Ashburn Anstalt
 
2) The distinction between a lease and license 
 
3) Types of lease - (a) Fixed term (can be informal if less that 3 years, in writing for more than 3 years, registration if more than 7 years), (b) periodic, (c) at will, (d) at sufferance, (e) for life (as per s149, it takes the form of 90 years), (f) perpetually renewable (As per s145, it takes the form of 2000 years lease), (g) by estoppel (see the case of Rruton v London & Quadrant
 
4) The creation of lease - (a) < 3 years (b) > 3 years (c) equitable lease and rule of Walsh v Lonsdale (This rule is important)
 
5) The terms in a lease - (a) Covenants as to quite enjoyment, fit for purpose (? Landlord and Tenants Act), implied covenants
 
6) Determination of lease - various ways of determining a lease
 
7) Remedies for the parties - (a) Distress (b) Forfeiture - procedure for landlord's relief against tenant (s210 of Common Law Procedure Act, Eviction Act, Commonhold and Leasehold Reform Act, s146 of Law of Property Act, Leasehold Property Repaid Act), tenant's relief against landlord (s212 of Common Law Procedure Act and s138 of the County Court Act), (c) Specific performance (d) Injunction (e) Damages
 
8) Enforceability of covenants against 3rd Parties - concept of privity estate and privity of contract, The Landlord and Tenant (Covenants) Act 1995

12 - Mortgages

Source: Unlocking Land Law

This is probably one of the most important chapters in this book. Following is its summary:

1) Mortgage meaning - See the difference between mortgage and charge, Development of M at law and equity

2) The creation of mortgages - pre 1925, post 1925 and post 2002, methods of creation of equitable mortgage ie contract method (s2 of LP (MP) Act), deposit of title method and equitable interest method (s25 of LPA), creation of equitable charge

3) Protection of the mortgagOR - (a) equity of redemption (b) rule against undue influence - see the case of Barclays Bank v Obrien and Royal Bank of Scotland v Etridge and oppression - see the case of  (c) no collateral advantage (d) Consumer Credit Act

4) Rights of the mortgagEE - (a) to sue (b) to possession - see s36 of Administration of Justice Act (c) power of sale - see s103 of LPA (d) to appoint a receiver (e) to foreclosure

5) Priority of mortgages

11 - Restrictive Covenants

Source: Unlocking Land Law

Following is the summary of this chapter:

1) The nature of restrictive covenant - Rules with regard to enforceability against the original party v third party, under law v equity, positive v negative covenant

2) Covenant at law - Enforcement of covenant under special circumstances (s56 and 136 of LPA, C (R of TP) Act), passing of the benefit under law ie purchasers from the covenantEE (s78 of LPA touch and concern rule, see the rights attaching to the land / rights running with the land), passing of burden at law ie purchasers from the covenantOR (generally not possible: see the rule of Austerberry case), methods by which Austerberry rule can be avoided (indemnity, long lease, rule of mutual benefit and burden laid down in Halsall v Brizell, right of re-entry, rent charge)

3) Covenants at equity - Passing of benefit under equity, methods are: annexation (express, implied, statutory - see the arguments in favour and against Federated Home case), assignment (s136), building scheme, passing of burden under equity, see the rule laid down on Tulk v Moxhay (4 rule principle)

4) Breach of covenants and remedies

5) Discharge and modification of covenants - S84 of LPA

6) Proposal for reform

Tuesday 5 April 2011

5 - Legislative Supremacy

Source: Core Text on Constitutional and Administrative Law

This is important in the UK constitutional law and there are a number of cases laws (and so scope for setting MCQ!). A summary of this chapter is given below:

1) Parliament's legislating power -Understand the historical context and compare it with present day context. Remember the rules viz: Supremacy, Entrenchment, Implied Repeal and Enrolled Rule

2) Limitation - Scope and subject matter (HRA), manner and form, territorial, membership of EU (ECA)

3) Interpretation of a statutes in the light of HRS and ECA (dis-application rule, removal of implied repeal and retention of  express repeal), difference between constitutional statutes and normal statutes

4) Cases to ponder: Mortensen v Peters (supremacy rule), Vauxhall Estate case (implied repeal rule), Pickin v British Railway Board (enrolled Act rule), Belliger's case (declaration of incompatibility), R v Lambert (presumption against retrospective effect of HRA, contract this with Kansal's case)

Answer to the question 1 of the sample questions given by Kaplan lies here.

