ILEX Level 6 Single Subject Certificate ILEX Level 6 ... Unit Spec Handbook - 2011 Exams FINA… · Level 6 Single Subject Certificate, the ILEX Level 6 Professional Higher Diploma

Page 1 of 284 This specification is for 2011 examinations

UNIT SPECIFICATION HANDBOOK

ILEX Level 6 Single Subject Certificate ILEX Level 6 Professional Higher Diploma in Law and Practice ILEX Graduate ‘Fast-Track’ Diploma


Introduction This handbook contains the ILEX Level 6 unit specifications. These units are the building blocks of the following qualifications: ILEX Level 6 Single Subject Certificate, the ILEX Level 6 Professional Higher Diploma in Law and Practice and the ILEX Graduate ‘Fast-Track’ Diploma. This handbook should be read in conjunction with the Level 6 Qualifications Handbook which sets out the structure of the different Level 6 qualifications along with an explanation of the unit specifications. The unit handbook is divided into three sections as follows: Section 1: the Law Units Section 2: the Practice Units Section 3: the Professional Skills units


Section 1: The Law Units Unit Number Unit Title Page numbers Unit 1 Company and Partnership Law 4-16 Unit 2 Contract Law 17-30 Unit 3 Criminal Law 31-42 Unit 4 Employment Law 43-55 Unit 5 Equity and Trusts 56-73 Unit 6 European Union Law 74-85 Unit 7 Family Law 86-102 Unit 8 Immigration Law 103-115 Unit 9 Land Law 116-128 Unit 10 Landlord and Tenant Law 129-139 Unit 11 Planning Law 140-150 Unit 12 Public Law 151-161 Unit 13 Law of Tort 162-175 Unit 14 Law of Wills and Succession 176-191


Unit 1 Title:

Company and Partnership Law

Level:

6

Credit Value:

15

Learning outcomes The learner will:

Assessment criteria The learner can:

Knowledge, understanding and skills

1 Understand different forms of business media

1.1 Identify the principal types of business media

1.2 Summarise the formation of the principal

types of business media

1.1 Sole traders, Partnerships, Limited Partnerships, Limited Liability Partnerships (LLP) and Companies limited by shares (public and private)

1.2 Sole-trader: occurs where an individual

starts “trading”; no statutory formation process or system of registration; possible regulation of business name under the Companies Act 2006 (CA2006) s.1192; Partnership: governed by Partnership Act (PA) 1890; partners (at least 2) form partnership by starting in business together with a view to profit (s1-2 PA 1890); no statutory formation process or system of registration; no need to have written partnership agreement; possible regulation of business name under s.1192 CA 2006; Limited company: governed by CA2006; formed by successful registration of specified documentation and fee (CA 2006 Part 2 ss7-16) with Registrar of Companies


1.3 Analyse the advantages and

disadvantages of different business media

1.4 Apply an understanding of appropriate

business media to a given situation 1.5 Critically evaluate a given issue or

situation to predict probable legal implications

under approved name (CA 2006 Part 5 ss 53-85); Limited Liability Partnership (LLP): governed by Limited Liability Partnership (LLP) Act 2000; LLP formed by registration of specified documentation and fee with Registrar of Companies and under approved name (s1-3 LLP Act 2000 & Schedule)

1.3 Distinguishing between the sole trader,

partnership, limited liability partnership and company as business media, eg, in terms of forms of liability (limited liability, unlimited liability, joint and several liability), disclosure requirements; practical considerations, eg, nature, size and risk of business

1.4 Application of understanding to a complex

scenario 1.5 A reasoned opinion of likely legal

implications, including remedies and defences, where appropriate

2 Understand the principles of partnership law

2.1 Analyse the different types of partnership and the rights and responsibilities of partners

2.1 Understanding the differences between traditional partnerships, limited partnerships (Limited Partnership Act 1907) and limited liability partnerships (LLP Act 2000); traditional partnership: appropriate definition, eg, PA 1890; formation; the partnership agreement; joint and several liability; fiduciary nature of relationship; partners as agents; limited partnerships: Limited Partnership Act 1907; formation; distinguishing between general and “sleeping partners”; s4 at least 1 general


2.2 Explain how a partnership may be

terminated 2.3 Explain the effects of insolvency of

partners 2.4 Apply the law on the principles of

partnership to a given situation 2.5 Critically evaluate a given issue or


partner liable; limited liability partnership: LLP Act 2000; formation; limited liability; registration procedure; statutory control; liability, eg, contractual, to 3rd parties, for wrongful acts and omissions, misapplications of property; breach of trust

2.2 An explanation of: PA 1890; Hadlee v

Commissioner of Inland Revenue (1989); contractual grounds for dissolution; bankruptcy or death; the grounds upon which a partner may apply to the court; liability of outgoing and incoming partners; LLP Act 2000 transfer; winding up

2.3 An explanation of: PA 1890 joint and several

liability; Insolvent Partnerships Order 1994; Partnership Voluntary Arrangement; LP Act 1907, at least one partner unlimited; LLP Act 2000, limited liability

2.4 Application of the law to a complex scenario 2.5 A reasoned opinion of likely legal


3 Understand the underpinning concepts

of the company 3.1 Explain the concept of incorporation 3.2 Analyse the power to pierce the

corporate veil

3.1 Development of the company, eg, the company limited by shares and limited by guarantee; corporate personality; limited liability; the corporate veil, eg, Salomon (1897)

3.2 Piercing the veil by the Judiciary: Torts;

National interest, eg, Daimler (1916); Fraud, eg, Salomon (1897), Gilford Motors (1933);


3.3 Apply an understanding of the main

features of the company to a given situation

3.4 Critically evaluate a given issue or


Economic Entity (subsidiaries), eg, DHN (1976); Agency, eg, Smith, Stone & Knight (1939); Justice, eg, the views of Lord Denning; Adams v Cape Industries (1990); Creasey (1992); Ord v Bellhaven (1998); use of statutory powers, eg, s212 Insolvency Act (IA)1986




4 Understand the promotion and

formation of the company 4.1 Explain the role and duties of the promoter 4.2 Analyse the developments in companies

legislation with regard to the significance of pre-incorporation contracts

4.3 Explain the process of incorporation for

public and private companies

4.1 Definition: eg, Twycross v Grant (1876-77); duties; liabilities, eg, Erlanger v New Sombrero (1877-78)

4.2 Effects of pre-incorporation contracts for

promoters, the company and 3rd parties, eg, Kelner v Baxter (1866-67), Newbourne v Sensolid (1954); the effect of the EU Directive and s36C Companies Act 1985: Phonogram v Lane (1982); now s51 CA 2006.

4.3 Role of Registrar of Companies; Companies

House (CH) requirements; documentation, eg, constitution (Memorandum of Association (MA) & Articles of Association (AA)), statements; fees; electronic registration; certificate of incorporation; commencement of trading and borrowing; PLC trading certificate; effect of non-compliance; “off the shelf” companies


4.4 Apply an understanding of company

promotion and formation to a given situation






5 Understand the nature and purpose of

the company’s constitution 5.1 Explain the purpose and contents of the

memorandum of association 5.2 Explain the purpose and contents of

articles of association 5.3 Analyse the importance of the

constitution of the company to members 5.4 Analyse the developments in the doctrine

of ultra vires 5.5 Apply an understanding of the nature

and purpose of the company constitution

5.1 Definition; contents; objects clause; s8 CA2006; s18 CA 2006

5.2 Definition; contents; model articles etc 5.3 Possible contractual effect of s14 CA 1985

and insider/ outsider rights: ie, Salmon v Quinn (1909); Hickman v Kent & Romney Sheepbreeders (1915); Rayfield v Hands (1960); Beattie (1938); the theories of Wedderburn, Gregory and Greene; the effect of s33 CA 2006

5.4 An explanation of the effect of the objects

clause: ie, Ashbury Railway Carriage Co (1875), Cotman v Brougham (1918); Bell Houses (1966) Clause; the ultra vires doctrine and the developments because of s9 European Communities Act 1972; s35 CA 1985; now CA 2006 s33: unlimited objects unless specified in articles; s39 CA 2006 replaces s35 CA 1985 but refers to constitution not memorandum (relegated position s8 CA 2008); authority of directors


scenario


to a given situation 5.6 Critically evaluate a given issue or


5.6 A reasoned opinion of likely legal


6 Understand the principles of share

issue, capital and capital maintenance 6.1 Explain how and when shares may be

issued and allotted and the responsibilities and duties of those promoting an issue

6.2 Explain the rights and responsibilities

that attach to share ownership 6.3 Explain the process and restrictions on

the transfer and transmission of unlisted shares

6.1 Definitions of a share: Borland’s Trustee (1901); the statement of share capital, s9 CA 2006; the abolition of authorised share capital; types of capital: issued, paid up, called up capital; required disclosure to members, ss 31 and 32 CA 2006; directors’ rights to allot shares, s550, ss549 and 551 CA 2006; requirements: ordinary resolution; the power to alter share capital, s617; pre-emption rights, eg, Rayfield v Hands (1960); disapplication of pre-emption rights, s569 CA 2006

6.2 Types of shares, eg, ordinary, preference;

rights of shareholder, eg, to a dividend, to vote; liability, eg, to pay nominal value; class rights: defined, eg, Cumbrian Newspapers (1987), s629 CA 2006; variation of class rights, eg, Greenhalgh v Arderne Cinemas (1946), White v Bristol Aeroplane (1953), s630 CA 2006; articles of association and entrenchment, s22 CA 2006; possible s33 CA 2006; variation and protection of the minority: Foss v Harbottle (1843) and exceptions; unfair prejudice, s994 CA 2006; just and equitable winding up; s122 IA 1986

6.3 Re Smith & Fawcett (1942): discretion to

refuse to register; must give notice; s776 CA 2006; forged transfer of shares; transfer of shares involving a forged certificate


6.4 Explain the concept of and the

restrictions on insider dealing 6.5 Analyse the doctrine of capital

maintenance 6.6 Apply an understanding of the principles

of share issue, capital and capital maintenance to a given situation



6.4 Definition: “victimless crime”, eg, EC

Directive; Criminal Justice Act 1993 s52 definition; ss54-60 terms defined; s53 defences; s63 penalties; Market Abuse; Financial Services and Markets Act 2000 possible civil penalties; FSA; UK Listing Authority Model Code

6.5 Doctrine defined: eg, Trevor v Whitworth

(1887); reduction of capital in articles (Table A); procedure for private companies to reduce capital: Special Resolution and declaration of solvency; ss 642-644 CA 2006; dividends only from profits, eg, Bairstow v Queen’s Moat Houses plc (2001); companies purchase of own shares; giving of assistance and subsidiaries, eg, Heald v O’Connor (1971), Brady v Brady (1988); sale at discount: Ooregum Gold Mining Co (1892) and s542 CA 2006; purchase for non-cash consideration; duty of directors of PLC to call public meeting on serious loss of capital, s656 CA 2006; personal liability for loss




7 Understand how a company borrows

money 7.1 Explain the concept of the debenture and

differentiate between a fixed and floating charge

7.1 Definition: Levy v Abercorris (1888); fixed or floating charges: Re Panama (1869-70); Re Yorkshire Woolcombers (1904); Smith v Bridgend CBC (2002)


7.2 Analyse the benefits of the fixed and

floating charge to the company and debenture holder

7.3 Analyse the importance of the type of

charge and effect of registration on the priority of charges in a liquidation

7.4 Analyse the effectiveness of retention of

title clauses 7.5 Apply an understanding of how a

company borrows money to a given situation



7.2 Registration priority; what can cause

crystallisation; the categorisation of book debts as fixed or floating charges: ie, Siebe Gorman (1979); Re New Bullas (1994); Brumark (2000); Spectrum Plus (2005)

7.3 Effect on liquidation of fixed and floating

charges: ie, Re Automatic Bottlemakers (1926); Re Woodroffes (1986); the conclusiveness of certificate of registration: s869 CA 2006; Re CL Nye (1971); the avoidance of charges on a liquidation: s245 IA 1986; Power v Sharp Investments (1994)

7.4 Definition: the Romalpa clause (Aluminium

Industrie Vaasen v Romalpa Aluminium 1976); requirements: equitable ownership, Re Bond Worth Ltd (1980); identifiable, eg, Hendy Lennox (1948); undergone process, eg, Borden Ltd (1981)




8 Understand the long-term and day-to-

day management of the company 8.1 Explain the rules covering the convening

and conduct of general meetings

8.1 Definition of meeting, Sharp v Dawes (1876); the AGM and EGM; requirements for meetings: no requirement for private company AGM; notification requirement, Kaye v Croydon Tramways Co (1898); content and process: quorum; Articles and Model Articles; Ordinary and Special resolutions; elective and written resolutions;


8.2 Explain the rules governing board

meetings 8.3 Explain how directors may be appointed,

retained, remunerated and removed

informal resolutions, eg, Re Duomatic (1969); voting procedures: no longer unanimous; voting agreements; restrictions on voting; Table A; Court ordered s306 CA 2006; provisions in relation to quoted and publicly traded companies

8.2 Constitution; frequency; voting; quorum; GM

has no right to interfere with the management of the company by the directors, eg, Automatic Self-cleaning Filter Syndicate Co (1906)

8.3 Requirements, eg, number, age, natural, see

ss154, 155, 157 CA 2006; initial requirements in statement; appointment: under Articles, Article 17 of the 2009 Model Articles applicable to Private Companies and Article 20 of the 2009 Model Articles applicable to Public Companies by members’ resolution; restrictions on appointment: disqualification under Company Directors Disqualification Act 1986: bankrupt, eg, R v Brockley (1994); service contracts: generally, ss228-230 CA 2006; over 2 years need approval of members, ss188-189 CA 2006; termination and/or retirement of directors - art.18 of the 2009 Model Articles applicable to Private Companies, arts.21 and 22 of the 2009 Model Articles applicable to public companies; removal of director: s168 CA 2006 (old s303 CA 1985); weighted voting to protect position, Bushell v Faith (1970) clause; compensation for termination, Southern Foundries v Shirlaw (1940)


8.4 Analyse the roles and duties of the

different types of director and the impact of the statutory list of directors’ duties in CA 2006

8.5 Explain the provisions regulating

substantial property transactions (SPT) and loans to directors

8.6 Apply an understanding of the long-term

and day-to-day management of the company to a given situation


situation to predict probable legal

8.4 Definition of shadow director: Re Hydrodan

(Corby) Ltd (1994);s251 Insolvency Act 1986; s22(5) CDDA 1986; eg, Secretary of State for Trade and Industry v Deverell (2001); distinguishingexecutive and non-executive directors; the standard of care, ie, Re City Equitable (1925); Re D’Jan (1993); s214 IA 1986; s174 CA 2006; the fiduciary duties and duties of care and skill; Percival v Wright (1902), duty to company; the statutory duties: s170 and ss171-177 CA 2006; statutory factors to be considered; cannot exempt from liability by provision in articles etc, s232 CA 2006, but can insure directors, s.233 CA 2006; court may relieve a director of liability for breach in whole or in part if has acted honestly and court thinks just in circumstances, eg, Re Duomatic (1969); disqualification of directors: ss2-5 and 11 CDDA 1986; s178 breach of duty liability; s180 consent

8.5 Definition of SPT s190 CA 2006; approval by

members; voidable; liability to account, s195 CA 2006; exceptions, ss192-194 CA 2006; loans to directors, ss197-214 CA 2006; generally prohibited, s197 CA 2006; exceptions, ss204-209 CA 2006





implications. 9 Understand the principles of

reconstruction, merger and acquisition

9.1 Analyse the methods by which a reconstruction can be achieved

9.2 Explain the processes of merger and

acquisition 9.3 Apply an understanding of the principles

of reconstructions, mergers and acquisitions to a given situation



9.1 Alteration of objects; reduction of capital; purchase of own shares; variation of shareholder rights; re-registration

9.2 Definitions; private companies: articles; PLC:

offeror sends circular to shareholders; CA 2006 statutory authority to takeover panel; judicial review, eg, Datafin; City Code; directors’ duties in takeover




10 Understand the concepts of

insolvency and liquidation 10.1 Explain the company voluntary

arrangement (CVA) 10.2 Analyse the differences between

receivership, administrative receivership and administration

10.1 Definition of insolvency; CVA: IA 1986 as amended IA 2000; process; supervisor; proposal; meetings and approval; failure into administration; success into solvency; schemes of arrangement CA

10.2 Rescue regime; Enterprise Act 2002

Schedule B1; administrator appointment; purposes; receiver’s appointment; purposes; administrative receiver’s appointment; purposes; effects of appointment of each: role, powers and duties; avoidance powers; collection and distribution; the Enterprise Act 2002 and the removal of Crown priority; the introduction of “top-slicing”; the administrator’s duty of care and the costs of administration, eg, MC Bacon (1991)


10.3 Explain winding up 10.4 Analyse the avoidance provisions and

potential liability of company officers 10.5 Apply an understanding of the concepts

of insolvency and liquidation to a given situation



10.3 Creditors’ and members’ voluntary winding

up; process; resolutions; statements; appointment of liquidator; effect; priority of creditors; court winding up, s124 IA 1986

10.4 The avoidance of transactions at an

undervalue; s238 IA 1986; time limits; connected persons; burden of proof; the avoidance of preferences; s239 IA 1986; time limits; burden of proof; ‘desire to prefer’; extortionate credit transactions; s244 IA 1986; wrongful trading, s214 IA 1986; fraudulent trading; s213 IA 1986; Misfeasance; s212 IA 1986; the standing and burden of proof to establish these; also s349 CA 1985 provides that if the company name on the cheque is defective and it is not honoured, then the signing director may be personally liable; this has not been incorporated into or repealed by the CA 2006, therefore, the provision stands; defences, eg, Re Duomatic (1969); disqualification, CDDA 1986; the possible liability to account





Additional information about the unit Unit aim(s)

To accredit a broad and detailed understanding of Company and Partnership Law

Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards

Details of the relationship between the unit and other standards or curricula (if appropriate)

Na

Assessment requirements specified by a sector or regulatory body (if appropriate)

Na

Endorsement of the unit by a sector or other appropriate body (if required)

Na

Location of the unit within the subject/sector classification

15.5 Law and Legal Services

Name of the organisation submitting the unit ILEX (Institute of Legal Executives) Availability for use Available to all Awarding Bodies to award credit

(shared) Availability for delivery 1 September 2009


Unit 2 Title:

Contract Law

Level:

6

Credit Value:

15




1 Understand the general nature of the law of contract

1.1 Define a contract 1.2 Explain key characteristics of the nature of

contract

1.1 A contract is an agreement giving rise to obligations which are enforced or recognised by law

1.2 The social importance of contract; the

central position of agreement and its influence upon contract: eg, in formation and in the implying of terms; the absence of the requirement of formality in simple contracts; the formalities required in speciality contracts; judicial attitudes to the resolution of contractual disputes: eg, to certainty, to illegality and to performance and breach; concepts which underpin the subject: eg, privity; how contract differs from other forms of liability, eg, liability in tort and breach of trust

2 Understand the law on the

formation of contract 2.1 Explain the law on the fact of agreement

2.1 The law on formation: the requirement of agreement; the factual indicators of agreement – offer and acceptance; distinguishing unilateral from bilateral agreements; distinguishing offer from