4 - Prerogative and Statute

Source: Core Text on Constitutional and Administrative Law

A summary of this chapter is given below:

1) Royal Prerogative - History and the present context (it is issued in the name of the crown by the executive), difference between Dicey and Blackstone test

2) Interaction between royal prerogative, statutes and courts - see Burma Oil Case, GCHQ case (where it was held that RP can be reviewed by the court. Further see the limitations laid down in Blackburn etc), views of Billings and Pontin

3) See the list of RPs including order required for a Bill to become an Act (answer to the question 8 of the sample questions given by Kaplan lies here)

4) Scope for reform

3 - Rule of Law

Source: Core Text on Constitutional and Administrative Law

A summary of this chapter is given below:

1) Rule of of Law as per Raz - 8 principles have been laid down

2) Rule of Law as per Decey - 3 principles have been laid down

3) Rule of Law and ECHR  - eg article 7

See this interesting case: R v Home Office about the contempt of court; Entick v Carrington

QLTS - Impact Assessment

If you are interested in understanding the background to and transition from QLTT to the present QLTS regulations, then read this document:

http://www.legalservicesboard.org.uk/what_we_do/regulation/pdf/full_impact_assessment_30_3_10.pdf

2 - Separation of Powers

Source: Core Text Series on Constitutional and Administrative Law

The summary of this chapter is as under:

1) Meaning and importance of separation powers - L'Esprit des Lois, is there a separation of powers in the UK? (strict answer is No because there are significant overlaps particularly between legislature and executive)

2) Recent reforms made in the UK including the role of lord Chancellor and setting up of the Supreme Court

Contrast the position in the UK with other countries particularly the US in order to understand the real dimension of this concept.

10 - Easement

Source: Unlocking Land Law

Following is the summary of this chapter:

1) Characteristics of easement - (a) Dominant and servient tenement, (b) right must be for the benefit of the land (not merely a personal right. Contemplate this rule from the perspective of (i) business use (ii) recreational use (iii) increased use), (c) DT and ST should be owned by different persons, (d) easement must be capable of granting (examine this from the perspective of (i) capability of the parties (ii) right must be definite and (iii) it must be in the nature of easement. See the difference between +ve and -ve right. Fencing can be an easement Lawrence v Jenkins)

2) Easement compared with other rights - Profits a pendre, license, restrictive covenants, public rights, natural rights

3) General principles of easement - (a) Must not impose positive burden on ST (b) must not exclude reasonable use of ST see the case of Batchelor and contrast with Hair

4) Grant of easement - (a) Express, (b) Implied (which can be acquired out of necessity - The Access to Neighboring Land Act, intended easement, rule of Wheeldon v Burrows, s 62 of LPA), (c) Prescription (which can be acquired out of common law, doctrine of lost modern grant, the Prescription Act)

5) Legal and Equitable Easement

6) Extinguishment of easements

7) Changes made by Land Registration Act -  Contrast the difference between legal and equitable

Monday 4 April 2011

Training Providers

Those of you who are interested in getting proper training from a school, there are a number of options. But I think QLTS School was the first one which started offering tailored preparation course for the exams. If you are interested in knowing more, click here and here. You can also watch their video presentation below:



Apart from QLTS School, you can check out BPP, CLT, etc. who are all in the same business, but may not have started tailored courses as yet.

As an alternative to QLTS training, you can also undertake training for GDL and/or LPC which achieves the same purpose. However, this is going to be a long affair, but may be useful for those from civil law background.

But, I am not taking training from any school. I am banking only on the books!!

9 - Trusts of Land

Source: Unlocking Land Law

This chapter has some connection to chapter 5 and 8. The summary of this chapter is as under:

1) Old law - Two types of trusts viz (a) Strict settlement (under Settled Land Act) which gives effect to 'successive' interest; tenant for life takes managerial role while trustees only supervisory, overreaching is possible (b) Trust for sale (under LPA) which gives effect to 'concurrent' interest is for 'sale' as the name goes, TS will be implied in case of JT, all CTs are equitable only which takes effect behind TS, doctrine of conversion is applicable

2) New law - Trusts of Land and Appointment of Trustees Act - Earlier SS and TS have been combined into Trust of Land, SS and TS have been abolished in so far as new trusts are concerned (that means old settlements will be valid), TL covers both successive and concurrent ownerships, doctrine of conversion has also been abolished

3) Powers and duties of trustees - Please note that power of trustees cannot be excluded and trustees should exercise due care in delegation (Trustees Act 2000), right to appoint and remove trustees, right o make application u/s 14 to the court to resolve disputes

4) Rights of beneficiaries - right to occupy (but trustees can exclude this right), right to be consulted of sale, right to require that the consents from them be obtained, right to appoint and remove trustees, right o make application u/s 14 to the court to resolve disputes

5) Protection of purchaser - overreaching rule, conditions necessary for overreaching, equitable interest must be capable for overreaching (see the distinction between 'general burden' v 'real burden', effect of s16 of TOLATA (applicability of good faith for overreaching principle)

8 - Co-ownership

Source: Unlocking Land Law

The answer to question No 7 of sample set of questions provided Kaplan lies in this chapter. After reading this chapter, you should be able to have a grip over the following:

1) Types of co-ownership - joint tenancy and tenancy in common, the underlying law in each of these two

2) Joint tenancy - 4 unities required (possession, interest, title and time), rule on survivorship, rule on severance (see Lord Denning's and Lord Russell's views in Bedson v Bedson)

3) Tenancy in common - only common possession required

4) Creation of co-ownership - Legal estate can exist only in JT and it annot be severed (s1(6)  and 36(2) of LPA) and maximum 4 JTs, equitable ownership can exist either in TC or JT, solving a question as to JT or TC, leading case is Malayan Credit Ltd (Kaplan's sample question can be answered from this case)

5) Method of severance of JT - (a) by written notice, see the distinction between s 196(3) and (4) for the purpose of s36(2), see the leading cases Kinch v Bullard, Harris v Goddard, (b) at common law (by conduct, mutual agreement, mutual conduct), mind it the will will not severe JT because will can be changed anytime, see the rule in Burgess v Rawnsley (c) by operation of law

6) The right of co-owners in land  - rights of occupation, right to claim rent, no right to claim for repairs (Leigh v Dickenson)

7) Termination of co-ownership - transfer of property, partition, release, vesting in sole owner (see the distinction between registered and unregistered land)

7 - Proprietary Estoppel

Source - Unlocking Land Law

Before you read this chapter, briefly review proprietary license in chapter 6 and constructive trust in chapter 5. After  reading this chapter, one should have good understanding of the following:

1) Difference between proprietary estoppel and constructive trust - one is based on representation and other is based o common intention

2) Elements of PE - representation, reliance and detriment

3) Representation can be be positive or mere silence, can be made by self or through an agent. See the conflict between Taylor v Dickens and Gillett v Holt with regard to representation through will

4) Reliance (change of position rule) and its forms

5) Detrimental reliance and its form (eg, financial expense, personal disadvantage / suffering), see how equity played a role in Sledmore v Dalby

6) Remedies offered - share in the legal estate (rarely done), right to occupy for life, financial compensation, and other remedies. Also see the impact of prejudgment misconduct-before and after crystallization

7) Loss of right under PE

8) PE is capable for binding the successors / third parties (jus in rem) - see s116 of LRA

9) PE can generally be overreached but some cannot (eg easement, lease). With regard to unregistered land, this is still subject to notice

There is a tutorial activity at the end of the chapter which is useful.

6 - Licenses

Source: Unlocking Land Law

I think this is relatively easy to understand. Following is the summary:

1) There are 4 different types of license viz a) bare license b) license coupled with interest c) contractual license d0 estoppel license. One should be clear on i) how they are created ii) terminated iii) their effect on 3rd parties

2) Bare license can created informally or may be implied, it can be terminated at will, and it cannot bind a 3rd party

3) License coupled with interest comes into existence by its nature (eg profit a prendre requires a deed), cannot be revoked until interest is revoked, and binds a 3rd party. Hint: right attaches to the land instead of person

4) Contractual license is created formally (where formalities required) or informally, can be terminated as per the contract, and cannot bind 3rd party unless there is a constructive trust

5) Estoppel license can be informal also (but need 3 elements viz promise, reliance and detriment), can be terminated as per the terms of license, can be binding on 3rd party depending on i) EL is capable of registration in case registered land ii) subject to doctrine of notice in case of unregistered land

There is a tutorial activity in the end which is useful to have further clarity.

5 - Equitable Rights in Land

Source: Unlocking Land Law

I think these concepts will repeat in Unlocking Trusts. Following is the key summary:

1) The nature equitable rights in land - remember that though the trust in land is not in writing, the trust will not become void. Its enforceability depends on the claims of the other parties. However implied, resulting, constructive trusts need not be in writing

2) Resulting trusts, presumed intention and rebuttal of presumption of resulting trust (eg gift, advancement, improper motive), the effect of s60(3) of LPA, types of contributions which can give rise to resulting trusts (there is a good summary table in the book and I think this is important), principle laid in Burns v Burn

3) Constructive trusts, "unconscionable" test, elements of constructive trusts (ie common intention which could be express or implied- see the rule in Rosset and contrast with Eves), detrimental reliance (see the objective test laid in Wayling)

4) Quantification of contribution both in RT and CT

There are a number of areas where one could frame MCQ from this chapter.