2.2 Explain the law on how offers are terminated 2.3 Explain the rules of communication of offer,

acceptance, and revocation 2.4 Analyse the law on the formation of contract 2.5 Apply the law on the formation of contract to

a given situation

invitation to treat; where offer and acceptance have not been adequate to the task of finding agreement, eg, Clarke v Dunraven, The Satanita (1895); relevant case law: eg, Pharmaceutical Society of Great Britain v Boots Chemists (1952), Partridge v Crittenden (1968), Carlill v Carbolic Smoke Ball Co (1893)

2.2 An explanation of: acceptance, counter

offer, revocation, passage of time; relevant case law: eg, Hyde v Wrench (1840), Stevenson v McLean (1880), Ramsgate Victoria Hotel v Montefiore (1866), Payne v Cave (1789)

2.3 An explanation of the law on

communication; relevant case law: eg, Taylor v Laird (1856), Carlill v Carbolic Smoke Ball Co. (1893), Adams v Lindsell (1818), Brinkibon v Stahag Stahl und Stahlwarenhandelsgesellschaft (1983)

2.4 Analysis of the law of formation: the

phenomenon of agreement and its communication: the effectiveness of the use of offer and acceptance as indicators of subjective states of mind; other approaches to finding agreement: eg, Butler Machine Tools v Ex-Cell-O Corporation (1979); the nature and quality of the rules on communication of offer, acceptance, and revocation

2.5 Application of the law to a complex



2.6 Critically evaluate a given issue or situation to identify probable legal implications


3 Understand the rules for

determining a party’s intention to create legal relations

3.1 Explain the law on the intention to create legal relations

3.2 Analyse the law on the intention to create

legal relations 3.3 Apply the law on the intention to create legal

relations to a given situation 3.4 Critically evaluate a given issue or situation

to predict probable legal implications

3.1 An explanation of: the law on intention: the presumption in social and domestic situations and how that presumption may be rebutted: relevant case law, eg, Balfour v Balfour (1919), Merritt v Merritt (1970), Simpkins v Pays (1955); the presumption in commercial situations and how that presumption may be rebutted; relevant case law, eg, Rose & Frank v Compton (1925); the presumption when dealing with public bodies and how the presumption might be rebutted

3 2 Analysis of the meaning and use of rebuttable presumptions; their application in the context of intention



4 Understand the doctrine of consideration

4.1 Explain the law of consideration in contract

4.1 An explanation of the law of consideration: definition of consideration: see Dunlop v Selfridge (1915) (HL); rules setting out the limits to consideration: consideration must move from the promisee, but not necessarily to the promissor; past consideration is no consideration: relevant case law: eg, Re McArdle (1951); performance of an existing duty is not good consideration: relevant case law: eg, Stilk v Myrick (1809), Hartley v


4.2 Analyse the law of consideration 4.3 Apply the law of consideration to a given

situation 4.4 Critically evaluate a given issue or situation


Ponsonby (1857); see also Williams v Roffey & Nicholls (Contractors) (1990) and Re Selectmove (1995); the rule on part payment of a debt: see the rule Pinnel’s Case (1602) and its exceptions: relevant case law: eg, Pinnel’s Case (1602), Hirachand Punamchand v Temple (1911); promissory estoppel: see Central London Properties Trust v High Trees House (1947) and subsequent relevant case law

4.2 The purpose and role of consideration

including: the status and implications of Williams v Roffey & Nicholls (Contractors) (1990); the doctrine of promissory estoppel; showing awareness of judicial and academic opinion




5 Understand the doctrine of privity

of contract 5.1 Explain the law of privity of contract 5.2 Analyse the law of privity of contract

5.1 An explanation of the law of privity of contract, including common law exceptions to the rule; the provisions of the Contracts (Rights of Third Parties) Act 1999; relevant case law: eg, Dunlop Pneumatic Tyre v Selfridge (1915), Tulk v Moxhay (1848), Beswick v Beswick (1966)

5.2 Analysis of the purpose and role of the

doctrine of privity of contract; judicial attempts to avoid the doctrine; the effectiveness of the Contracts (Rights of


5.3 Apply the law of privity of contract to a given



Third Parties) Act 1999; judicial and academic opinion on the doctrine




6 Understand the law governing

terms of contract 6.1 Explain the law governing terms of contract

6.1 An explanation of: the law governing contractual terms: representations distinguished from terms: relevant case law eg, Bannerman v White (1861), Routledge v McKay, Birch v Paramount Estates Ltd (1956); express terms distinguished from implied terms; statutory methods of implying terms: ss 12-15 Sale of Goods Act 1979; terms implied under ss 13-14 Supply of Goods and Services Act 1982; terms implied by custom of location or trade practice; criteria for implying a term by custom: common law devices for implying terms – terms implied by fact: the business efficacy test: see The Moorcock (1889); the officious bystander test: see Shirlaw v Southern Foundries (1926) Ltd (1939); terms implied by common law (e.g.) (e.g.) Liverpool CC v Irwin (1976), Scally v Southern Health & Social Services Board (1992) , Equitable Life Assurance v Hyman (2002); the status of terms: distinguish conditions, warranties and innominate terms: see, eg, Poussard v Spiers & Pond (1876), Bettini v Gye (1876), Hong Kong Fir Shipping v Kawasaki Kisen Kaisha (1962)


6.2 Analyse the law governing terms of contract 6.3 Apply the law governing terms of contract to

a given situation 6.4 Critically evaluate a given issue or situation


6.2 Analysis and assessment of the rules for

distinguishing representation from term; the effect of classification as mere representation or as a term; devices for implying terms; the relationship between express and implied terms; the tests for determining the status of terms as conditions, warranties or innominate terms; judicial and academic opinion




7 Understand the law governing

exemption clauses 7.1 Explain the law on exemption clauses

7.1 An explanation of the law on exemption clauses: the common law rules of incorporation and interpretation of exclusion and limitation clauses; the main provisions of the Unfair Contract Terms Act 1977; their effect upon the validity of exemption clauses; the provisions of the Unfair Terms in Consumer Contract Regulations; relevant case law: eg, L’Estrange v Graucob (1934), Olley v Marlborough Court Hotel (1949), Spurling v Bradshaw (1956), Chapleton v Barry UDC (1940), Andrews v Singer (1934), White v John Warwick (1953), Suisse Atlantique Societe D’Armement Maritime v Rotterdamsche Kolen Centrale (1967)


7.2 Analyse the law on exemption clauses 7.3 Apply the law on exemption clauses to a

given situation 7.4 Critically evaluate a given issue or situation


7.2 The use of exemption and limitation clauses in business; 19th and 20th Century contexts; impact upon those in weaker bargaining positions; effectiveness of judicial intervention and of statutory intervention; awareness of judicial and academic opinion




8 Understand the law of misrepresentation

8.1 Explain the law of misrepresentation

8.1 An explanation of the law of misrepresentation: untrue statement of fact made by one party to the other, inducing the other to enter the contract; requirement of actual and reasonable reliance on the misrepresentation; distinguishing types of misrepresentation: fraudulent, negligent (under the Misrepresentation Act 1967) and innocent misrepresentation: see ss 2(1) and (2) Misrepresentation Act 1967; relevant case law: eg, Howard Marine & Dredging Co Ltd v Ogden & Sons (Excavations) Ltd (1978); remedies available in respect of innocent, negligent, and fraudulent misrepresentation; tortious nature of damages in misrepresentation; rules of remoteness of damage in mis-representation; relevant case law: eg, Royscot Trust v Rogerson (1991), Naughton v O’Callaghan (1990), Smith New Court Securities v Scrimgeour Vickers (1996)


8.2 Analyse the law of misrepresentation 8.3 Apply the law of misrepresentation to a given



8.2 Analysis of tortious nature of misrepresentation, the influence of this upon remedies; the rules of remoteness of damage in misrepresentation, and the comparison and contrast of them with the rules of remoteness of damage in contract; comparison and contrast of damages in misrepresentation and in contract; identification of the tactical advantages in an action in negligent misrepresentation and comparison and contrast of them with an action in contract

8.3 Application to a complex scenario 8.4 A reasoned opinion of likely legal


9 Understand duress and undue influence

9.1 Explain the law of duress 9.2 Explain the law of undue influence

9.1 An explanation of the law of duress: the common law rules on duress to the person and economic duress and possible remedies; relevant case law: eg, Barton v Armstrong (1975), R v A.G. for England and Wales (2003), The Sibeon v the Sibotre (1976), Atlas Express v Kafco (1989), The Atlantic Baron (1979)

9.2 An explanation of the equitable rules

relating to undue influence; the classifications of undue influence, and their practical implications; remedies; relevant case law: eg, Williams v Bailey (1866), Allcard v Skinner (1887), National Westminster v Morgan (1985), BCCI v Aboody (1990), Barclays Bank v O’Brien


9.3 Analyse the law of duress 9.4 Analyse the law of undue influence 9.5 Apply the law of duress to a given situation 9.6 Apply the law of undue influence to a given



(1993), RBS v Etridge (No 2) (2001) 9.3 and 9.4 Comparison and contrast of

actions in undue influence and duress; analysis of the development of both actions; analysis of the nature of fiduciary relationships required in undue influence

9.5 and 9.6 Application to a complex scenario 9.7 A reasoned opinion of likely legal


10 Understand the law on illegal contracts

10.1 Explain the principles governing illegality 10.2 Explain the common law on contracts in

restraint of trade

10.1 In outline only: contracts void by statute; contracts illegal by statute; contracts void at common law; contracts illegal at common law; consequences of a finding that the contract is illegal or void

10.2 An explanation of the law on restraint of

trade: contract prima facie void at common law as contrary to public policy; exceptions to general rule; criteria used by the courts to assess ‘reasonableness’: activity, time, area; the requirement of an interest that is worthy of protection; relevant case law: eg, Nordenfelt v Maxim Nordenfelt Co Ltd (1894), Vancouver Malt & Sake Brewing v Vancouver Breweries (1934), Mason v Provident Clothing & Supply (1913), M & S Drapers v Reynolds (1956), Fitch v Dewes (1921)


10.3 Analyse the law on illegal contracts 10.4 Apply the law on illegal contracts to a given



10.3 Reasons for policy on restraint of trade; historical development; distinguish position in employee contracts from sale of business contracts; analysis of position with regard to ‘contracts in gross’



11 Understand the law on discharge

of contract 11.1 Explain the law on discharge of contract 11.2 Analyse the law on discharge of contract

11.1 An explanation of the law on discharge of contract: identify ways discharge may come about: by performance, by agreement, by breach, and by frustration; breach may also be anticipatory or repudiatory; waiver and accord, subject to existence of agreement and consideration; common law position on frustration; effect of frustration at common law; Law Reform (Frustrated Contracts) Act 1943: the payee rule, the payer rule, and the valuable benefit rule; the use of force majeure clauses; relevant case law: eg, Cutter v Powell (1795), re Moore & Co v Landauer (1921), Hoenig v Isaacs (1952), Taylor v Caldwell (1863), Metropolitan Water Board v Dick Kerr (1918), Chandler v Webster (1904), Appleby v Myers (1867), Fibrosa Spolka Akcyjna v Fairborn Lawson Combe Barbour Ltd (1943)

11.2 To include analysis of: reasons for ‘strict

performance’ requirement in contract; consideration of the meaning of strict performance; evolution of discharge by


11.3 Apply the law on discharge of contract to a



frustration; the payee rule, the payer rule, and the valuable benefit rule



12 Understand remedies for breach of

contract 12.1 Identify remedies available when a contract

has been breached 12.2 Explain the meaning of ‘damages’ 12.3 Explain the purpose of unliquidated

damages in contract 12.4 Explain the place of ‘nominal damages’ in

contract 12.5 Distinguish ‘substantial damages’ from

‘nominal damages’ 12.6 Explain the law on claiming substantial

damages 12.7 Explain heads of damages in contract

12.1 Damages, repudiation, rescission, specific performance, injunction

12.2 Monetary compensation 12.3 To place the innocent party in position s/he

would have been had the contract not been breached: see Robinson v Harman (1848)

12.4 Claim small (nominal) amount as of right in

respect of breach 12.5 Claim reflects the claimants actual losses 12.6 The Claimant needs to show (a) the

breach caused the loss, (b) the loss was not too remote, (c) that the innocent party has attempted to mitigate the losses claimed; relevant case law: eg, Hadley v Baxendale (1854), The Heron II (1969), C&P Haulage v Middleton (1993), Payzu v Saunders (1919), Smith, Hogg & Co v Black Sea Insurance (1939), Pilkington v Wood (1953)

12.7 An explanation of: damages for non-

pecuniary loss: loss of enjoyment,


12.8 Explain the remedy of repudiation 12.9 Explain the remedy of rescission 12.10 Explain the remedy of specific

performance 12.11 Explain the law on specific performance 12.12 Explain the remedy of injunction

inconvenience, distress: relevant case law: eg, Jarvis v Swans Tours Ltd (1973), Farley v Skinner (2001); damages for pecuniary loss: reliance loss, expectation loss, loss of bargain; consequential loss; liquidated damages clauses; penalty clauses; relevant case law: eg, Chaplin v Hicks (1911), Anglia Television v Reed (1972), Watts v Morrow (1969), Ruxley Electronics v Forsyth (1996), Farley v Skinner (No 2) (2002)

12.8 An explanation of repudiation: right of the

innocent party to refuse to perform obligations under the contract; when the right arises; when the right may be lost; the implications of wrongful repudiation

12.9 An explanation of rescission: order

returning parties to their original position; may be lost if restitutio in integrum not possible, the contract has been affirmed, delay, third party rights are prejudiced, or damages judged a better remedy

12.10 Specific performance: order by court to

defaulting party to carry out obligations under the contract

12.11 Equitable nature of remedy; what the

claimant must establish in order to obtain an order; reasons applications may be refused; relevant case law: eg, De Francesco v Barnham (1890), Flight v Bolland (1828), Posner v Scott-Lewis (1987)

12.12 Order from the court to carry out a course

of action (mandatory) or refrain from doing


12.13 Explain the law on the granting of

injunctions 12.14 Analyse remedies 12.15 Apply the law on remedies to a given

situation 12.16 Critically evaluate a given issue or


so (prohibitory) 12.13 Equitable nature of the remedy; what the

claimant must establish in order to obtain an injunction; bars to granting injunction: giving particular emphasis to contracts in restraint of trade

12.14 Comparison and contrast of remedies;

assessment of their practical effectiveness in contractual situations; demonstration of understanding of their limitations in commercial and consumer situations




Additional information about the unit Unit aim(s) To accredit a broad and detailed

understanding of Contract Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 47 First Line Consumer Legal Advice and Unit 48 Consumer Legal Advice and Casework


Na


Na


Na



Name of the organisation submitting the unit ILEX (Institute of Legal Executives) Availability for use Available to all Awarding Bodies to award

credit (shared) Availability for delivery 1 September 2009


Unit 3 Title:

Criminal Law

Level:

6

Credit Value:

15




1 Understand the fundamental requirements of criminal liability

1.1 Analyse the general nature of the actus reus

1.2 Analyse the rules of causation 1.3 Analyse the status of omissions

1.1 Features to include: conduct (including voluntariness, ie, R v Larsonneur (1933), Winzar v Chief Constable of Kent (1983); relevant circumstances; prohibited consequences; requirement to coincide with mens rea

1.2 Factual causation; legal causation: situations

(for example, in the context of the non-fatal offences or homicide) where the consequence is rendered more serious by the victim’s own behaviour or by the act of a third party; approaches to establishing rules of causation: mens rea approach; policy approach; relevant case law to include: R v White (1910, R v Jordan ( 1956) R v Cheshire (1991), R v Blaue (1975), R v Roberts (1971), R v Pagett (1983), R v Kennedy (no 2) (2007)

1.3 Circumstances in which an omission gives

rise to liability; validity of the act/omission distinction; rationale for restricting liability for


1.4 Analyse the meaning of intention 1.5 Analyse the meaning of recklessness 1.6 Analyse the meaning of negligence as a

requirement for criminal liability 1.7 Analyse the factors for determining an

offence of strict liability

omissions; relevant case law to include: R v Pittwood (1902), R v Instan (1977), R v Miller (1983), Airedale NHS Trust v Bland (1993) Stone & Dobinson 1977

1.4 s8 Criminal Justice Act 1967; direct intention;

oblique intention: definitional interpretation; evidential interpretation; implications of each interpretation; concept of transferred malice; relevant case law to include: R v Steane (1947), Chandler v DPP (1964), R v Nedrick (1986), R v Woollin (1999), Re A (conjoined twins) (2000), R v Matthews and Alleyne (2003)

1.5 Significance of G and R in the development

of the meaning of recklessness; evaluation of the requirement of a subjective meaning of recklessness; relevant case law to include: R v Cunningham (1957), R v Caldwell (1982), R v G and R (2004)

1.6 Circumstances in which negligence gives

rise to criminal liability; evaluation of negligence as a basis of criminal liability; relevant case law to include: Elliott v C (1983), R v Adomako (1994)

1.7 Presumption of mens rea; reference to

Gammon guidelines; provision of statutory defence; nature of sanction; critical evaluation of strict liability; relevant case law to include: Sweet v Parsley (1970), Gammon v A-G of Hong Kong (1985), R v Blake (1997), B v DPP (2000), R v K (2001)


1.8 Analyse the meaning of complicity 1.9 Apply the law on criminal liability to a given


situation to identify probable legal implications

1.8 s8 Accessories and Abettors Act 1861; the actus reus and mens rea requirements of aiding, abetting, counselling and procuring; requirements for liability for participation in a joint enterprise; analysis of the rules governing liability where there is a departure from the joint enterprise; requirements for an effective withdrawal; the extent to which a principal and a secondary party may incur different liability; the theoretical basis of accessorial liability; relevant case law to include: R v Clarkson (1971), A-G’ s Ref (No 1 of 1975) (1975), R v Becerra and Cooper (1975), DPP for Northern Ireland v Maxwell (1979), R v Calhaem (1985), DPP v K and B (1997), R v Powell and Daniels (1997), R v English (1997), R v Uddin (1998), R v Gilmour (2000)R v Rahman ( 2007)



2 Understand the requirements for

liability for non-fatal offences 2.1 Analyse the actus reus and mens rea

requirements of assault 2.2 Analyse the actus reus and mens rea

requirements of battery

2.1 s39 Criminal Justice Act 1988: nature and meaning of the offence requirements; significance of ‘immediacy’; relevant case law to include: Tuberville v Sanvage (1669), Smith v Superintendent of Woking Police Station (1983), R v Venna (1975), R v Constanza (1997), R v Ireland (1998)

2.2 s39 Criminal Justice Act 1988: nature and

meaning of the offence requirements; relevant case law to include: Fagan v MPC


2.3 Analyse the actus reus and mens rea

requirements of actual bodily harm 2.4 Analyse the actus reus and mens rea

requirements of grievous bodily harm/wounding


requirements of grievous bodily harm with intent/wounding with intent

2.6 Analyse the requirements for the defence

of consent

(1969), Collins v Wilcock (1984), DPP v K (1990), Haystead v Chief Constable of Derbyshire (2000)

2.3 s47 Offences Against the Person Act 1861:

meaning of “assault”, “occasioning”, “actual bodily harm” and the extent to which this includes psychological harm; nature and meaning of the mens rea requirement; relevant case law to include: R v Ireland (1998), R v Chan-Fook (1994), R v Savage, DPP v Parmenter (1992), R v Roberts (1972)

2.4 s20 Offences Against the Person Act 1861:

meaning of “maliciously”, “wound”, “inflict”, “grievous bodily harm” and the extent to which this includes psychological harm; relevant case law to include: JJC v Eisenhower (1984), DPP v Smith (1961) R v Burstow (1998), R v Mowatt (1967), R v Savage (1992), DPP v Parmenter (1992), R v Dica (2004)

2.5 Grievous bodily harm with intent/wounding

with intent: s18 Offences Against the Person Act 1861: meaning of “with intent..”; relevant case law to include: R v Purcell (1986)

2.6 Requirements: validity (genuineness) of

consent; extent of harm permitted; criticism of the defence; role of policy in setting limits to the defence; relevant case law to include: R v Richardson (1999), R v Tabassum (2000), A-G’s Reference (No 6 of 1980) (1981), R v Brown (1993), R v Wilson (1996), R v Dica (2004)


2.7 Apply the law on liability for non-fatal offences to a given situation

2.8 Critically evaluate a given issue or situation





liability for homicide 3.1 Analyse the actus reus requirements of

homicide 3.2 Analyse the mens rea requirements of

murder 3.3 Analyse the requirements of involuntary

manslaughter

3.1 Requirements common to all forms of homicide: unlawful killing of a human being; concept of “killing” (= causing death) to include factual causation and legal causation; effect of Law Reform (Year and a Day Rule) Act 1996; relevant case law to include: R v White (1910), R v Smith (1959), R v Cheshire (1991), R v Blaue (1975), R v Corbett (1983), R v Dear (1996), A-G’s Reference (No 3 of 1994) (1996), R v Kennedy (no 2) (2007)

3.2 Intention to kill/cause serious injury; analysis

of the meaning of intention; relevant case law to include: R v Moloney (1985), R v Hancock (1986), R v Shankland (1986), R v Nedrick (1986), R v Woollin (1999), R v Matthews and Alleyne (2003)

3.3 Reckless manslaughter including the

restricted circumstances in which it applies; constructive manslaughter including the meaning of ‘unlawful act’, ‘dangerous’ and the mens rea requirement; gross negligence manslaughter including the meaning of ‘gross negligence’ and the mens rea requirement; the rules governing liability for involuntary manslaughter; criticisms of the rules; proposals for reform; relevant case law to include: R v Franklin (1883), Andrews v


3.4 Analyse the requirements of defences to

murder 3.5 Apply the law on liability for homicide to a

given situation 3.6 Critically evaluate a given issue or

situation to predict probable legal consequences

DPP (1937), R v Lowe (1973), R v Church (1966), R v Dawson (1985), R v Goodfellow (1986), R v Lamb (1967), A-G’s Reference (no 3 of 1994) (1998), R v Bateman (1925), R v Adomako (1994), A-G’s Reference (No 2 of 1999) (2000), R v Misra (2005)

3.4 Diminished responsibility: s2 Homicide Act

1957: as amended by s 52 Coroners and Justice Act 2007 meaning of the statutory provisions denoting the criteria for the defence; the relationship between diminished responsibility and other criminal law defences based on lack of mental responsibility: eg, the defences of insanity and automatism; relevant case law to include: R v Byrne (1960), R v Tandy (1988), R v Dietschmann (2003) and developing case law

Provocation: s 54-56 Coroners and Justice Act 2007 : meaning of loss of control, qualifying trigger ;outline of development of objective test in s 54(1) (c) relevant case law to include: R v Doughty (1986), R v Duffy (1949), DPP v Camplin (1978), R v Humphreys (1995), Luc Thiet Thuan v R (1997), R v Smith (2001), A-G for Jersey v Holley (2005), R v James (2006), R v Karimi (2006)




4 Understand the requirements for liability for offences against property

4.1 Analyse the actus reus and mens rea requirements of theft


requirements of burglary 4.3 Analyse the actus reus and mens rea

requirements of fraud

4.1 actus reus: s1 Theft Act 1968: meaning and analysis of “appropriation” (s3) including criticism of how the meaning has developed; “property” (s4); “belonging to another” (s5); relevant case law to include: Lawrence v MPC (1972), R v Morris (1984), R v Gomez (1993), R v Hinks (2000), R v Atakpu (1993), R v Abrahams (1993), R v Kelly (1998), R v Turner (1971), R v Hall (1973), A-G’s Reference (no 1 of 1983) (1985) mens rea: meaning of “dishonestly” including defences (s2), role and criticisms of the Ghosh test and the significance of ‘dishonesty’ as a result of judicial development of the meaning of ‘appropriation’; meaning of “intention of permanently depriving” (s6); relevant case law to include: R v Ghosh (1982), R v Feely, R v Coffey (1987), R v Lloyd (1985), DPP v Lavender (1994)

4.2 ss9, 10 Theft Act 1968: meaning of the

requirements under s9(1)(a) and s9(1)(b); analysis of the extent to which the different requirements are justified; meaning of “aggravated burglary” (s10); relevant case law to include: R v Collins (1973), R v Jones and Smith (1976), B and S v Leathley (1979), R v Walkington (1979), A-G’s Reference (nos 1 and 2 of 1979) (1980), R v O’Leary (1986), R v Stones (1989)

4.3 s1 Fraud Act 2006: meaning of the

requirements for fraud by false representation (s2), fraud by failing to disclose information (s3), fraud by abuse of position (s4); relevant case law (as it



requirements of obtaining services dishonestly


requirements of criminal damage 4.6 Apply the law on liability for offences

against property to a given situation 4.7 Critically evaluate a given issue or situation

to identify probable legal implications

develops) 4.4 s11 Fraud Act 2006: meaning of the

requirements; changes brought by the Act including an understanding of the relationship between fraud and theft; relevant case law (as it develops)

4.5 s1 Criminal Damage Act 1971: meaning of

the requirements for the basic offence (s1(1)) and the aggravated offence (1(2)); meaning of “arson” (s1(3)); analysis of the meaning of “damage” and “lawful excuse” (s5); relevant case law to include: Morphitis v Salmon (1990), Hardman v Chief Constable of Avon and Somerset (1986), R v G and R (2004), Jaggard v Dickinson (1981), R v Hill (1989), R v Hall (1989), R v Steer (1988), R v Webster (1995), R v Warwick (1995)

4.6 Application of law to a complex scenario 4.7 A reasoned opinion of likely legal



liability for inchoate offences 5.1 Analyse the actus reus and mens rea

requirements of attempt

5.1 s1 Criminal Attempts Act 1981: meaning of the statutory provisions denoting the requirements; effect of impossibility; analysis of the rules governing liability for attempt: the theoretical basis of liability; meaning of “more than merely preparatory”; relevant case law to include: R v Gullefer (1990), R v Jones (1990), R v Geddes (1996), A-G’s Reference (no 1 of 1992) (1993), R v Pearman (1984), R v Khan (1990), A-G’s



requirements of conspiracy 5.3 Apply the law on liability for inchoate

offences to a given situation 5.4 Critically evaluate a given issue or situation


Reference (no 3 of 1992) (1994), R v Shivpuri (1986)

5.2 s1 Criminal Law Act 1977: meaning of the

requirements for ‘statutory’ conspiracy; common law conspiracy: meaning and requirements of conspiracy to defraud and conspiracy to corrupt public morals; analysis of the rules governing liability for conspiracy: the theoretical basis of liability; scope of the rules including relationship to offences under the Fraud Act 2006; relevant case law to include: R v Anderson (1986), R v Siracusa (1989), Yip Chiu-Cheung v R (1994), R v Saik (2006), Scott v Metropolitan Police Commissioner (1975), Wai Yu-tsang v R (1992), Shaw v DPP (1962) (Candidates are not expected to know the rules relating to incitement/encouraging/assisting offenders under SCA 2007)



6 Understand the requirements of the

general defences 6.1 Analyse the requirements of the defence of

insanity

6.1 M’Naghten’s Case (1843): criteria for the defence including meaning of “disease of the mind”; burden of proof; criticism of the criteria for the defence; analysis of the relationship between insanity and (non-insane) automatism; comparison with diminished responsibility; relevant case law to include: R v Clarke (1972), R v Kemp


6.2 Analyse the requirements of the defence of

automatism 6.3 Analyse the requirements of the defence of

duress 6.4 Analyse the requirements of the defence of

intoxication

(1957), Bratty v A-G for Northern Ireland (1963), R v Sullivan (1984), R v Burgess (1991)

6.2 Criteria for the defence of (non-insane)

automatism; criticism of the criteria for the defence; analysis of the relationship between automatism and insanity; relevant case law to include: Broome v Perkins (1987), R v Quick (1973), R v Hennessey (1989), R v Bailey (1983)

6.3 Requirements of duress by threats, duress of

circumstances/necessity; analysis of the development and scope of the forms of the defence; relevant case law to include: R v Graham (1982), R v Hudson and Taylor (1971), R v Howe (1987), R v Gotts (1992), R v Bowen (1996), R v Abdul-Hussain (1999), R v Hasan (2005), R v Martin (1989), Re A (conjoined twins) (2001), R v Shayler (2001);

6.4 Meaning of intoxication; voluntary

intoxication; involuntary intoxication; classification of offences according to whether specific intent or basic intent; relevance of classification to liability; analysis of the significance of fault and the role of policy; effect of intoxication on the operation of other defences; relevant case law to include: DPP v Majewski (1977), R v Heard (2007), R v Lipman (1970), R v Hardie, A-G for Northern Ireland v Gallagher (1963), R v Kingston (1995), R v O’Grady (1987), Jaggard v Dickinson (1981);


6.5 Analyse the requirements of the defence of

mistake 6.6 Analyse the requirements of the defence

based on public or private defence 6.7 Apply the law on general defences to a



6.5 Meaning of requirement of honest mistake of

fact; analysis of the extent to which the defence interacts with other defences (such as intoxication, self-defence); relevant case law to include: DPP v Morgan (1976), B v DPP (2000)

6.6 s3 Criminal Law Act 1967 circumstances;

private defence; response to actual or perceived threat; significance of s76 Criminal Justice and Immigration Act 2008 in relation to honest belief and factors determining reasonable force; analysis of the criteria for the defence; relevant case law to include: R v McInnes (1971), A-G for Northern Ireland’s Reference (no 1 of 1975) (1977); R v Gladstone Williams (1984), Beckford v R (1988), R v Owino (1995), R v Clegg (1995), R v Martin (2001)

6.7 Application of the law on general defences to

a complex scenario 6.8 A reasoned opinion of likely legal



Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of

Criminal Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 31 Criminal Law Advice and Casework


Na


Na


Na



Name of the organisation submitting the unit

ILEX (Institute of Legal Executives)

Availability for use Available to all Awarding Bodies to award credit (shared)

Availability for delivery 1 September 2009


Unit 4 Title:

Employment Law

Level:

6

Credit Value:

15




1 Understand key concepts and themes in the development of employment law in England and Wales

1.1 Explain the role of contract in employment law

1.2 Analyse different kinds of employment

status including difficulties arising from standard definitions

1.1 The role of contract in forming the core of the employment relationship; key contractual principles including: offer, acceptance, consideration, contracts may be partly oral and written, outline of sections 1-7 Employment Rights Act (ERA)1996, concepts of express and implied terms to include following examples: employer – duty of mutual trust and confidence, duty to provide work and pay, duty of care in respect of health and safety, duty of care provision of references; employee - duty of obedience, personal service, good faith/fidelity

1.2 Employee status; definition: s230 (1) ERA

1996; protected by the key employment protection legislation including the ERA 1996 and a broad range of legislation across the following areas: discrimination, employment relations, fixed term employment, maternity/parental leave, minimum wage, part-time working, paternity and adoption leave, public interest disclosure, transfer of undertaking, working time;


1.3 Explain the impact of EU law and the law

of the European Convention on Human Rights on employment law

Worker status; definition: s230(3) ERA 1996; a broad definition granting eligibility for protection/rights under working time, national minimum wage, and part-time workers legislation;

Self-employed status/independent contractors; definition: individuals deemed in business of their own account; most limited statutory protection;

The common law tests that distinguish between the self-employed and employees and the protection available to each; the tests developed (but not conclusively) to identify employee status namely: Control, Mutuality of obligation, Personal service, Economic reality, Multiple factor test, Integration; relevant case law: eg, Ready Mixed Concrete v Minister of Pensions (1968), Montgomery v Johnson Underwood Ltd [2001] ICR 819, CA, Carmichael and another v National Power plc (HL) (1999) ICR 1226, Inspector of Taxes v Lorimer CA (1994) ICR 218, CA; more recent cases re the status of agency workers, eg, Dacas v Brook Street Bureau (UK) Ltd & another CA 2004 EWCA Civ 21, Franks v Reuters CA 2003 EWCA Civ 417; Muschett v HM Prison Service [2010] All ER (D)18 tax and national insurance consequences of different types of status including need for proposals for reform

1.3 The impact of EU law, especially EU

Directives; the effects of directives that require the UK to bring in national laws to


1.4 Apply an understanding of the main

concepts and themes of employment law in England and Wales to a given situation



implement: eg, Treaty of Rome art 141 -equal pay for equal work, General Framework Directive for Equal Treatment in Employment and Occupation 2006/56/EC, Part Time work Directive 97/81/EC, The EC Working Time Directive 2003/88/EC

An understanding and ability to apply the principles of vertical and horizontal direct effect in relation to the enforceability of employment law rights against state bodies contrasted with private sector employees

Relevant articles of European Convention on Human Rights (ECHR) and application of HRA 1998; the main effects of the HRA 1998, ie, framework for the operation of the European Convention on Human Rights (HRA 1998, schedule 1); Human Rights Act 1998 applies the ECHR only in respect of public authorities (which include courts and tribunals) and public bodies (Human Rights Act 1998 s6); no direct relevance in disputes between private employers and their employees




2 Understand the nature of the 2.1 Explain how the contract of employment is 2.1 Eg, Working time (hours & holidays) (Working


contract between employer and employee

regulated by statute 2.2 Identify the employee’s right to be informed

about specified terms of their contract of employment

2.3 Explain what wages are and when an

employer can and cannot deduct an amount from an employee’s wages

2.4 Explain the legal consequences if an

employer improperly deducts from wages 2.5 Explain the current adult and young

person’s national minimum wage rates and any penalties for non-compliance

Time Regs 1998), minimum wage (National Minimum Wage Act 1998), equal pay (Equality Act 2010), notice periods (s86 ERA 1996)

2.2 s1-7 ERA 1996; the provision of a statutory statement giving employees specified particulars within 2 months of commencing employment; specified contractual terms, eg, parties to contract, date when employment began, hours of work etc; additional, non-essential terms, eg, restrictive covenants, garden leave clauses etc

2.3 Knowledge of the Employment Rights Act

1996 Part Two, s13 to s27; definition of wages and circumstances in which sums may and may not be deducted; pension contributions; expenses payments; redundancy pay; allowances and benefits in kind do not count as payments by an employer to a worker for the purposes of the National Minimum Wage; special treatment of tips

2.4 Penalties for improper deductions, remedies,

time limits and forum, relevant statutes/statutory instruments: National Minimum Wage Act 1998, National Minimum Wage Regulations I 1999/584 regulation 13, National Minimum Wage Act 1998 (Amendment) Regs 1999 SI 1999/583; effectiveness and proposals for reform

2.5 Adult rate for workers aged 21 years and

older, 18-20 inclusive, and a youth rate for workers under the age of 18 who are no longer of compulsory school age; penalties


2.6 Explain the basic provisions of the working

time regulations 2.7 Apply an understanding of the nature of the

contract between employee and employer to a given situation



for non-compliance; remedies; time limits and forum; relevant statutory instrument: National Minimum Wage Regulations 1999 (Amendment) Regulations 2008, SI 2008/1894; effectiveness and proposals for reform

2.6 Provisions of the working time regulations

relating only to the 48 hour working week and statutory minimum annual holiday, including operation and reform of right to opt out; relevant legislation: Working Time Regulations 1998: Regulations 4-16; the EC Working Time Directive 2003/88/EC art 22; Working Time Regulations 1998-Regulation 28-32 and schedule 3; developments: Working Time (Amendment) Regulations from 1st October 2007, ie, 28 days holiday; developments leading to EC Agreement on Working Time and Working conditions for Temporary Agency; proposals for reform




3 Understand aspects of employment protection given to different types of workers

3.1 Explain the protection that exists for workers with regard to less favourable treatment in the workplace

3.1 The difference between workers and employees (see 1.2 above); definitions of workers: agency, temporary, fixed term and part-time; key protection measures including the link with unfair dismissal and the following: definition of fixed term conversion to permanent contracts, ie, Webley v Department for Work and Pensions CA


3.2 Explain the legal consequences if an

employer improperly treats such workers less favourably

3.3 Apply an understanding of the nature of

protection for workers to a given situation 3.4 Critically evaluate a given issue or situation


(2005) ICR 577, less favourable treatment, written reasons for non renewal; part-time workers: definition to include Matthews and others v Kent and Medway Towns Fire Authority and ors HL (2006) ICR 365, pay, less favourable treatment and objective justification; agency and temporary workers’ legislation , ie, Agency Workers Regulations 2010 (effective from October 2011): right not be treated by the agency or the end user less favourably once been in employment for 12 weeks; provisions on who an agency worker can sue if he or she is dismissed; proposals for reform to existing protection

3.2 Remedies, time limits and forums; relevant

provisions of: Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002; The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and (Amendment) Regulations 2002; Agency Workers Regulations 2010




4 Understand the protection afforded to employees by sex discrimination and equal pay legislation

4.1 Analyse the meaning of and issues arising from sex discrimination legislation

4.1 S.4 EA 2010 introduces the concept of protected characteristics including under s.11 sex discrimination to include direct discrimination s.13, indirect discrimination s.19, harassment s.26 and victimisation s.27; the exclusion of the sex discrimination provisions under s.70; concerning the liability


4.2 Analyse the meaning of equal pay and the

issues associated with inequality of pay 4.3 Explain the legal consequences following a

breach of the sex discrimination legislation 4.4 Explain the legal consequences following a

breach of equal pay legislation 4.5 Apply an understanding of the provisions

relating to sex discrimination and equal pay to a given situation



of employers and employees for sex discrimination s.109 and s.110

4.2 s.66 EA 2010 concerns the introduction of

the sex equality clause; the need for a comparator s.79; sex discrimination in relation to contractual pay s.71; relevant types of work s.64; equal work s.65; discussions on pay s.77; defence of material factor s.69

4.3 Enforcement of sex discrimination

legislation; procedure, questionnaires, time limits and remedies; Equality Act 2010;

4.4 Enforcement of equal pay provisions;

procedure, questionnaires, time limits and remedies (including compensation - injuries to feelings and quantum); relevant statutes/statutory instrument: Employment Act 2002 s42, Equal Pay Act 1970 s7B, Equal Pay (Questions and Replies) Order 2003 SI 2003/722; Equality Act 2010




5 Understand the protection afforded to employees by disability discrimination legislation

5.1 Analyse the meaning of and issues arising from disability discrimination legislation

5.1 s.6 Equality Act 2010 defines who will have the protected characteristic of disability emphasising what will constitute a disability; s.4 concerns direct discrimination; s.15 concerns discrimination arising from disability e.g. the need to take disability


5.2 Explain the legal consequences following a

breach of disability discrimination legislation

5.3 Apply an understanding of the protection

afforded by disability discrimination legislation to a given situation



related absence, can be justified by the employer provided it is a proportionate means of achieving a legitimate aim; indirect discrimination, s.19

5.2 Duty to make adjustments and examples of

what such adjustments s.20 Equality Act 2010; burden of proof, and limited defences; time limits for claims, questionnaires and remedies: declaration, recommendation, compensation including injuries to feelings and quantum; effectiveness and proposals for reform