Sunday 3 April 2011

4 - Transfer and Creation of Property Interest

Source: Unlocking Land Law

This chapter deals with actual process and intricacies involved in transfer of interest. I suppose this should be treated as introduction to the book - CLP's Property Law and Practice. After reading this chapter, one should have command over the following:

1) Stage involved in a property transfer - Pre-contract, Exchange of contract and transfer

2) Pre-contract stage - Gaszumping and Gazundering, sellers pack (I think this is no longer required now), lock out agreement

3) Exchange of contract - essential requirements, single contract v collateral contract, exception to the essential requirements (ie lease for less than 3 years, contracts in the course of public auction, collateral contracts, proprietary estoppel, enforcement of contract

4) Transfer - Transfer of unregistered land v registered (this difference appears to be important)

5) E-conveyancing

3 - Registered Land

Source: Unlocking Land Law

Land Law is generally considered as difficult subject and you will experience that first hand in this chapter. After reading this chapter, you should be able to have control over the following aspects:

1) Key features of registration system in the UK - mirror principle, insurance principle and curtain principle. These principles will get expanded further in this chapter

2) The Land Registry and the Registers - Property register, Charges register and Proprietor register

3) Types of rights that can exist over land - (a) legal estates and interests (b) registrable encumbrances (c) overriding interests

4) Protection of legal estates and interests (by registration), first registration (Part 2 Chapter 1 of LRA) and subsequent registration (Part 3 of LRA), voluntary registration and event that go into it, compulsory registration and event that trigger it, events that do not require compulsory registration, effect of non registration

5) Protection of  registrable encumbrances through notices and restriction (Part 4 of LRA), caution against first registration (Part 2 Chapter 2 of LRA)

6) Protection of overriding interest without any registration (S 11, 29 and Schedule 1 & 3  LRA)

7) Alteration and indemnity by the Land Registry, e-conveyancing and its benefits

A thorough understanding of LRA is must in order to tackle this chapter.

2 - Land Law, Common Law and Equity

Source: Unlocking Land Law

This chapter gives a good foundation to the land law and its interaction with common law and equity. After reading this topic, one should have understanding of the following:

1) History of development of common law and equity (I think that’s how QBD and Chancery courts have come into being) and interaction between these two aspects

2) Development of trust, express trust, resulting trust and constructive trust (subtle difference between these two)

3) Difference between and type of legal estates, legal interests and equitable interests, rights in rem and rights in personam

4) Effect of equitable right on third parties – meaning of bonafide purchase for value – notice requirement and types of notice. I think this is one of the most important aspect. Your knowledge should be supported by the principles laid down in viz Wilkes v Spooner.

5) Overreaching – I think this is also important. The cases to note: Williams & Glyn’s Bank, City of London Building Society, State Bank of India v Sood

6) Types of equitable interests to be registered under the Land Charges Act (Class C, D and F are important), effective of registration, Matrimonial Homes Act. Note that the registration under LCA is against the owner of the property and not against the property (because it is equitable interest and not legal interest!!). Note the principle laid down in Midland Bank Trust. Also be careful of the rights which are incapable of being registered i.e. beneficiary under a trust of land.

It is now better to skim through this and this before proceeding to the next chapter.

Saturday 2 April 2011

Statute List - Litigation


It is said that lawyers need not remember every law, but he should know where to find the law. This is particularly true for tackling TLST because you will have access to legal resource in the exam. You should know where to find and apply the law appropriately for a given set of facts.

Following is a list of statutes relating to litigations I found in the text book.

1.      Civil Litigation
1.1.      Administration of Justice Act 1920, 1956, 1969, 1982, 1985
1.2.      Arbitration Act 1996
1.3.      Attachment of Earnings Act 1971
1.4.      Charging Orders Act 1979
1.5.      Civil Evidence Act 1972, 1995
1.6.      Civil Procedure Act 1997
1.7.      Civil Jurisprudence and Judgment Act 1982
1.8.      County Courts Act 1984
1.9.      Courts Act 2003
1.10.  Courts and Legal Services Act 1990
1.11.  Damages Act 1996
1.12.  Foreign Judgment (Reciprocal Enforcement) Act 1933
1.13.  Judgment Act 1838
1.14.  Occupiers Liability Act 1957, 1984
1.15.  Private International Law (MP) Act 1995
1.16.  Protection from Eviction Act 1977
1.17.  Protection from Harassment Act 1997
1.18.  Public Order Act 1986
1.19.  Road Safety Act 2006
1.20.  Road Traffic Act 1988
1.21.  Road Traffic (NHS Charges) Act 1998
1.22.  Road Traffic Offenders Act 1988
1.23.  Senior Courts Act 1981
1.24.  Social Security (Recovery o Benefits) Act 1997
1.25.  Tort (Interference with Goods) Act 1977
1.26.  Tribunal, Courts and Enforcement Act 2007