6 Understand the protection afforded to employees by race, religious and sexual orientation discrimination legislation

6.1 Analyse the meaning of and issues arising from race, religious and sexual orientation discrimination legislation

6.2 Explain the legal consequences following a

breach of the race, religious and sexual orientation discrimination legislation

6.3 Apply an understanding of the protection

afforded by the race, religious and sexual orientation discrimination legislation to a given situation

6.1 1 S.4 EA 2010 introduces the concept of protected characteristics including under s.11 sex discrimination to include direct discrimination s.13, indirect discrimination s.19, harassment s.26 and victimisation s.27

6.2 Enforcement of discrimination legislation

including procedure, questionnaires, time limits and remedies including compensation including injuries to feelings and quantum; effectiveness and proposals for reform


scenario






7 Understand the law concerning wrongful dismissal

7.1 Explain the key elements of a wrongful dismissal claim

7.2 Explain the legal consequences of a

wrongful dismissal 7.3 Apply an understanding of wrongful

dismissal to a given situation 7.4 Critically evaluate a given issue or situation


7.1 Key elements of wrongful dismissal: a claim in contract, that there must be a breach, the requirement for the termination of the contract without due notice (including awareness of s86 ERA 1996); distinguishing it from an unfair dismissal claim

7.2 Wrongful dismissal claims including

procedure, time limits, remedies and forums; quantum of damages to include loss of wages, benefits and mitigation of loss; explanation of forum (Employment Tribunal and County/High Court) with monetary limits and advantages and disadvantages of each; effectiveness and proposals for reform




8 Understand the law concerning unfair dismissal

8.1 Explain the qualifying requirements for an unfair dismissal claim

8.2 Explain the “fairness in all the

circumstances” test

8.1 Application of the preliminary qualifying requirements and the six potentially fair reasons to dismiss under s98 ERA 1996 (capability, conduct, redundancy, retirement, statutory illegality, some other substantial reason); automatically unfair dismissals

8.2 Relationship between potentially fair reasons

and “fairness in all the circumstances”; consequences on an unfair dismissal claim if no fair procedure followed: s98(4) ERA


8.3 Explain the provisions governing fair

procedure in a dismissal situation 8.4 Explain the legal consequences following

an unfair dismissal 8.5 Apply an understanding of unfair dismissal

protection to a given situation 8.6 Critically evaluate a given issue or situation


1996; including the band of reasonable responses of the employer derived from HSBC Bank v Madden (2001); failure of the statutory disciplinary and grievance procedures

8.3 Understanding of the role of: the ACAS Code

of Practice; and an organisation’s own procedure before making a decision to dismiss; to include the role of detailed disciplinary and grievance policies and procedures and the ACAS Code of Practice on disciplinary and grievance matters; the failure of the Employment Act 2002 (Dispute Resolution) Regulations 2004 and replacement by the Employment Act 2008 provisions concerning consequences of failure to follow ACAS code; statutory provisions governing the right to be accompanied

8.4 The forum and remedies available to an

employee when the employer dismisses unfairly, including basic and compensatory award elements, and the potential increase or decrease to the awards; the role of mitigation; awareness of further remedies of reinstatement and reengagement; effectiveness and proposals for reform




9 Understand the law governing 9.1 Define redundancy 9.1 Definition: ERA 1996 s139(1); also, Murray


redundancy 9.2 Analyse the elements of a properly

implemented redundancy procedure 9.3 Explain the legal consequences of

redundancy

and another v Foyle Meats Ltd (1999) ICR 827; mobility clauses: High Table Ltd v Horst and others CA (1998) ICR 409; bumping

9.2 The contents of a formal redundancy policy

and the stages of a properly implemented redundancy to include: planning, identifying the pool for selection, invitation of volunteers, consultation - collective duty to consult trade union representatives: Trade Union and Labour Relations Act 1992 s188 (TULRCA) (in large scale redundancies), individual consultation in all cases, notification to the Department for Business, Enterprise and Regulatory Reform (BERR) in large scale redundancies: TULRCA 1992 s193, use of objective selection criteria, advance notice of individual consultation meeting, permitting a colleague to be present at consultation meetings, opportunity to appeal, allowing seeking of suitable alternative employment, statutory or other redundancy payment, relocation expenses, helping redundant employees obtain training or alternative work; the main provisions of The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999 (TUPE) and Amendment Regulations 2006, SI 2006/2387; effectiveness of process and legislation; proposals for reform

9.3 The position following a properly

implemented redundancy: the right to a redundancy payment, ERA 1996 s135; calculation of payment; the position following a poorly implemented redundancy; prima


9.4 Apply an understanding of the redundancy

provisions to a given situation 9.5 Critically evaluate a given issue or situation


facie presumption of fair dismissal: ERA 1996 s98(2)(c); consideration of if it would be just and equitable to treat the redundancy dismissal as unfair: ERA 1996 s98(4); unfairness if the selection of a particular individual for redundancy was unfair or if proper procedures (especially consultation) were not followed; dismissal can be automatically unfair dismissal depending on the reason for selecting for redundancy






understanding of Employment Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 45 First Line Employment Legal Advice and Unit 46 Employment Legal Advice and Casework


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Unit 5

Title:

Equity and Trusts

Level:

6

Credit Value:

15




1 Understand the role of equity and equitable principles in English Law

1.1 Explain the development of equity and its relationship to common law

1.2 Summarise the maxims and underlying

principles of equity 1.3 Explain the nature of a trust 1.4 Identify different uses of trusts including

modern uses 1.5 Analyse the main contributions of equity

1.1 An explanation of its historical development to fill gaps in common law; eg, Earl of Oxford's Case (1615) - where conflict, rules of equity prevail over common law; Judicature Acts 1873, 1875

1.2 The maxims; early principle of conscience

and modern concept of unconscionability 1.3 Origins of the trust; recognition of rights of

beneficiary by equity; originally personal rights but developed into equitable proprietary rights; split between legal and equitable ownership

1.4 Family trusts; bare trusts; fixed,

discretionary and protective trusts and powers of appointment; uses of trusts, for eg, charities, unit trusts, pensions; importance in commercial context, eg, in cases of commercial fraud or insolvency

1.5 Flexibility of equity to adapt to changing


1.6 Apply an understanding of equity and

equitable principles to a given situation 1.7 Critically evaluate a given issue or situation


times; trust mechanism extended from preserving family wealth to, eg, resolving disputes over home ownership and to commercial context; protection for mortgagors; remedies where damages inadequate; development of modern injunctions; appreciate importance of these mechanisms




2 Understand equitable remedies 2.1 Explain the effect of specific performance

and when it would be appropriate 2.2 Analyse the circumstances in which specific

performance is likely to be refused 2.3 Differentiate between the effect of a

prohibitory and a mandatory injunction

2.1 Orders party to contract to carry out term/s; available only if damages inadequate, eg, Cohen v Roche (1927), Sky Petroleum v VIP Petroleum (1974) and other relevant cases

2.2 Refused eg: if no consideration; if order

would be 'in vain'; where unacceptable degree of supervision, eg, Co-operative Insurance v Argyll Stores (1997) and other relevant cases; where cannot judge if imperfections of performance deliberate, eg, Giles v Morris (1972); for employment contracts; may be refused for other personal services and relevant cases; if lack of mutuality; factors may interact

2.3 Prohibitory to restrain an action; mandatory

to enforce positive action or undo an action; granted to protect legal or equitable right where damages inadequate


2.4 Contrast the principles governing the grant

of prohibitory and mandatory injunctions at the interim stage

2.5 Explain the effects of search orders and

freezing injunctions and the strict principles governing their use

2.6 Analyse reasons for the stringency of the

requirements for freezing injunctions and search orders

2.7 Explain the defences relevant to specific

performance and injunctions and when they might apply

2.8 Identify the availability of damages in lieu of

specific performance or injunction 2.9 Summarise the effect of other equitable

remedies and the circumstances in which they might be granted

2.10 Apply an understanding of equitable

remedies to a given situation

2.4 Prohibitory interim: American Cyanamid v

Ethicon (1975) guidelines; circumstances where guidelines not applied or modified; Mandatory interim: Shepherd Homes v Sandham (1971) test

2.5 A search order requires a defendant to

allow search of premises to secure evidence; requirements laid down in Anton Piller v Manufacturing Processes (1976); strict guidelines for execution; freezing injunction prevents defendant dealing with his assets; requirements as stated in, eg, Third Chandris Shipping v Unimarine (1979) and other cases

2.6 Draconian and described as law's 'nuclear

weapons', eg, may affect business and reputation; human rights issues

2.7 Lack of clean hands, eg, Coatsworth v

Johnson (1886); real hardship, eg, Patel v Ali (1984); delay and acquiescence, eg, Bulmer v Bollinger (1974), Shaw v Applegate (1977); other relevant cases

2.8 Awareness that damages may be awarded

in lieu under Lord Cairns' Act 2.9 Other remedies in outline only, eg

rescission and rectification of contracts, account




2.11 Critically evaluate a given issue or situation to predict probable legal implications


3 Understand how trusts, including secret trusts, are deliberately created

3.1 Explain the requirement for a trust to possess the three certainties of words, subject matter and objects

3.2 Analyse the effects of failure to comply 3.3 Explain the statutory formality requirements

in relation to lifetime trusts 3.4 Differentiate between the lifetime formalities

for a declaration of trust and a disposition of a pre-existing equitable interest

3.1 An explanation of the three certainties: intention (words), property and beneficial entitlements (subject matter), beneficiaries (objects); need for intention to impose obligation, not just a hope or wish, and relevant cases, eg, Re Adams and the Kensington Vestry (1884), Comiskey v Bowring-Hanbury (1905); ascertainable property subject to trust, ie, how much/many and which, and relevant cases eg Palmer v Simmonds (1854), Re Golay (1965), Re London Wine (1986), Hunter v Moss (1994); beneficial entitlement of individual beneficiaries and relevant cases, eg, Boyce v Boyce (1849); identifiable beneficiaries: different tests, eg, fixed trust – list test, IRC v Broadway Cottages Trust (1955); discretionary trust – is/is not test, McPhail v Doulton (1971); meaning and application, eg, Re Baden's Deed Trusts (No 2) (1973), same test as for powers from Re Gulbenkian (1970); gift with condition precedent, eg, Re Barlow (1979), applying Re Allen (1953) test

3.2 No valid trust; donee may take absolutely;

may be a resulting trust 3.3 Writing required by s53 Law of Property Act

1925; exemption of implied trusts, ie, s53(2) 3.4 s53(1)(b) requirement for declaration of trust

relating to land; s53(1)(c) requirement for disposition of existing equitable interest and


3.5 Explain the requirement for title to be

transferred to the recipient of a gift and the trustee of a trust

3.6 Analyse the effect of failure to transfer title 3.7 Review the exceptions to the general rule 3.8 Explain the statutory formality requirements

in relation to gifts or trusts taking effect on

meaning of 'disposition' as discussed in cases such as Grey v IRC (1960), Vandervell v IRC (1967), Oughtred v IRC (1960), Neville v Wilson (1997); application of formalities to sub-trusts

3.5 Completion of gifts and constitution of trusts

by transfer of title; correct methods for different types of property; need for transfer to be complete, eg, Milroy v Lord (1862)

3.6 General rule from Milroy v Lord: equity will

not perfect imperfect gifts or assist volunteers nor interpret as self–declaration; other illustrative cases; contrast Choithram v Pagarani (2001) - equity won't strive to defeat

3.7 If settlor did all in his power, treated as

complete in equity under Re Rose (1952) but difficulties with this; extension in Pennington v Waine (2002) where unconscionable to go back, but scope is uncertain; rule in Strong v Bird (1874) where title as executor; extended to gifts in Re Stewart (1908), to administrators in Re James (1935) (criticised); other relevant cases; extension by analogy to constituting trusts in Re Ralli (1964); donatio mortis causa: Cain v Moon (1896) requirements and cases applying them; application to land in Sen v Headley (1991), whether dmc justifiable; proprietary estoppel and relevant cases

3.8 Provisions of s9 Wills Act 1837 in outline


death 3.9 Explain the specific requirements for validity

of secret trusts 3.10 Explain different methods of

communication 3.11 Compare the rules applying to fully and half

secret trusts 3.12 Analyse the theories used to justify non-

compliance with formalities and their application in cases

3.13 Analyse the anomalies and areas of doubt

in relation to secret trusts

3.9 Exception to s9 Wills Act, ie, created without

formality; requirements: communication to secret trustee of trust, terms and property, acceptance by trustee, reliance, eg Moss v Cooper (1861) and other relevant cases

3.10 Communication of terms by sealed

envelope as in Re Keen (1937); rules where communication not made to all trustees discussed in Re Stead (1900)

3.11 Communication before death for fully secret

trusts under Wallgrave v Tebbs (1855), Re Boyes (1884); but before or at time of will for half secret under Re Keen, Re Bateman (1970); criticism of difference in rules

3.12 Fraud theory from Mc Cormick v Grogan

(1869); may suggest constructive; outside will theory – arise through communication outside will as discussed in Blackwell v Blackwell (1929); suggests express trusts; application of outside will theory, eg, Re Young (1951), Re Gardner (No 2) (1923) and criticism of latter; whether theories satisfactory and if justify disregarding s9 Wills Act

3.13 Disagreement as to justification;

inconsistency of rules; doubts as to whether s53(1)(b) applicable if land, eg, Re Baillie (1886), Ottaway v Norman (1972); s.53(2) applies if constructive; unresolved issues, eg, whether secret trust defeated by disclaimer/death of trustee


3.14 Apply an understanding of how trusts

(including secret trusts) are created to a given situation




situation 3.15 A reasoned opinion of likely legal


4 Understand when trusts will be

implied by law 4.1 Explain the statutory exemption of implied

trusts from formality requirements 4.2 Differentiate between resulting trusts arising

from a rebuttable presumption ('presumed' resulting trusts) and those arising from a failure to part with the entire equitable ownership ('automatic' resulting trusts)

4.3 Summarise the different circumstances in

which a constructive trust might arise 4.4 Explain the use of resulting and constructive

trust principles and proprietary estoppel to resolve disputes over shared homes

4.1 Section 53 Law of Property Act 1925; formalities don't apply to creation of implied, resulting, constructive trusts under s53(2)

4.2 Purchase money presumed resulting trusts,

eg, Bull v Bull (1955) and/or other illustrative cases; presumed resulting trust on voluntary conveyance; automatic resulting trusts arising from failure to dispose of entire equitable interest, eg, Vandervell v IRC (1967) (option), Re Trusts of the Abbott Fund (1900) and/or other illustrative cases; Quistclose trusts as interpreted in Twinsectra v Yardley (2002)

4.3 Examples in outline only: specifically

enforceable contracts, mutual wills, forfeiture, common intention constructive trust, profits made by fiduciaries; liability of third party recipients; categories not closed

4.4 Resulting trust restricts share to proportion

of direct contribution at outset, eg, Cowcher v Cowcher (1972), Curley v Parkes (2004), but later mortgage payments count if anticipated at outset under Tinsley v Milligan (1994); development of constructive trust principles, eg, Gissing v


4.5 Apply an understanding of implied trusts to



Gissing (1971), Pettitt v Pettitt (1970), Lloyds Bank v Rosset (1991); express common intention and detrimental reliance, eg, Grant v Edwards (1986) and other example cases; inferred common intention for which indirect contributions generally don't count, eg, Rosset and other cases, but dicta in, eg, Burns v Burns (1984) and by HL in Stack v Dowden (2007); calculating size of interest and relevant cases including HL dicta in Stack v Dowden; relationship with estoppel and relevant estoppel cases



implications, including remedies and defences, where appropriate; eg, limitations of resulting trust and inferred common intention constructive trusts; evidential difficulties of express common intention; doubts as to what counts as detrimental reliance; unclear relationship with estoppel; inconsistency on quantification; Law Commission recommendations for reform

5 Understand the rules relating to

purpose trusts 5.1 Identify purpose trusts 5.2 Summarise the key advantages of

charitable status

5.1 Charitable (public) purpose trusts; non-charitable (private) purpose trusts within permitted classes; relevance to unincorporated associations

5.2 Awareness of fiscal advantages; enforced

by Attorney General so no need for ascertainable beneficiaries; need not have certainty of objects; exempt from rule


5.3 Explain the purposes which the law regards

as charitable 5.4 Explain the requirement for benefit to the

public 5.5 Analyse the approach to public benefit for

different types of charitable trusts 5.6 Explain the rules relating to application of

against inalienability (ie, excessive duration); availability of cy-près doctrine

5.3 Pemsel (1891) classification – four heads of

charity; expanded by Charities Act 2006; charitable purposes as listed in s2; purpose must be wholly and exclusively charitable

5.4 Tangible benefit and sufficient section of

public; Charities Act preserves public benefit requirement; specifies no presumption of benefit; defined by reference to case law before Act

5.5 Applied differently to four Pemsel heads;

tangible benefit and example cases; poverty trusts have minimal public benefit requirement - class could be defined by link of family or employment ('personal nexus'), eg, Dingle v Turner (1972); for educational trusts class must not be numerically negligible or defined by personal nexus, eg, Oppenheim v Tobacco Securities Trust (1951), but 'preference' cases and criticisms; religion, eg, Gilmour v Coats (1949) and other example cases, and not certain if personal nexus rule applicable; strict benefit requirement for trusts for other purposes beneficial to community, no class within a class eg IRC v Baddeley (1955) and other example cases; criticism of differences and doubt as to how benefit rules will apply to the new statutory purposes; Charity Commission to issue guidance but no statutory force

5.6 An explanation of the cy-près doctrine:


money given for a charitable purpose which fails

5.7 Distinguish between situations where the

cy-près doctrine will and will not apply 5.8 Explain the principle that a non-charitable

trust must have a beneficiary to enforce it 5.9 Analyse the effect of the beneficiary

principle on private purpose trusts 5.10 Analyse the exceptions to the principle 5.11 Analyse the decision in Re Denley as a

further possible exception to the principle 5.12 Apply the certainty of objects requirement

to purpose trusts

allows money to be applied to a charitable purpose as close as possible to the one intended but which has failed

5.7 Always applies on subsequent failure but

only applies on initial failure if 'general charitable intention'; difficulty of interpretation and example cases; cy-près if unknown donors

5.8 An explanation of the beneficiary principle;

Morice v Bishop of Durham (1804) requires ascertainable beneficiaries in whose favour court can enforce the trust

5.9 Trusts for abstract purpose (pure purpose

trusts) which don't benefit person/s are void; eg, Re Endacott (1960), Re Astor (1952), Re Shaw (1957)

5.10 Exceptions listed in Re Endacott as

anomalous and won't be extended; categories and example cases; valid, but trusts of 'imperfect obligation' as no-one who can force trustee to carry them out

5.11 An explanation of Re Denley (1969), ie, a

trust expressed for a purpose which benefits identifiable persons is valid as they have locus standi to enforce the trust; unorthodox view if not beneficiaries in normal sense of owning beneficial interests; doubted in Re Grant (1980) (viewing Denley as discretionary trust)

5.12 Purpose must be clearly defined, eg, Re

Endacott, Re Astor; for Denley trust,


5.13 Explain the rule against excessive duration

of purpose trusts 5.14 Explain the problems in relation to gifts to

an unincorporated association 5.15 Analyse the different interpretations placed

upon gifts to unincorporated associations

purpose must be clearly defined and those who benefit must be identifiable, so clear who can enforce it

5.13 Property must not be tied up for a private

purpose for a time that could exceed perpetuity; need to expressly limit to perpetuity period or 'so long as the law allows' and relevant cases; no problem when capital can all be spent, eg, Mussett v Bingle (1876), Re Lipinski (1976); Perpetuities and Accumulations Act 1964 does not apply to purpose trusts

5.14 Not a legal person so can't own property or

be beneficiary of a trust; gift to association would be a trust for its purposes, void under beneficiary principle and for perpetuity (unless charitable), eg, Leahy v AG for NSW (1959); problem affects most members' clubs

5.15 May be valid if view as gift to the members;

need to construe gift and rules of club; present members individually is rarely intended; present and future members raises perpetuity issues and possible application of 1964 Act; present members subject to rules, discussed, eg, in Neville Estates v Madden (1962), Re Recher (1972) and cases applying this; favoured view, as indicated in more recent cases, but only possible if rules give members control of assets or can be changed to give control, cf, Re Grant; Re Denley was applied to gift to association in Re Lipinski; consideration of relative advantages and disadvantages


5.16 Apply an understanding of the rules

relating to purpose trusts to a given situation



of different interpretations and whether the present law is satisfactory




6 Understand the role of trustees and

the administration of trusts

6.1 Summarise the rules relating to appointment

of trustees 6.2 Explain how a trustee may retire or be

removed from office 6.3 Explain the duties of a trustee and other

fiduciary not to put himself in a position where his interest conflicts with his duty and not to make any profit from his position

6.4 Analyse the imposition of a constructive

trust rather than an account of profits 6.5 Summarise the exceptions to the no conflict

6.1 Awareness of relevant provisions of Trustee

Act 1925 and Trusts of Land and Appointment of Trustees Act 1996

6.2 An explanation of the circumstances and

procedures; awareness of relevant provisions of Trustee Act 1925 and Trusts of Land and Appointment of Trustees Act 1996

6.3 Fiduciary nature of trustee's position; strict

rules underpinned by no conflict and no profit principles; eg, self dealing rule, no remuneration, but exceptions, no profits from position and example cases including Boardman v Phipps (1967); extension to other fiduciaries

6.4 Constructive trust, eg, AG for Hong Kong v

Reid (1994), ie, consequential claim for property bought with 'profit', which had risen in value; question of justifiability

6.5 Authorisation, eg, in trust instrument or from


and no profit rules 6.6 Analyse the appropriateness of a strict

application of fiduciary duties 6.7 Identify the duties of a trustee on

appointment 6.8 Explain the case law duties of trustees in

relation to the beneficiaries and trust property

6.9 Summarise the statutory powers and duties

of trustees in relation to investment and the delegation of investment functions

6.10 Analyse the adequacy of statutory duties

and controls

all beneficiaries if sui juris and fully informed; other exceptions, eg, rule in Cradock v Piper (1850), or sanctioned by court and example cases

6.6 A consideration of dissenting views and the

criticism of Boardman v Phipps 6.7 Must familiarise self with terms and check

fund properly invested 6.8 Duty to be even-handed between

beneficiaries; duty of prudence; duty to invest; balance interests of life and remainder beneficiaries, eg, Nestlé v National Westminster Bank (1988); financial not ethical considerations for investment, eg, Cowan v Scargill (1985); duties where majority shareholding, eg, Re Lucking (1968), Bartlett v Barclays Bank (1980); other relevant case law on various duties

6.9 Trustee Act 2000: s3 general power of

investment; s8 investment in legal estate in UK land; s1 statutory duty of care; s4 standard investment criteria and duty to review; s5 duty to obtain advice; s11 delegable functions; s22 duty to review arrangements with agent; s23 liability for agent; Trustee Delegation Act 1999 in outline only

6.10 If, eg, investment powers too wide, if duties

strict enough and if enough accountability


6.11 Explain the powers and duties of trustees

in relation to paying out income and capital to beneficiaries

6.12 Analyse the scope and appropriateness of

the statutory powers of maintenance and advancement

6.13 Explain the range of powers for trusts to be

varied by beneficiaries or the court 6.14 Analyse the extent and appropriateness of

the powers contained in Variation of Trusts Act 1958

6.15 Apply an understanding of the role of

trustees and the administration of trusts to

where agents appointed 6.11 Trustee Act 1925 s31 discretionary powers

to use income for maintenance, education or benefit of minor beneficiary and duty to accumulate; s31 entitlement to income once 18; if carry intermediate income; s31 rules as to use of and entitlement to accumulations; s32 power to advance capital for advancement or benefit and limits on power

6.12 Meaning of benefit defined in Pilkington v

IRC (1964); advancement to resettle; benefit to others; improper payments, eg, Re Pauling's ST (1964); other relevant cases; whether statutory powers wide enough or too wide

6.13 Rule in Saunders v Vautier (1841); limited

powers under Trustee Act 1925 and inherent power; main power in Variation of Trusts Act 1958

6.14 Categories on behalf of whom court can

approve variation; requirement for variation to be for benefit of those on behalf of whom court gives consent; meaning of benefit as interpreted in relevant cases, eg, Re Weston (1969), Re Remnant (1970); whether and how far settlor's intentions can or should be ignored and example cases; 'substratum' requirement from Re Ball (1968)


scenario






7 Understand the remedies available

to beneficiaries for breach of trust 7.1 Classify remedies into personal and

proprietary claims and explain the effect of each

7.2 Distinguish between personal claims

against a trustee and a third party 7.3 Explain the extent of a personal claim for

breach of trust against the trustees 7.4 Explain how liability is shared between the

trustees 7.5 Explain the defences a trustee might raise

7.1 Personal claim requires defendant to meet it from own funds; won't be met in full if bankrupt or disappeared; proprietary claim asserts right to identifiable assets or a proportion (including increase in value as confirmed in Foskett v McKeown (2001)) or a charge (lien) over them; priority over other creditors

7.2 Trustee liable for breach even if inadvertent;

in general third party is personally liable only if aware

7.3 Claim for loss caused by breach according

to Target Holdings v Redferns (1996) plus interest; measure of liability for investment breaches; joint and several liability; passive trustee equally liable according to Bahin v Hughes (1886); exemption clauses and proposals for reform in outline only

7.4 Civil Liability (Contribution) Act 1978;

indemnity, eg, Re Partington (1887), Head v Gould (1898), Chillingworth v Chambers (1896)

7.5 Consent or acquiescence, eg, Re Pauling's

ST (1964), Holder v Holder (1968); impounding of beneficial interest under s62 Trustee Act 1925 or inherent power and relevant cases; relief under s61 Trustee Act


7.6 Explain when a proprietary claim would be

available 7.7 Explain when a proprietary claim would fail 7.8 Analyse the circumstances in which a third

party who had received trust property would or should be personally liable to repay an equivalent sum

7.9 Explain the basis of liability of a third party

who assisted in a breach of trust or fiduciary duty

1925 and relevant cases; Limitation Act 1980

7.6 Common law in outline only; equitable rules

and prerequisites, ie, fiduciary relationship and equitable proprietary interest; equitable rules identify funds when mixed, eg, Re Hallett (1880), Re Oatway (1903), Roscoe v Winder (1915); can follow or trace into hands of innocent volunteer unless inequitable under Re Diplock (1948), Foskett v Mckeown (2001); innocent contributors share funds rateably except where Clayton's case (1817) applies; subrogation, eg, Boscawan v Bajwa (1996)

7.7 No claim to property in hands of bona fide

purchaser for value without notice; proprietary claim fails if property can't be identified or ceases to exist (dissipated), or where proprietary claim inequitable as in Re Diplock

7.8 An explanation of the Diplock personal no

fault claim for misapplied money from a deceased's estate; liability for knowing receipt: BCCI v Akindele (2001) requiring beneficial receipt of assets traceable to a breach, with knowledge making it unconscionable to retain any benefit; doubts about when 'unconscionable'; should liability be strict; role of change of position defence

7.9 Accessory liability of person who

dishonestly assists a breach of trust; doubts over meaning of dishonesty: Royal Brunei


7.10 Apply an understanding of remedies

available to beneficiaries to a given situation



Airlines v Tan (1995) laid down primarily objective test; in Twinsectra v Yardley (2002) HL appeared to introduce subjective test but this was doubted in Barlow Clowes v Eurotrust (2006) and Abou-Rahmah v Abacha (2007), suggesting subjective only in that must know the facts making the transaction improper, taking account of defendant's intelligence and experience





Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding

of the Law of Equity and Trusts Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 6 Title:

European Union Law

Level:

6

Credit Value:

15




1 Understand the constitutional and political history of the EU

1.1 Describe the key stages in the history and development of the EU

1.2 Explain the relationship between

supranational and intergovernmental dimensions of the EU

1.1 The Schumann plan; expansion from the Coal and Steel Community 1951; Treaty of Rome (referred to as EC throughout)1956; Merger Treaty 1965; Single European Act 1986; (Maastricht) Treaty of European Union (TEU) 1992; Amsterdam (1997) and Nice (2000) Treaties; European Convention and the abortive constitutional treaty; Lisbon Treaty . Current treaties Treaty of European Union (TEU) and Treaty on the Functioning of the European Union (TFEU)

1.2 Defusing of potential for war between

participant states; the ‘United States of Europe’; pragmatic economic approach against idealistic political approach; forms of economic integrations, namely: nature of the Common Market – customs union, free trade area and free movement of all factors of production; primacy of the member states through the Council


2 Understand the constitutional

structure and institutions of the EU

2.1 Describe the structure and functions of the

institutions 2.2 Explain the relationship between the

institutions

2.1 Role and function of the European

Parliament (EP); originally merely a ‘select committee’ with a limited role and no legislative initiative or veto; now having clear functions: legislation; budgetary; nomination of Commission; general accountability of Commission;

Role and function of the European Council and Council; representation of the member states; approving legislation; qualified majority voting;

Role and function of the Commission: guardian of the treaties (Art 258 TFEU); initiation of legislation; administration of EU policies;

Function, jurisdiction and composition of the European Court of Justice (ECJ) and General Court;

Outline of the other institutions: Court of Auditors, Economic and Social Committee (ECOSOC), Committee of the Regions, Committees of Permanent Representatives (COREPER), Office for Harmonisation in the Internal Market (OHIM), Ombudsman

2.2 Original model, like the control of a ministry

at national level, ie, minister(s) in political control; civil servants (commission) executing policy; Parliamentary select committee maintaining oversight; legal


supervision by the courts; an examination of the extent to which this has changed and developed; the current model: EP fully democratically accountable, but still remote; Commission provides expertise and political impetus from Council; strategic planning – direction of Commission by Council; the Troika

3 Understand the legislative competences and processes of the EU

3.1 Explain the procedures associated with the co-decision process

3.2 Outline those procedures associated with

the other legislative processes 3.3 Analyse the principles of subsidiarity,

shared and exclusive competence 3.4 Apply an understanding of the legislative

competences and processes to a given situation



3.1 An explanation of the ordinary legislative procedure (Art 289 and 294 TFEU), ie, initial proposal; first reading; handling of disagreements; qualified majority; role of Commission; conciliation; trialogues; EP veto

3.2 An outline of Consultation: single reading;

must be real: Case 138/79 Roquette Frères; no veto; an outline of Co-operation (Art 115 TFEU): greater involvement; two readings and special procedure to override EP, but no veto; an outline of Assent procedure: veto, but no formal negotiation process; the pervasive nature of dialogue, discussion, lobbying and desire for consensus

3.3 The concepts of exclusive and shared

competence; the concept of subsidiarity (Art 5 TEU) and how effect is given to this as a guiding principle




4 Understand the essential principles 4.1 Describe the sources of Community law 4.1 Treaties, Regulations, Directives, Decisions,


of the EU legal order 4.2 Analyse the nature of the supremacy of EU

law 4.3 Explain the application of the principle of

direct effect to regulations and directives 4.4 Analyse the role played by fundamental

principles of law in the jurisprudence of the

binding and non-binding Acts 4.2 The ‘new legal order’: Case 26/62 van Gend

& Loos; supremacy over national law: Case 6/64 Costa v ENEL, Case 9/70 Grad v Finanzamt Traunstein; Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal; national responses: eg, the ‘Solange’ cases (Internationale Handelsgesellschaft [1974] 2 CMLR 540 and Wünsche Handelsgesellschaft [1987] 3 CMLR 225); Brunner v EU [1994] 1 CMLR 57, Factortame I [1990] 2 AC 85; an explanation of the obligations under Art 4 TEU; proper procedures to give effect to rights under EU law

4.3 Direct applicability and effect of regulations;

vertical direct effect of directives and its limits: eg, Case 41/74 van Duyn v Home Office, Case 148/78 Pubblico Ministero v Tullio Ratti, Case 152/84 Marshall v Southampton etc AHA., Case 103/88 Fratelli Constanzo v Comune di Milano; no horizontal direct effect: Case C-91/92 Faccini-Dori v Recreb; horizontal indirect effect: Case 14/83 von Colson and Kamann v Land Nordrhein -Westfalen and the interpretative obligation: Case C-106/89 Marleasing v La Comercial Internacionale de Alimentacion; application in national courts: eg, Pickstone v Freemans [1989] AC 66, Litster v Forth Dry Dock [1990] 1 AC 546

4.4 Non-discrimination; human rights; general

considerations: case law, eg, Case 29/69


European Court of Justice (ECJ) 4.5 Apply an understanding of these essential

principles of the EU legal order to a given situation



Stauder v Stadt Ulm, Case 4/73 Nold v Commission; European Convention on Human Rights: case law, eg, Case 36/75 Rutili v Minister of the Interior, Case 222/84 Johnston v CC RUC; other international instruments: eg, Case 149/77 Defrenne v SABENA III; EU Charter of Fundamental Rights




5 Understand the rules relating to venue for litigation and enforcement of claims in the EU

5.1 Explain the policy and principles underlying the Brussels Regulation and the European Small Claims Procedure

5.2 Apply an understanding of the EU rules for

litigation and enforcement of claims to a given situation



5.1 An explanation of the Brussels Regulation (Reg 44/2001) on venue for proceedings and procedures for recognition and enforcement of judgments, and the provisions of and the rules relating to the European Small Claims Procedure (ESCP) (Reg 861/2007); most specifically, factors affecting jurisdiction to entertain proceedings; location of the cause of action, location of the parties, differential treatment of consumers and businesses; criteria for recognition and enforcement; rationale for and elements of the ESCP





6 Understand the rules relating to the application of EU legal principles in national legal systems

6.1 Explain the nature and scope of preliminary references under Art 267 TFEU (with particular reference to Art 267.3)

6.2 Analyse the concepts of acte claire and

acte éclairé 6.3 Explain the criteria and procedures for the

grant of interim relief 6.4 Analyse the criteria for the imposition of

state liability for non-contractual damages for non-compliance with EU legal obligations

6.1 Rationale for the procedure, ie, the need for an authoritative and consistent approach; bases of jurisdiction: interpretation of the treaties, validity and interpretation of other instruments; nature of instruments within scope; concept of a ‘tribunal’: eg, Case 246/80 Broekmeulen v Huisarts Registratie Commissie; scope and operation of Art 267.3: Case C-99/00 Lyckeskog, ie, proper practice for supreme courts where appeal is discretionary; nature of the reference as a ‘step in the main proceedings’ and the ruling is purely on matters of EU law; distinction between reference and appeal; reference in matters of ‘pure’ EU law possible as soon as the facts are established; reference in matters of mixed national and EU law (eg, transposition of directives) only when national law has been ascertained

6.2 Rationale of acte claire: CILFIT criteria

(Case 283/81 CILFIT and Lanificio di Gavardo v Ministry of Health); rationale of acte éclairé: Cases 28030/62 Da Costa en Schaake et al. v Nederlandse Belastingsadministratie, ie permissible if there is any doubt

6.3 Respective roles of ECJ and national courts;

limitations on national courts powers: eg, Case 314/85 Foto Frost v Hauptzollamt Lübeck-Ost

6.4 The nature of and rationale for the

Francovich principle (Case C-6 & 9/90 Francovich and Bonifaci v Italy); criteria for application: cases C-46 and 48/93



relating to the application of EU legal principles in national legal systems to a given situation



Factortame III /Brasserie du Pêcheur; applicability to judicial decisions: Case C-224/01 Köbler v Republik Österreich, Case C-173/03 Traghetti del Mediterraneo v Italy




7 Understand the rules relating to direct actions before the ECJ and Court of First Instance (CFI)

7.1 Explain the legal basis of the jurisdiction of the court under Art 262/264 TFEU

7.2 Analyse the concepts of direct and

individual concern 7.3 Analyse the criteria for the imposition of

liability for non-contractual damages for non-compliance with EU legal obligations under Art 235/288 EC

7.4 Explain the different criteria and

7.1 Identify and explain the significance of the distinction between privileged and non-privileged applicants; reviewable acts; nature of the review, ie, constitutional (eg, Case 138/79 Roquette Frères, Case 302/87 Parliament v Council (Comitology)), orthodox judicial review and appeal (eg, competition decisions); grounds for review

7.2 Nature of direct and individual concern: Case

25/62 Plaumann v Commission; issues of the adequacy of legal protection of non-privileged applicant, eg, Case C-50/00 Union de Pequeños Agricultores v Council, Case C-263/02P Jégo-Quéré v Commission. Position in relation to regulatory acts.