1.      Criminal Litigation
1.1.      Access of Justice Act 1999
1.2.      Bail Act 1976
1.3.      Coroners and Justice Act 2009
1.4.      Crime and Disorder Act 1998
1.5.      Crime and Security Act 2010
1.6.      Criminal Appeal Act 1968, 1995
1.7.      Criminal Damage Act 1971
1.8.      Criminal Evidence Act 1898
1.9.      Criminal Injuries and Compensation Act 1995
1.10.  Criminal Justice Act 1967, 1972, 1982, 1987, 1988, 2003
1.11.  Criminal Justice and Court Service Act 2000
1.12.  Criminal Justice and Immigration Act 2008
1.13.  Criminal Justice and Police Act 2001
1.14.  Criminal Justice and Public Order Act 1994
1.15.  Criminal Procedure Act 1865
1.16.  Criminal Procedure Attendance of Witness Act 1965
1.17.  Criminal Procedure and Investigation Act 1996
1.18.  Domestic Violence, Crime and Victims Act 2004
1.19.  Evidence Act 1851
1.20.  Homicide Act 1957
1.21.  Human Rights Act 1998
1.22.  Juries Act 1974
1.23.  Magistrates Courts Act 1980
1.24.  Offenses Against Person Act 1861
1.25.  Perjury Act 1911
1.26.  Police and Criminal Evidence Act 1984
1.27.  Police and Justice Act 2006
1.28.  Powers of Criminal Court (Sentencing) Act 2000
1.29.  Proceeds of Crime Act 2002
1.30.  Prosecution of Offences Act 1985
1.31.  Rehabilitation of Offenders Act 1974
1.32.  Serious Organized Crime and Police Act 2005
1.33.  Statutes of Fraud Act 1677
1.34.  Terrorism Act 2000
1.35.  Theft Act 1968
1.36.  Violent Crime Reduction Act 2006
1.37.  Youth Justice and Criminal Evidence Act 1999

Statute List - Business

It is said that lawyers need not remember every law, but he should know where to find the law. This is particularly true for tackling TLST because you will have access to legal resource in the exam. You should know where to find and apply the law appropriately for a given set of facts.

Following is a list of statutes relating to business law I found in the text book.

1.      Business
1.1.      Banking Act 1987
1.2.      Building Societies Act 1986
1.3.      Bank of England Act 1998
1.4.      Capital Allowances Act 2001
1.5.      Companies Act2006
1.6.      Company Directors Disqualification Act 1986
1.7.      Competition Act 1998
1.8.      Consumer Credit Act 1974
1.9.      Consumer Protection Act 1987
1.10.  Contracts (Rights of Third Parties) Act 1999
1.11.  Corporation Tax Act 2009, 2010
1.12.  Data Protection Act 1998
1.13.  Enterprise Act 2002
1.14.  Fatal Accidents Act 1976
1.15.  Financial Services and Markets Act 2000
1.16.  Health and Safety at Works Act 1974
1.17.  Health and Social Securities Act 2001, 1983
1.18.  Highways Act 1980
1.19.  Hire Purchase Act 1964
1.20.  Income and Corporation Taxes Act 1988
1.21.  Income Tax Act 2007
1.22.  Income Tax (Employment and Pensions) Act 2003
1.23.  Income Tax (Trading and Other Income) Act 2005
1.24.  Insolvency Act 1986, 1994
1.25.  Late Payment of Commercial Debts (Interest) Act 1998
1.26.  Legal Services Act 2007
1.27.  Limited Liability Partnership Act 2000
1.28.  Minors Contract Act 1987
1.29.  Misrepresentation Act 1967
1.30.  Partnership Act 1890
1.31.  Powers of Attorney Act 1971
1.32.  Sale of Goods Act 1979
1.33.  Sale of Goods (Implied Terms) Act 1973
1.34.  Sale and Supply of Goods Act 1994
1.35.  Solicitors Act 1974
1.36.  Supply of Goods and Services Act 1982
1.37.  Taxation of Chargeable Gains Act 1992
1.38.  Taxes Management Act 1970
1.39.  Town and Country Planning Act 1990
1.40.  Unfair Contract Terms Act 1977
1.41.  Value Added Tax Act 1994