7.3 Direct liability and vicarious liability, ie, faute

de service and faute de personne; the Schöppenstedt formula (Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v Council); nature of ‘higher order legal norms’

7.4 Complaints, non-notification and ‘own


motivations for initiating action under Art 258TFEU

7.5 Explain the procedures adopted by the

Commission under Arts 258 and 260 TFEU 7.6 Analyse the effectiveness of action by the

Commission under Art 258/260 7.7 Apply an understanding of the rules

relating to direct action before the ECJ and ECI to a given situation



account investigation’; enforcing Art 4 TEU obligation of states; applicability of the Code of Practice

7.5 Initial informal investigation and exchanges

with the state with a view to informal resolution; formal investigation; reasoned opinion; judicial stage: criteria for action and constraints on the Commission’s formulation of its case; criteria for the application of Art 260 TFEU; nature of the penalties

7.6 Level of activity; nature of activity; criteria for

and level of use of Art 258 7.7 Application of understanding to a complex



8 Understand the substantive law relating to the single internal market

8.1 Explain the concepts of free movement of goods

8.1 Provisions of Part Three Title I TFEU, ie, essentials of the single market;

in relation to customs duties and charges having equivalent effect: nature of customs duties; imposed because crossing a frontier; reason for imposition immaterial: eg, Cases 2 and 3/69 Sociaal Fonds voor de Diamentarbeiders v Brachfeld;

in relation to discriminatory internal taxation: scope of Art 110 TFEU, eg, Case 21/79 Commission v Italy: differential taxation of the same product eg, Case 168/78 Commission v France; indirect protection to


8.2 Explain the concepts of free movement of

people

competing products eg, Case 170/78 Commission v UK; manipulation of categories, eg, Case 112/84 Humblot v Directeur des Services Fiscaux; objective justification, eg, Case 140/79 Chemial Farmaceutici v DAF;

in relation to non-tariff barriers and measures having equivalent effect: nature of non-tariff barriers; Dassonville formula (Case 8/74 Procureur du Roi v Dassonville); distinctly and non-distinctly applicable; scope and effect of Art 36 TFEU derogations; trade rules: case law including Cases C-267-8/91 Keck & Mithouard;

the Cassis de Dijon (Case 120/78 Rewe-Zentrale v Bundesmonopolverwaltung für Branntwein) rule of reason: nature of mandatory requirements and the role of proportionality; recipe and labelling requirements; presumption of marketability

8.2 The concept of a ‘worker’ under Art 45

TFEU; autonomous concept: Case 75/63 Hoekstra v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten; working for another; economically viable: case law including, eg, Case 53/81 Levin v Staatsecretaris van Justitie, Case 139/85 Kempf v Staatsecretaris van Justitie, Case 66/85 Lawrie-Blum v Land Baden-Württemberg, Case 196/87 Steymann v Staatsecretaris van Justitie;

the rights of family members: relevant provisions of Directive 2004/38 and


8.3 Explain the extent and nature of the rights

deriving from EU social policy 8.4 Apply an understanding of substantive law

relating to a single market to a given situation



Regulation 1612/68;

restrictions permitted on grounds of public policy, security and health: arts 27-33 Directive 2004/38;

rights based on citizenship: Arts 20 and 21 TFEU and relevant case law, eg, Case C-85/96 Martinez Sala v Freistaat Bayern, Case C-184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve; relevant provisions of Directive 2004/38;

recognition of qualifications: directives 77/249, 98/5 and 2005/36; Case C-313/01 Morgenbesser v Consiglio dell’Ordine degli avvocati di Genova; free movement of services and establishment: Arts 49 and 56 TFEU; Directive 2006/123; receipt and provision of services; distinction between provision of services and establishment;

exceptions to free movement: derogations based on personal conduct and health

8.3 Principles of equal pay and equal treatment:

Art 19 TFEU, Art 157 TFEU, Directives, 86/613, 2000/78, 2004/113, 2006/54; Case 43/75 Defrenne v SABENA



implications, including remedies and


defences, where appropriate 9 Understand the substantive law

relating to competition 9.1 Explain the nature of anti-competitive

behaviour and the policy reasons for its prohibition

9.2 Explain the concepts of dominant position

and the economic arguments for prohibition of abuse

9.3 Apply an understanding of the substantive

law relating to competition to a given situation

9.1 Art 101 TFEU and the qualified prohibition on anti-competitive practices; definitions of competition and anti-competitive behaviour; nature of cartels and distribution agreements; agreements and concerted practices; vertical and horizontal arrangements (Regulation 2790/99); basic economic concepts: cross-elasticity, entry barriers, inter- and intra-brand competition; compartmentalisation of the market; exhaustion of intellectual property rights; permissible collaboration, eg, research and development (Regulation 2659/2000), joint ventures, ‘minor agreements’ (Commission Notice 2001); block and individual exemptions, including black, white and grey lists; investigative and adjudication procedures: Regulations 1/2003 and 773/2004

9.2 Art 102 TFEU and the absolute prohibition

on abuse of a dominant position; definitions of dominance and abuse; economic concepts: product market, geographic market, substitutability, entry barriers; categories of abuse: monopoly rent, predatory pricing, tying in, abusive rebates and discounts, refusal to supply; must fit and must match issues


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of European Union Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 7 Title:

Family Law

Level:

6

Credit Value:

15




1 Understand the underlying legal principles of marriage

1.1 Identify sources of relevant Family Law including statutes and common law

1.2 Explain common law definitions of

marriage 1.3 Analyse the requirements for valid

marriage

1.1 A clear understanding of the breadth of relevant legislation: eg, Marriage Acts 1949-1994, Matrimonial Causes Act 1973 (MCA 1973), Civil Partnership Act 2004 (CPA 2004), Gender Recognition Act 2004 (GRA 2004), Children Act 1989 (CA 1989), Family Law Act 1996 (FLA 1996), Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996)

1.2 Marriage as a legal relationship:

‘Voluntary union for life of one man to one woman to the exclusion of all others’; relevant case law and statutes, eg, Hyde v Hyde and Woodmansee (1866), Marriage Act 1949; an explanation of consortium rights

1.3 Explanation of capacity and formalities

in marriage, eg, one party must be male and the other female – the outcomes in Corbett v Corbett (1970); Bellinger v Bellinger (2001), Goodwin v UK (2002); I v UK (2002), or other relevant case law; the impact of Articles 8 and 12 European Convention on Human


1.4 Explain the importance of the Gender

Recognition Act 2004 1.5 Analyse the concept of domicile and

foreign marriages

Rights; a summary of the necessity of formalities and impact of jurisdiction in relation to a valid marriage; a summary of the 4 main types of ceremony recognised by law; analysis of how Marriage Act 1949 governs formalities, eg, must have 2 witnesses, and analysis of those defects which would invalidate a marriage under s25, s49 and s48 Marriage Act 1949

1.4 Explanation of Gender Recognition Act 2004;

which provides for a gender certificate to be issued which entitles applicant to a new birth certificate for their acquired gender; analysis of the criteria required to satisfy Gender Recognition Panel under s2 GRA 2004, and the effects of GRA on married applicants, eg, new ground for a voidable marriage and nullity petition must be issued within 6 months of the issue of interim gender recognition certificate

1.5 The importance of the concept of domicile:

governs an individual’s capacity to marry and validity of the marriage, as domicile links a person with a legal system; analysis of the ways in which it can be acquired; ie, application, capacity and validity of marriage;relevant case law Agulian v Cyganik (2006); circumstances when a marriage celebrated abroad will be recognised in England and Wales; the role of domicile and validity under English law; relevant case law and statute: eg, Cheni v Cheni (1962), Hussein v Hussein (1982), s47 MCA 1973


1.6 Analyse the importance of consortium in marriage

1.7 Apply the law on the underlying principles

of marriage to a given situation 1.8 Critically evaluate a given issue or situation


1.6 Analysis to distinguish obligations and rights conferred by marriage and how these rights can be lost



2 Understand the underlying legal

principles of adult partnerships 2.1 Analyse the legal differences between

marriage and cohabitation 2.2 Analyse the main provisions of the Civil

Partnership Act 2004

2.1 An understanding of the rights of partners in marriage, eg, financial support, rights of occupation, property award, children issues, rights to application of sec 8 orders under Children Act 1989; heterosexual cohabitation as an alternative to marriage; financial support; property rights; analysis of how cohabitation contracts are becoming popular due to social change and importance in financial matters on breakdown of a relationship; summary of how court may uphold such contracts as found in relevant case law such as, eg, Sutton v Mishcon de Reya and Another (2004); impact of Law Commission Report – Cohabitation: The Financial Consequences of Relationship Breakdown 2007; Cohabitation Bill

2.2 The purpose and features of CPA 2004, ie,

allowing same sex partners to register partnerships and have legal rights similar to those of married couples, eg, property rights, financial and inheritance provisions, pension rights; relevant case law, eg, Wilkinson v Kitzinger (2006); an analysis of the following CPA 2004 provisions: financial and property


2.3 Apply the law on the underlying legal

principles of adult partnerships to a given situation



awards on breakdown of civil partnership: s44 Civil Partnership Act 2004; Separation order: s56 Civil Partnership Act 2004; Articles 8, 12 and 14 ECHR.




principles of nullity in marriage 3.1 Explain statutory provisions of invalidity

and annulment in marriage 3.2 Analyse the legal consequences of a void

marriage 3.3 Analyse the legal consequences of a

voidable marriage

3.1 An explanation of sections 11, 12 and 13 of Matrimonial Causes Act 1973; and Family Law Act 1973; differentiation between void and voidable marriages; recognition of the importance of an overseas decree of nullity, divorce and legal separation as described in s46(1) and (2) Family Law Act 1986; relevant case law, eg, Singh v Singh (1971); Szechter v Szechter (1971); Hirani v Hirani (1982); H v H (1954); P v R (Forced Marriage: Annulment: Procedure) (2003)

3.2 An explanation of s11 of MCA 1973 and the

impact of bars under s13 MCA 1973 on the granting of an order; analysis of the main legal consequences of a void marriage, re property, descendants, inheritance and finance, eg, effects on the granting of an order on children, property and financial orders available to either spouse, effect on wills and inheritance, relevant case law

3.3 An explanation of s12 MCA 1973 and the

impact of bars under s13 MCA 1973 on the


3.4 Explain the jurisdiction of the courts in

England and Wales when considering petition cases for nullity

3.5 Explain, in outline, the acceptance of

foreign decrees of nullity by courts in England and Wales

3.6 Apply the law on the underlying legal

principles of nullity to a given situation 3.7 Critically evaluate a given issue or situation


granting of an order; analysis of the main legal consequences of a voidable marriage, re property, descendants, inheritance and finance, eg, effects of the granting of an order on property; Re Roberts (deceased) (1978), and financial orders available to either spouse; Matrimonial Causes Act 1973, and effect on wills; S.18A Wills Act 1837, and effects on inheritance; Inheritance (PFD) Act 1975.

3.4 An explanation of the requirements for

jurisdiction; an identification of the importance of domicile/habitual residence and its effects with supporting case law, eg, Kapur v Kapur (1985); Armstrong v Armstrong (2003); Mark v Mark (2006); Marinos v Marinos (2007)

3.5 Explanation of the requirements set out in

s46 Family Law Act 1986 recognising that if s46 is fulfilled, then it is still possible that the decree may not be recognised as found in s51 Family Law Act 1986




principles of dissolution of marriage, civil partnership and judicial separation

4.1 Explain the requirements for divorce

4.1 An explanation of divorce law as found in Matrimonial Causes Act 1973; ground for divorce S.3 (1) MCA 1973 and S.3(2) MCA 1973, divorce must be supported by one of the 5 facts under s1 MCA 1973; a clear


4.2 Analyse the requirements of a decree

absolute and decree nisi 4.3 Explain the law on divorce and dissolution

of religious marriages 4.4 Explain the legal requirements on

dissolution of Civil Partnerships 4.5 Analyse the requirements for judicial

separation

understanding of this provision; the bars to divorce as set out in s2 MCA 1973, and defences of S.5 and S.10 MCA 1973. Relevant case law for facts of divorce, particularly Clarkson v Clarkson (1930); Dennis v Dennis (1955); Cleary v Cleary (1974); Livingstone-Stallard v Livingstone-Stallard (1974); Thurlow v Thurlow (1976); Mouncer v Mouncer (1972) and Santos v Santos (1972)

4.2 Analysis of court’s requirements under s1(4)

MCA 1973; to include findings of reconciliation in Family Proceedings Rules 1991 and s6(1) MCA 1973; mediation and conciliation in divorce; schedule for the application of decree absolute available to both parties; circumstances when the court will delay granting of a decree absolute under MCA 1973

4.3 An explanation of the Divorce (Religious

Marriages) Act 2002 identifying why it was introduced, its key provisions and the remedies it provides

4.4 An explanation that Civil Partnership can

only be brought to an end by a court order or if one of the parties dies; Reference to S.37 and S.38 CPA 2004; the court has powers to grant 3 orders; a Dissolution order only if the parties have been married for a year; a Separation order which can be applied for at any time; an order of Annulment.

4.5 An explanation that parties to judicial


4.6 Apply the law on dissolution of marriage,

civil partnership and judicial separation to a given situation



separation can institute proceedings under s17 MCA 1973; ground for judicial separation is one of the 5 facts under s1 MCA 1973; a clear understanding of this provision; implications of a refusal under S.41 MCA 1973; analysis of the following: financial relief available on separation under ss23, 24 and 24A MCA 1973; parties relieved from duty to cohabit; neither party may succeed to property on the intestacy of the other; parties cannot re-marry



5 Understand statutory provisions for

protection from violence and molestation

5.1 Explain statutory provisions for protection from violence

5.2 Explain rights of occupation and orders

which can be obtained 5.3 Analyse those orders available for non-

5.1 An explanation of the purpose and consequences of: Family Law Act 1996 (Part IV) (identification of associated persons, cohabitants and relevant child under s62 FLA 1996); Domestic Violence, Crime and Victims Act 2004 (DVCVA); Protection from Harassment Act 1997 (PHA)

5.2 An explanation of the criteria under s33-38

FLA 1996; powers of the court to make orders; matters to be taken into account; balance of harm; duration of orders; regulatory orders; additional powers s40 FLA 1996; impact of Human Rights Act 1998. Relevant case law; Chalmers v Johns (1999) and B v B (Occupation Order)(1999)

5.3 Analysis of the importance of s42 Family


molestation and protection from violence 5.4 Apply the law on protection from violence

and non-molestation to a given situation 5.5 Critically evaluate a given issue or situation


Law Act 1996, clarifying court’s power to make an order/s as part of ancillary or other family proceedings under s42 FLA 1996; orders and criteria for without notice orders under s45 FLA 1996; undertakings: s46 FLA 1996; enforcement: s47 FLA 1996; relevant case law examples to include; C v C (Family Division)(1998), George v George (1986) and Vaughan v Vaughan (1973); consideration of the Protection from Harassment Act 1997 which states any person may apply for order; summary of requirements for order as set out in s3(3) PHA 1997



6 Understand provisions for family

property and ownership 6.1 Explain the effects on property rights of a

breakdown of relationships 6.2 Analyse the impact of express and implied

6.1 An explanation of the property rights of cohabitants, civil partners and married couples; the effects of relevant legislation: Married Women’s Property Act 1882 (MWPA) and the procedure to determine property rights under s17 MWPA 1882; the Law of Property Act 1925 which deals with legal and beneficial interests in land; Trusts of Land and Appointment of Trustees Act 1996 and powers of sale under ss14 and s15 TLATA 1996; Schedule 1 CA 1989 which deals with financial provisions for children

6.2 An analysis comprising of the following


trusts on family property 6.3 Analyse acquisition, protection and

enforcement of home rights in Family Law 6.4 Apply the law on provisions for family

property and ownership to a given situation 6.5 Critically evaluate a given issue or situation


headings at a minimum: monetary, gifts and family home; identification of implied trusts detailing different factors courts will take into account for spouses/civil partners and cohabitants clarifying impact of relevant case law, eg, Lloyds Bank Plc v Rosset (1990); Grant v Edwards (1986); Midland Bank v Dobson (1986); Oxley v Hiscock (2004); Stack v Dowden (2007); a summary of the powers of court to order sale of property under s17 MWPA 1882 and ss14 and s15 Trusts of Land and Appointment of Trustees Act 1996; analysis of Law Commission Report 2007 entitled Cohabitation: The Financial Consequences of Relationship Breakdown; impact of Human Rights Act 1998 Art 8 ECHR

6.3 Analysis of definition of home rights under

s30(2) FLA 1996; analysis of the 3 ways in which home rights can be acquired, including S30(9) FLA 1996 which extends home rights; analysis to include registration of rights



7 Understand provisions for financial

relief during and after marriage/civil partnership

7.1 Explain the financial relief available after marriage/civil partnership

7.1 An explanation of financial provision available after marriage: ancillary relief orders, eg, maintenance pending suit: s22 MCA 1973; periodical payment orders: s23(1)(a) MCA 1973; lump sum orders: s23(1)(c) MCA 1973; pension orders: fss25B


7.2 Analyse the factors considered by the court

in making an ancillary relief order 7.3 Analyse financial relief orders available for

children

and 25C MCA 1973; property adjustment orders and relevant case law; Mesher v Mesher (1980) and Martin v Martin (1977): s24 MCA 1973; Child orders and orders for sale: s24A MCA 1973;

7.2 Analysis of s25 MCA1973 factors - first

consideration to welfare of minor child; B v B (2002); clean break provisions in S.25A MCA 1973 and the S.25 statutory factors, and appropriate and relevant case law which includes: eg, White v White (2000) and its impact on financial relief, and subsequent case law, eg, Minton v Minton (1979); Cowan v Cowan (2002); Sorrell v Sorrell (2005); D v D & B Ltd (2007); M v M (2004); Miller v Miller (2006); McFarlane v McFarlane (2006); Charman v Charman (2007); L v L (Financial Relief) (2008); Lambert v Lambert (2003); Foster v Foster (2003); a summary of matters the court must consider when exercising its discretion to make orders; reference also to Government's White Paper “Supporting Families” 1998.

7.3 Analysis of the definition of “child of family”

under s52(1) MCA 1973; a clear understanding of those orders available for the benefit of children, eg, periodical payments orders: s23(1)(d) MCA 1973; lump sum orders: s23(1)(f) MCA 1973; property adjustment orders: ss24(1)(a) and (b) MCA 1973; a summary of matters the court must consider when exercising its discretion to make orders under s25(1) MCA 1973; court must consider criteria under


7.4 Explain the powers of the court to vary or

discharge orders of financial relief 7.5 Identify the impact of Human Rights Act

1998 on ancillary relief proceedings 7.6 Analyse the circumstances for an order of

financial relief during marriage/civil partnership

7.7 Analyse the legal requirements for

maintenance agreements 7.8 Apply the law on financial relief to a given



s25(4) MCA 1973 when making orders against a non- parent

7.4 A brief explanation of the powers to vary and

discharge as found under s31 MCA 1973; an identification of reasons why applications for variation and discharge mostly relate to periodical payments; a summary of factors the court must consider when exercising its discretion to make orders

7.5 The impact of Human Rights Act 1998

Articles 6 and 8 ECHR 7.6 Analysis of circumstances when orders may

be applied for and granted in the Family Proceedings Court; analysis of powers available to family courts under (DPMCA 1978); a summary of orders available under and factors under s1 and s2 DPMCA 1978; identification of welfare benefits available for spouse and children

7.7 An explanation of the formality requirements

when making a maintenance agreement; analysis of definitions as clarified under s34(2) MCA 1973; analysis of effects of ss34-36 MCA 1973 which contains special rules applied to agreements



8 Understand the legal basis of 8.1 Identify the legal basis of parentage in 8.1 Identification of who is the “parent” as a legal


parental responsibility family law 8.2 Analyse the factors the court will consider

in parentage identification cases 8.3 Analyse the concept of parental

responsibility

definition with relevance of legitimacy; a clear understanding of principles which determine parentage identified in s26 and s20(1) Family Law Reform Act 1969 (FLRA); the importance of Family Law Reform Act 1969; the impact of legitimacy in subsequent marriage; children of void and voidable marriages; children born by donor or artificial insemination; surrogacy; identification of evidence required to prove parentage. Reference to Human Fertilisation and Embryology Act 2008 and relevant case law; Re M (Sperm Donor:Father)(2003).

8.2 An explanation of the orders available from

the court to determine parentage; a summary of scientific tests to evidence parentage of child; consent requirement of child and inferences court can draw from refusal of consent; an analysis of the factors the court will consider in making orders, eg, child’s welfare is not the court’s paramount consideration in a decision for blood tests; the court can make order under s8 prohibiting steps or certain issues which may arise; the court can appoint guardian under s5(1) CA 1989

8.3 Analysis of parental responsibility definition

by s3(1) CA1989; parental responsibility can be held by more than 1 person at any time (s2(5) CA 1989); parental responsibility cannot be transferred or surrendered (s2(9) CA 1989); impact of HRA 1998 and Articles 8 and 14 ECHR 1998 and relevant case law; B v B (2000), child may apply for a declaration of paternity under S56 FLA


8.4 Identify how parental responsibility orders

can be acquired under CA 1989 and ACA 2002

8.5 Apply the law on parental responsibility to



1986; identification of the effects of Adoption and Childrens Act 2002 and common law parental rights and duties; relevant case law to include: Gillick v West Norfolk and Wisbech Area Health Authority (1985): Gillick competence test; Re A (a Minor)(Blood Transfusion)(1993); Re G (Parental Responsibility: Education) (1994); Dawson v Wearmouth (1999)

8.4 Identification of people who will have

parental responsibility automatically and people who will need to apply; legal principles in obtaining a parental responsibility order: parental responsibility order by agreement; parental responsibility order under s4(1)(a) CA 1989; identification of the impact of Adoption and Children Act 2002 (ACA); identification of how parental responsibility order can be lost and factors the court must consider under ss4(2a) and 4(3) CA 1989 with supporting cases, eg, Re P (terminating Parental Responsibility) (1993), Re P (Minors)(Parental Responsibility Order)(1997); Re H (a Minor)(Parental Responsibility)(1998)




9 Understand relevant legal provision

in relation to children 9.1 Explain the orders available for private

matters under the Children Act 1989 9.2 Analyse the availability of s8 orders under

s8 CA 1989 9.3 Analyse the effects of s8 orders in family

law

9.1 Principles of S.1 CA 1989; welfare, no order, no delay. An explanation of the orders available under s8 CA 1989; a summary of the lifespan of an order and the court’s powers to attach conditions or directions under s11 CA 1989; identification to include without notice orders and impact of article 6 ECHR

9.2 Analysis of other proceedings where s8 order

can be made as set out in s8(4) CA 1989; recognition that court can decide to make order of its own volition s10(1)(b); court can also make s8 order where there are no other proceedings in progress as in s10(2); analysis of who can apply under s10(4) CA 1989 and s4A CA 1989; a summary of who can apply for orders and limitations under s10(5) CA 1989; identification of who will need to seek leave of court to apply for an order and criteria court will follow as under s10(9) CA 1989; a clear understanding of bars on repeat applications; relevant case law, eg, Re M (a Minor) (1994); Re S (a Child Residence Order; Condition) (No 2) (2003); Payne v Payne (2001)

9.3 Analysis to identify effects on parental

responsibility of: non-parent under ss12(2) and (3) CA 1989, unmarried father under s4 CA 1989; identification of limitations under s13 CA 1989 in relation to changes in surname and travelling abroad; relevant case law, eg, Re H (Shared Residence; Parental Responsibility)(1995); D v D (Children)(Shared Residence Order) (2001);


9.4 Explain the powers of the court in family

assistance orders 9.5 Analyse the key legal principles of the

Children Act 1989 which courts consider in decisions regarding children

9.6 Analyse financial relief available for

children under the Children’s Act 1989

A v A (Shared Residence) (2004); Glaser v United Kingdom (2001); impact of Article 8 ECHR on s8 orders in family law to be included in analysis

9.4 A brief explanation of the orders which can

be made under s16 CA 1989 identifying provisions under the section to advise and assist person named in the order; a summary to support s37 CA 1989 directions; a clear understanding of the duration of the order; relevant case law, eg, S v P (Contact Application: Family Assistance Order) (1997); Re E (Family Assistance Order) (1999)

9.5 Analysis of: Paramount principle set out in

s1(1) CA 1989; Principle of Non-intervention under s1(5) CA 1989; Delay principle under s1(2) CA 1989, including requirements of a timetable to avoid delay: s11 CA 1989; impact of Article 6 & 8 EHCR to principles; analysis of factors set out in s1(3) CA 1989 with the use of relevant case law to illustrate application of the factors, and the criteria which court must consider in s10(9) when considering application for leave

9.6 Analysis of financial relief under Sch 1 CA

1989, identifying possible applicants and range of orders available; a clear understanding of the duration and guidelines courts observe in making financial orders; application of financial provisions available for children under Sch 1 CA 1989; relevant case law, eg, Hendricks v The Netherlands (1993); J v C (1970); Re K (a Minor) (1989);


9.7 Apply the law on legal provision in relation

to children to a given situation 9.8 Critically evaluate a given issue or situation


Re H (a Minor) (1990); Re G (2006) 9.7 Application of the law to a complex scenario 9.8 A reasoned opinion of likely legal




understanding of Family Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 63 First Line Family Law Advice and Unit 64 Family Law Advice and Casework


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Unit 8 Title:

Immigration Law

Level:

6

Credit Value:

15




1 Understand the framework of immigration control in the UK

1.1 Identify the sources of immigration law 1.2 Explain the exclusionary nature of

immigration control 1.3 Analyse the operation of immigration

control 1.4 Analyse the role of discretion in

immigration law

1.1 In particular, Immigration Act 1971, Nationality, Immigration and Asylum Act 2002, immigration rules in HC 395, Home Office policy documents (IDIs, APIs etc)

1.2 Right of abode; concepts of subject to

immigration control, leave to enter and remain; application and nature of immigration rules

1.3 Legal basis: Immigration Act 1971;

operation of entry clearance, leave to enter, leave to remain; personnel of immigration control; main immigration offences

1.4 Discretion to allow entry outside the

rules; key Home Office policies including carers; legitimate expectation; abuse of power


1.5 Apply an understanding of the framework of immigration control to a given situation



1.5 Application of understanding to a complex scenario



2 Understand the routes to admission for the purposes of employment or self-employment

2.1 Classify the different routes to employment and self-employment

2.2 Describe the features of and criteria for the

principal categories for entry for employment and self-employment

2.3 Analyse the benefits of different routes for

a person who potentially qualifies for several routes

2.4 Explain the rights of family members of

economic migrants

2.1 An explanation of the rationale for the Points Based System (PBS) and a clear differentiation of the categories within it

2.2 Nature of categories within Tier 1 PBS

(general, entrepreneur, post study work); basis of award of points under Tier 1; basis of award of points under Tier 2 PBS, requirement to be sponsored, applicability of the ‘resident labour test’; criteria for entry under Tier 5 PBS routes (temporary workers: creative and sporting, charity workers, religious, government authorised exchange and international agreement; and youth mobility scheme)

2.3 Eg, Tier 1 more flexible than Tier 2 for

the employee by allowing any form of economic activity rather than a specific job for a specific employer; Tier 1 does not require sponsorship by an employer (which is onerous for the employer and therefore unattractive to that employer); can qualify for settlement under Tiers 1 and 2 but not Tier 5

2.4 Right to join principal migrant; rules that

are applied (eg, maintenance and accommodation); right to work once in UK


2.5 Summarise the stages an economic migrant goes through on the road to settlement

2.6 Analyse the recent and forthcoming

changes to this area of law 2.7 Apply an understanding of the routes to

admission to a given situation 2.8 Critically evaluate a given issue or


2.5 Unified application under PBS; leave to enter; leave to remain; indefinite leave to remain application fees; knowledge of life in the UK

2.6 Knowledge of life in the UK test;

extended period before can apply for settlement; creation of PBS; basic awareness of previous routes to employment/self- employment and how to switch into PBS; plans for Tiers 3 and 5

2.7 Application of understanding to a

complex scenario 2.8 A reasoned opinion of likely legal


3 Understand the rules on the admission of family members

3.1 Identify the rules for entry, stay and settlement for spouses and partners, children and other relatives

3.2 Explain the application process from visa

to settlement

3.1 Knowledge of HC 395 immigration rules 277 to 295O, 296 to 316F, 317 to 319 covering spouses, civil partners, unmarried partners, fiancé(e)s/proposed civil partners; probationary period or immediate settlement; domestic violence and bereaved spouse rules; children; adopted children; dependent relatives; knowledge of the rules includes the criteria/qualifications for entry under these rules, the rules on entry clearance and switching into these categories within the UK

3.2 Entry clearance; leave to enter; periods

of leave granted; leave to remain; settlement; fees payable throughout; knowledge of life in UK test


3.3 Analyse the rules for maintenance and

accommodation without recourse to public funds

3.4 Apply an understanding of the immigration

rules for family members to a given situation



3.3 Understanding of ‘adequate’ being

equivalent to income support; overcrowding policy; one room is sufficient if there is exclusive use; additional recourse to public funds issue; relevant case law egs: ex p Arman Ali, Uvovo, KA (Pakistan) (2006) UKAIT 00065, MK (Somalia) (2007) EWCA Civ 1521; relevant parts of Home Office Immigration Directorate Instructions, eg Annex F to Chapter 8




4 Understand the other key UK immigration categories and rules

4.1 Identify the categories of entry and stay for students and their families

4.2 Explain the rules for the different

categories of visitor 4.3 Explain the rules for returning residents

4.1 HC 395 immigration rules 57 to 87F and 56K to 56M; covering students, prospective students, specialist students (nurses, doctors, writing up a thesis, sabbatical officers), exam re-sits, prospective students, family members of students

4.2 Immigration rules 40 to 56M covering

visitors, transit, private medical treatment, parents of children at school, marriage visitors, student visitors; an understanding of rules and policy on conducting business as a visitor

4.3 Knowledge of rules and policy on

returning residents, ie, immigration rules


4.4 Analyse the general grounds for refusal 4.5 Apply an understanding of these other key

UK immigration categories and rules to a given situation



18 to 20 and Immigration Directorate Instructions chapter 1, section 3 and annexes K, L, N, M, O and P

4.4 Covering immigration rules 320 and 321:

mandatory and discretionary refusals (particularly rules 320(7A) and (7B) and associated policies and concessions set out in UK Visas’ Entry Clearance Guidance chapter 26); refusal of leave to those with entry clearance by immigration officers




5 Understand modern British nationality law

5.1 Identify the different forms of British nationality

5.2 Differentiate between the different forms of

British nationality 5.3 Explain acquisition of British citizenship by

birth and by descent 5.4 Explain acquisition of British nationality by

5.1 British citizens; British Overseas Territories Citizens; British Overseas Citizens; British subjects; British Protected Persons

5.2 Right of abode; adult registration rights;

good character test; benefits to BOTC citizens under British Overseas Territories Act 2002; amended definition of ‘parent’; rules on transmission to next generation

5.3 Post-British Nationality Act1981

transmission by birth and by descent; definition of father

5.4 Requirements for registration of adults


registration (adults and minors) and naturalisation

5.5 Analyse the application of the provisions

on deprivation and renunciation of citizenship

5.6 Apply an understanding of modern British

nationality law to a given situation 5.7 Critically evaluate a given issue or


and minors; criteria for naturalisation; life in the UK

5.5 Circumstances which may lead to

deprivation of British Citizenship (eg, s40 and 40A BNA 1981); the process; right of appeal; renunciation and re-acquisition law and process (eg, s12-13 BNA 1981)




6 Understand the law governing the free movement of persons in the EEA

6.1 Explain the free movement rights of European Economic Area citizens

6.2 Analyse the free movement rights of third

country family members 6.3 Analyse protection against deportation

under EU free movement law

6.1 Which countries are members of the EC/EU and the EEA respectively and the role of Switzerland; different types of qualified person; identify rights under EC Treaties and Immigration (European Economic Area) Regulations 2006; right of initial residence; extended residence; permanent residence; right to be accompanied by family members; interpretation of these rights by UK courts

6.2 Family members; application of

provisions on extended family members; rights of entry; residence; permanent residence; different circumstances where rights can be retained independently of the EU national exercising Treaty rights: relevance of Metock v Ireland [2008]

6.3 Different periods of residence; different

permissible considerations


6.4 Explain the free movement rights of nationals of the Accession States 6.5 Explain the benefits to Turkish nationals of the Turkish Association Agreement 6.6 Apply an understanding of the law

governing the free movement of persons in the EU to a given situation



6.4 Different rights of A8 (2004 new members other than Malta and Cyprus) and A2 (2007 new members) nationals; right to self-employment; terms of workers’ registration scheme; creation of scheme for A2 nationals

6.5 Benefits of Ankara Agreement; freezing of immigration law in 1973 (more generous terms for business persons, more generous switching rules); right to renew work permit with same employer once granted after 1 year; same profession but different employer after 3 years; free access to labour market after 4 years




7 Understand the law of refugee status and asylum application process

7.1 Explain the legal definition of a refugee

7.1 Article 1A(2) of 1951 UN Convention Relating to the Status of Refugees as amended by the 1967 Protocol including ‘well founded fear’ (standard of proof, personal credibility and future risk elements); ‘of being persecuted’; ‘Convention reasons’; ‘protection’; with reference to the terms of the EU Qualification Directive and also relevant key case law, eg, Ravichandran (1996), Karanakaran (2000), Demirkaya (1999), Shah and Islam (1999), K and Fornah (2006); Temporary Protection Directive and its implications


7.2 Analyse the requirements of a claim for

refugee status 7.3 Analyse the cessation and exclusion

clauses of the Refugee Convention 7.4 Explain the process and relevant stages of

making a claim for asylum in the UK 7.5 Analyse the law on third country removals 7.6 Apply an understanding of the law of

refugee status and asylum application process to a given situation

7.2 A clear understanding of factors affecting

credibility/truthfulness; use of country information with regards to credibility and proving future risk; and more sophisticated concepts emerging from case law, eg, risk based on future activities, internal relocation, sufficiency of protection, conscientious objection, civil war and differential impact, persecution by state and non-state actors

7.3 Circumstances where cessation and/or

exclusion may arise and potential triggers for both; terms and application of s72 of Nationality, Immigration and Asylum Act 2002 and accompanying regulations

7.4 Screening; asylum interview; decision;

appeal structure; New Asylum Model; awareness of asylum support for welfare; type of status granted; travel documents; refugee family reunion rules and policy

7.5 Basic awareness of ‘Dublin II’ (Council

Regulation (EC) No 343/2003) and the hierarchy of criteria; challenges to decisions through judicial review; scheme of third country removals in Immigration and Asylum (Treatment of Claimants etc) Act 2004


complex scenario






8 Understand the law of human rights claims for protection and humanitarian protection

8.1 Explain the application of human rights law in an international protection context

8.2 Analyse the circumstances where an in-

country Article 8 claim might be successful 8.3 Explain the regime of humanitarian

protection

8.1 An understanding of the European Convention on Human Rights and Human Rights Act 1998 (applicability to Home Office and Asylum and Immigration Tribunal decisions; requirement to interpret; free standing right to challenge under section 7 HRA 98); human rights appeals and grounds within the First-tier Tribunal; terms and interpretation of articles, in particular Article 3 and Article 8 of the ECHR; fundamental Strasbourg and UK case law on both, eg, Ullah and Do v SSHD (2004), Ireland v UK (App. no. 5310/71), Soering v UK (App. no. 14038/88), Chahal v UK (App. no. 22414/93), Bensaid v UK (App. no. 44599/98), N v UK (App. no. 26565/05)

8.2 A clear understanding of the principles of

Article 8 case law, eg, Boultif v Switzerland (App. no. 54273/00), Uner v Netherlands (App. no. 46410/99), Razgar v SSHD (2004), Huang v SSHD (2007); understanding of circumstances where high tests and thresholds for Article 8 might be satisfied

8.3 An understanding of EU Qualification

Directive and definition of ‘serious harm’; indiscriminate violence protection; type of status granted and steps towards settlement; active reviews; family reunion


8.4 Summarise the discretionary leave policy 8.5 Apply an understanding of the law of

human rights claims for protection and humanitarian protection to a given situation



8.4 An understanding of DL policy on

unaccompanied minors; grants in response to Article 8 claims; type of status granted; steps towards settlement; active reviews




9 Understand the law on deportation and removal

9.1 Describe the law on and process of deportation

9.2 Compare the differences between

deportation and removal 9.3 Analyse the principles behind deportation 9.4 Apply an understanding of the law on

deportation and removal to a given situation

9.1 Liability for deportation; exclusion from deportation under s7 Immigration Act 1971; different stages of the process

9.2 Presumption in favour of deportation;

weight to be given to public safety issues; exclusion for 3 or 10 years; need to apply for revocation; likely detention in run up to any appeal

9.3 Who is likely to be considered for

deportation; arguing deportation cases based on Article 8 ECHR and immigration rule 364, using relevant key case law, eg, N (Kenya) (2004) EWCA Civ 1094, arguing reasonableness of relocation for third parties and case law on ‘insurmountable obstacles’


complex scenario



9.5 A reasoned opinion of likely legal implications, including remedies and defences, where appropriate

10 Understand the appeals process and other remedies

10.1 Describe the structure of the statutory appeals process

10.2 Explain the key provisions of the appeals

procedure rules 10.3 Analyse the nature of the reconsideration

process 10.4 Explain the possible uses of judicial review

in an immigration and asylum context 10.5 Analyse the utility of alternative complaint

mechanisms

10.1 Normal appeal to First-tier Tribunal; Upper-tier Tribunal; Court of Appeal; House of Lords; ECHR; also the parallel processes relating to the European Court of Justice and judicial review

10.2 Lodging appeals; time limits for appeals

and reconsideration applications; procedure for allegations of, and tests for accepting, out of time appeals and applications; case management powers; terms of rule 23 on asylum claim appeals

10.3 Test for ordering reconsideration; what

are errors of law; stages of reconsideration; review applications to High Court; extent to which issues can be limited at second stage reconsideration; relevant current case law on these issues, eg, DK (Serbia) (2006)

10.4 Fresh claims under immigration rule 353;

3rd country cases; failures to follow policies (and extent to which this can be remedied in the tribunal and/or courts); abuse of process; legitimate expectation

10.5 Eg: complaints to UK visas, UK Border

Agency, Parliamentary Ombudsman, local MP; how they can be used to promote client’s interests supplementary to or as an alternative to a legal remedy in the courts, and can be used to obtain


10.6 Analyse the strengths and weaknesses of

a case for bail made through the immigration bail application process

10.7 Apply an understanding of the appeals

process and other remedies to a given situation


compensation 10.6 Mandatory use of B1 form; 3 day listing

policy; information needed to apply for bail; sureties not essential but can be very helpful; what makes a good surety; role of personal recognizance






of Immigration Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 9 Title:

Land Law

Level:

6

Credit Value:

15




1 Understand the legal concepts of real property and personal property

1.1 Explain how the law categorises real and personal property

1.2 Explain the concept of relativity of title

and the relevance of possession 1.3 Explain what constitutes land and the

extent of that land 1.4 Explain the nature of a freehold estate in

land and the rights conferred on its owner

1.1 With reference to relevant authority, an explanation of the concepts of real property, personal property (including the distinction between chattels and chose in action), rights in rem and rights in personam

1.2 With reference to relevant authority

Distinguishing between ownership and possession and to apply the law to determine relative rights to property

1.3 With reference to common law and statutory

authority (including s205 Law of Property Act 1925 (LPA)) an explanation of corporeal and incorporeal hereditaments; how the courts apply the law to determine the distinction between fixtures and fittings; the truth of the maxim, ad coelum et ad inferos including an understanding of relevant authority.

1.4 The nature and definition of a legal freehold

(including the legal fees existing prior to the LPA); the prima facie rights of the legal owner,


1.5 Apply understanding of the

conceptualisation of property and land to a given situation



including rights to alienate and to possession 1.5 Application of understanding to a complex

scenario 1.6 A reasoned opinion of likely legal implications,

including remedies and defences, where appropriate

2 Understand the significance of legal and equitable property interests

2.1 Explain the estates and interests in land which are recognised by law and equity

2.2 Explain the remedies prima facie

available to a legal owner of property rights and to an equitable owner of property rights

2.3 Analyse the relationship between legal

and equitable interests 2.4 Apply understanding of legal and

equitable property interests to a given situation



2.1 The definition Section 1 LPA of those estates and interests in land which can exist in law and/or equity

2.2 Damages at common law and the range of

equitable remedies including actions against trustees

2.3 Analysis of the relative advantages and

disadvantages of legal and equitable interests including the range of remedies available and binding status of the same on third party purchasers using appropriate authority




3 Understand the principal ways in

which interests in land can be created expressly or by proprietary estoppel

3.1 Explain the formalities required for the express creation of legal interests

3.1 With reference to relevant authority the requirement for legal interests to be created by deed; the statutory requirements for a deed; limited exceptions to the same (for instance short leases)


3.2 Explain the formalities required for the express creation of equitable interests and the exceptions thereto

3.3 Explain the circumstances in which an

interest in land might arise by proprietary estoppel

3.4 Analyse the law on the application of

these rules 3.5 Apply the law on the creation of interests

in land to a given situation 3.6 Critically evaluate a given issue or


3.2 Explanation of the requirement for expressly created or transferred equitable interests to comply with s2 Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A); the exceptions therein (collateral contracts, merger, the saving in the Act for short leases and for implied trusts); explanation of the requirements for express trusts to comply with s53LPA including an understanding of relevant authority.

3.3 Explanation of the requirement for a

successful claim of proprietary estoppel in respect of an estate or interest in land with reference to the development of the doctrine through judicial authority; bars to the claim (principally equitable concepts of laches, “clean hands”, etc); remedies including relevant judicial authority relating to proportionality and the “minimum equity required to satisfy” the estoppel

3.4 Identifying and explaining the relevant law,

using appropriate authority, considering: judicial approaches to, particularly, s2LP(MP)A; the relationship between exceptions thereto, PE and implied trusts; a clear understanding of relevant judicial authority relating to the relationship between the doctrines

3.5 Application of the law to a complex scenario 3.6 A reasoned opinion of likely legal implications,



4 Understand the ways in which third party rights in both registered and unregistered land can be protected

4.1 Explain the law determining whether a purchaser of an unregistered estate will take free of third party legal or equitable interests (including those interests subject to the Land Charges regime)

4.2 Explain the circumstances under which

compulsory or voluntary registration of an unregistered estate arises

4.3 Explain how third party rights affecting a

registered estate can be protected 4.4 Analyse the doctrinal and policy

considerations in relation to the registered and unregistered systems

4.1 Definition of equity’s darling (including doctrine of notice); recognition that, prima facie, legal interests bind the world, but equity’s darling takes free of equitable interests; the impact of the Land Charges Act 1972 (LCA); requirements for protection by LCA; consequences of want of protection; overreaching

4.2 Explanation of the relevant provisions of the

Land Registration Act 2002 (LRA02); triggers for compulsory registration; circumstances under which an estate might voluntarily be registered; consequences of non-registration per se and by reference to a third party purchaser of the same estate or of a later interest in that estate; consequences of a failure to register

4.3 Explanation of the relevant provisions of the

LRA02 and relevant judicial authority in respect of those provisions and the provisions of s70(1) of the LRA25: the nature and effect of substantive registration and the interest subject thereto; noting on the register and the interests subject thereto; the categories of overriding interests; the rules for the overreaching of beneficial interests in the estate; consequences of want of protection of third party rights in terms of enforceability against third parties who come to own the legal estate; the nature and significance of a “registered disposition”

4.4 Consideration of the Mirror, Curtain and

Indemnity principles; whether the registration system complies with the principles; the


4.5 Apply the law on registered and

unregistered land to a given situation 4.6 Critically evaluate a given issue or


conflict between the interests of, and perceived need to protect “innocent” third parties and “unknowing” purchasers; the relevance of the perceived distinction between commercial and family interests


including remedies and defences, where appropriate; including: issues of notice, balancing rights of third parties and purchasers; ignorance of rights or the need to protect; fiscal policy; ownership by registration versus possession of deeds or of land

5 Understand the law relating to

trusts of land 5.1 Explain the formalities for the creation of

an express trust of land 5.2 Explain how a resulting or a constructive

trust can arise 5.3 Explain the concepts of joint tenancy and

tenancy in common in relation to a legal or equitable estate

5.1 Explanation with reference to relevant authority the formality requirements for the creation of an express trust of land, including s53LPA

5.2 Explanation of the equitable rules for the

determination of the existence, and the quantification, of a constructive or a resulting trust with reference to judicial authority and the modern evolution of the doctrines

5.3 The unities and the doctrine of survivorship;

the ownership of the legal estate as joint tenants by a maximum of four trustees; the equitable presumptions as to the way in which the equitable estate is held; the ways in which an equitable joint tenancy can be severed and the consequences of such severance including an understanding of relevant authority.


5.4 Explain the rights of trustee and beneficiary of a trust of land conferred by the Trusts of Land and Appointment of Trustees Act 1996 (TLA96)

5.5 Analyse the approach of the judiciary to

the determination of disputes over the beneficial ownership of land

5.6 Apply the law relating to trusts of land to a



5.4 Explanation of the relevant sections of TLA96; rights to occupy; to be consulted; relevant provisions for the resolution of disputes; including relevant judicial authority interpreting the same

5.5 Consideration of case law impacting this area,

including approaches of the judiciary over time to the use of implied trusts in determining property ownership on breakdown of relationship; the perceived inappropriateness of resulting trusts for this purpose; the constructive trust as a remedial device; and the relationship between implied trusts, s2LP(MP)A and proprietary estoppel



6 Understand the nature of

easements and profits 6.1 Explain the nature of easements and

profits 6.2 Explain the methods by which

easements can be created expressly and impliedly

6.1 Using relevant case law, an explanation of the criteria used to determine whether a right claimed can amount to an easement or profit; the distinction between them and permissive rights

6.2 Explanation of the rules for express creation

as above with reference to appropriate judicial and statutory authority. Creation by necessity, common intention, rule in Wheeldon-v-Burrows (1879), s62LPA: recognition of the availability of such methods by grant or by reservation including an understanding of relevant authority.


6.3 Explain how an easement can be

determined or extinguished 6.4 Analyse the prescription regime against

a background of doctrinal and policy considerations

6.5 Apply the law on easements to a given



6.3 Explanation that an easement may be

determined or extinguished by formal agreement between the dominant and servient tenement owners; unity of seisin; intensification; abandonment, arguably by estoppel

6.4 Explanation of the rules for establishing an

easement by long user: basic requirements of nec per vi, nec per clam, nec precario; pleas under common law, lost modern grant and the Prescription Act.; understanding of the policy considerations supporting and conflicting with the doctrine, including criticisms of the complexity of the law, and of the “fiction” foundation of the common law and lost modern grant doctrines including an understanding of relevant authority.



7 Understand the nature of

covenants affecting a freehold estate

7.1 Explain the distinction between restrictive, positive and personal covenants

7.2 Explain the formalities required for the

creation of covenants affecting freehold land

7.1 Based on relevant judicial authority, an explanation of how the courts classify covenants created in transfers of freehold estates or independently as restrictive, positive or personal

7.2 Recognition of the application of formality

requirement to the creation of freehold covenants


7.3 Explain the rules determining whether a third party purchaser is bound by, or benefits from, such a covenant

7.4 Explain how a covenant affecting

freehold land may be extinguished or modified

7.5 Analyse the use of covenants against a

background of doctrinal and policy considerations

7.6 Apply the law on covenants to a given



7.3 An explanation of the rules governing the running of the benefit and burden of freehold covenants in both law and equity, and the exceptions thereto; eg, Halsall-v-Brizell (1957), indemnity covenants etc including an understanding of relevant authority.

7.4 Agreement between the dominant and servient

tenement owners (recognising the difficulty of identifying the same), unity of seisin, estoppel, abandonment, the application of s84LPA and judicial approaches to that section

7.5 Consideration of: issues of private planning

control, value and user, competing concerns of above versus economic utility and sterility of land and costs of compliance; issues of obsolescence and effect on market value; the relevance of s84 in mitigating the perceived problem



8 Understand the nature of a

mortgage 8.1 Define a mortgage 8.2 Explain the formalities for the creation of

legal and equitable mortgages 8.3 Explain the protection afforded to a

mortgagor by equity and by the law

8.1 Explanation of definition in Santley-v-Wilde (1899)

8.2 Explanation of the application of formality

requirements to this area of law; the possibility of creation by estoppel; constructive trusts

8.3 With reference to relevant judicial and

statutory authority, the legal and equitable


8.4 Explain the circumstances under which a

mortgagee may enforce the mortgage 8.5 Explain the rules determining the priority

of multiple mortgages affecting the same registered or unregistered estate

8.6 Analyse the rules for protection of

mortgagors and for the enforcement of mortgages against a background of doctrinal and policy considerations

8.7 Apply the law on mortgages to a given



interventions including undue influence; Consumer Credit Act; collateral advantages; fetters on the right to redeem

8.4 With reference to relevant judicial and

statutory authority, the right to sue on the debt; right to possession; orders for sale; foreclosure; the discretion of the mortgagee to pursue or not pursue a given remedy; common law and statutory limitations, including those for mortgagors of dwelling houses

8.5 With reference to common law and statutory

rules (in particular the LRA02 and the LCA72), an explanation of the rules for determining the priority of competing interests in both registered and unregistered land

8.6 Consideration of the role and intervention of

common law, statute and equity; the need to balance competing economic and social policy considerations; changes in patterns of acquisition of residential land over history



9 Understand the nature of a

leasehold estate 9.1 Define the nature of a leasehold estate

9.1 With reference to relevant judicial and statutory authority, an explanation of the certainties for lease (term, rent and exclusive possession); exceptions to the rule, eg, service occupier; the distinction between lease and license to occupy in terms of both


9.2 Explain the formality requirement for the

creation of both legal and equitable leases


the benefit or burden of leasehold covenants might pass to the purchaser of the reversion or of the leasehold estate

9.4 Explain the circumstances in which

leasehold covenants can be enforced against third parties

9.5 Explain, in outline only, the nature of a

commonhold estate

substance and the rights of the parties 9.2 An explanation of the application of general

formality requirements as above: the types of leases; periodic tenancies; tenancies at will and at sufferance; exceptions to formality requirements for short leases, periodic tenancies etc

9.3 With reference to common law and statute

(particularly the Landlord and Tenant (Covenants) Act 1995 (LTCA95)), an explanation of the rules for the running of benefit and burden of leasehold covenants contained in both “old” and “new” leases; an explanation of the relevance of original parties’ privity of contract in both old and new leases; the form and relevance of authorised guarantee agreements; an explanation of methods of indirect enforcement by way of indemnities and the rule in Moule-v-Garrett (1871)

9.4 An explanation of the circumstances under

which a third party, eg, subtenant or licensee of the tenant, is subject to covenants contained in an “old” or a “new” lease by reference to relevant common law rules as to old leases and to the LTCA95 in respect of new leases

9.5 An explanation, in outline only, of the nature,

form and formality requirements for the creation of a commonhold estate; a recognition of the differences between commonhold, leasehold and freehold estates; an explanation of the advantages and


9.6 Analyse the law affecting leasehold

estates against a background of doctrinal and policy considerations

9.7 Apply the law on leasehold estate to a



disadvantages of each type of estate 9.6 Consideration of definition and identification of

exclusive possession; the need for rent or premium; changes in the regime for the running of covenants including the impact and effectiveness thereof in light of criticisms of the old regime; the significance of lease/license distinction in terms of enforcement by the original parties and whether a third party purchaser of the estate is bound (with particular reference to licence created by estoppel and licences coupled with an interest in the estate)



10 Understand how a trespasser may

become entitled to an estate in land

10.1 Explain the basic requirements for a claim of adverse possession


the right to remove a trespasser on unregistered land may become statute barred


10.1 Using relevant judicial authority, an explanation of the requirements of factual possession and intention to possess; want of permission; acknowledgements of title; relevance of owners future intended uses; notion of adverse possession

10.2 An explanation of the relevant provisions of

the Limitation Act, including exceptions to the usual period of 12 years; extinguishment of paper owner’s estate and new state for trespasser subject to certain third party rights; recognition that possession is key

10.3 Knowledge that the LRA02 disapplies LA; an


a trespasser on registered land may become entitled to be registered as proprietor

10.4 Analyse the law affecting trespassers

against a background of doctrinal and policy considerations

10.5 Apply the law on trespass to a given



explanation of the requirement for squatter’s application for registration after no less than 10 years; explanation of the procedure applied to such a claim including recognition that, unless the paper owner fails to respond to notice, the application can only succeed on identified and limited grounds; recognition that the squatter can make a further application two years later which is indefeasible subject to the exceptions contained in the LRA02

10.4 Consideration of issues of underlying policy:

economic sterility verses “theft of land”; the impact of Human Rights Act on both regimes; comparison of regimes





of Land Law Unit expiry date 31March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 10 Title:

Landlord and Tenant Law

Level:

6

Credit Value:

15




1 Understand the key features of leasehold property

1.1 Define leasehold property 1.2 Analyse the essential characteristics of a

lease 1.3 Analyse the concept of exclusive

possession 1.4 Distinguish a lease from a licence

1.1 Statutory definition: s205(1)(xxvii) Law of Property Act 1925; s149 LPA 1925; relevant case law: eg, Lace v Chantler (1944), Prudential Assurance Co. Ltd v London Residuary Body (1992)

1.2 Essential common law characteristics;

relevant case law: eg, Lace v Chantler (1944), Prudential Assurance Co. Ltd v London Residuary Body (1992); relationship with contract

1.3 Nature of exclusive possession including

specific knowledge of the principles in Street v Mountford (1985); general application and relevant case law: eg, Family Housing Association v Jones (1990), Westminster City Council v Clarke (1992); application in relation to shared occupation: eg, Mikeover v Brady (1989), Stribling v Wickham and Others (1989), Antoniades v Villiers (1989); criticisms: eg, differing judicial attitudes

1.4 Significance of the lease/licence distinction;


1.5 Apply an understanding of the key features

of leasehold property to a given situation 1.6 Critically evaluate a given issue of situation


judicial approaches to the lease/licence distinction; application in relation to residential and commercial leases; relevant case law: eg, Street v Mountford (1985) including recognised exceptions: eg, Booker v Palmer (1942), Errington v Errington and Woods (1952), Norris v Checksfield (1991) & Bruton v London Quadrant Housing Trust (1997); Criticisms of the lease/licence distinction and suggested abolition.




2 Understand the formal

requirements for the creation of a lease

2.1 Classify the types of tenancy recognised by English law

2.2 Determine whether formal legal

requirements have been met 2.3 Analyse the status of a lease on a given set

of facts

2.1 Fixed term; Periodic; Leases for lives and marriages; Perpetually renewable leases; Tenancies at will; Tenancies at sufferance; Tenancies by estoppel; relevant case law: eg, Javed v Mohammed Aquil (1991), Marjorie Burnett Ltd v Barclay (1981)

2.2 Contracts to grant leases, s2 Law of

Property (Miscellaneous Provisions) Act 1989; legal leases, s52 Law of Property Act 1925 and exceptions

2.3 Contracts to grant leases; legal and

equitable status; relationship between equitable leases and periodic tenancies and relevant case law: eg, Walsh v Lonsdale (1882); failed transfers and relevant case law: eg, First Post Homes v Johnson (1995); rights in relation to third parties; protection


2.4 Apply an understanding of the formal

requirements for the creation of a lease to a given situation

2.5 Critically evaluate a given issue of situation


of leases in relation to registered and unregistered title




3 Understand the express covenants

of a lease 3.1 Describe the scope of express covenants 3.2 Analyse the rules governing the regulation

of qualified covenants

3.1 Commonly encountered types of express covenant; covenants to pay rent; covenants to repair; user covenants; the “usual covenants”; criticisms, eg, the enforceability of absolute covenants, suggestions for reform

3.2 Qualified covenants against alienation:

Common law principles; Statutory rules eg, ss.19(1) & 19(1)(A), Landlord and Tenant Act 1927 and associated case law eg, International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd (1985), Straudley Investments Ltd v Mount Eden Land Ltd (1996); Statutory duty, notice procedures and burden of proof under Landlord and Tenant Act 1988. Qualified covenants against alterations and improvements: Differences between alterations and improvements; Common law principles; Statutory rules eg, s.19(2) Landlord and Tenant Act 1927 and associated case law eg, Lambert v FW Woolworth & Co. Ltd (No.2) (1938); Compensation for improvements, eg. s. 3(1)(a) Landlord and Tenant Act 1927;


3.3 Analyse the rules governing the enforceability of covenants following assignment or sub-letting

3.4 Apply an understanding of the express

covenants of a lease to a given situation 3.5 Critically evaluate a given issue of situation


Assessment of the effectiveness of qualified covenants; Criticisms eg. suggested abolition by the Law Commission.

3.3 Position at common law; effect of the

Landlord and Tenant (Covenants) Act 1995; indemnities, authorised guarantee agreements


scenario, eg, identification of whether there has been a breach of the express obligations of a lease



4 Understand the obligations implied

in a lease 4.1 Analyse the obligations implied in a lease by

common law 4.2 Analyse the obligations imposed by statute

in relation to repair

4.1 Non-derogation from grant and relevant case law: eg, Browne v Flower (1911), Kenny v Preen (1963), Southwark LBC v Mills (2001); quiet enjoyment and relevant case law: eg, Birmingham, Dudley & District Banking Co v Ross (1888), Aldin v Latimer Clark, Muirhead & Co (1894); common law obligation to pay rent; tenant like user; doctrine of waste; common law obligations in relation to repair and criticisms, eg, the limitation in scope

4.2 Statutory repairing obligations especially

under ss11 – 16 of the Landlord and Tenant Act 1985; associated common law principles, for example, in relation to the meaning and standard of repair; relevant case law: eg, O'Brien v Robinson (1973), Hopwood v. Cannock Chase District Council


4.3 Determine whether there has been a breach

of any of the implied obligations 4.4 Apply an understanding of the obligations

implied in a lease to a given situation 4.5 Critically evaluate a given issue of situation


(1975), British Telecommunications plc v Sun Life (1995); s11(A) Landlord and Tenant Act 1985; Defective Premises Act 1972

4.3 An explanation of breach in relation to the

implied common law or statutory obligations; available remedies, eg, damages, set-off, injunctions




5 Understand the obligations and

duties imposed on landlord and tenant in relation to third parties

5.1 Explain the extent of any criminal or civil liability following an eviction

5.2 Analyse the duties owed to lawful visitors

and trespassers 5.3 Analyse the obligations owed to third parties

in the tort of nuisance

5.1 An explanation of criminal and civil liability under Protection from Eviction Act 1977; minimum periods of protection; statutory tort of unlawful eviction

5.2 Occupiers Liability Act 1957: implications for

landlord or tenant; application to landlord and tenant: situations when liability may arise; position in relation to independent contractors; position in relation to third parties; relevant case law: eg, Wheat v Lacon (1966), Roles v Nathan (1963); defences; Occupiers Liability Act 1984: implications for landlord or tenant; Defective Premises Act 1974.

5.3 Implications for landlord or tenant;

application to landlord and tenant: situations


5.4 Apply an understanding of the third party

obligations and duties imposed on landlord and tenant to a given situation



when liability may arise; position in relation to neighbours; position in relation to other tenants and third parties; relevant case law: eg, Sampson v Hodson-Pressinger (1981); defences, including reasonableness; remedies, eg, damages and the availability of injunctions


scenario, eg, identification of whether a landlord or tenant is in breach of any of their obligations in relation to third parties



6 Understand termination and remedies

6.1 Explain the common law methods of termination

6.2 Explain how a party terminates a lease at

common law 6.3 Analyse the remedies available for breach

of covenant or other obligation

6.1 Effluxion of time; notice to quit; break clauses; rescission; surrender; merger; enlargement; disclaimer; relevant case law; the impact of statutory intervention, eg, Housing Act 1988

6.2 Application of the common law rules

governing termination, especially in relation to effluxion of time and notice to quit; relevant case law: eg, Reed Personnel Services v American Express Ltd (1996), Centaploy v Matlodge Ltd (1973) & Barrett v Morgan (2000)

6.3 Principal remedies available for breach of

covenant: Distress, including the impact of the Human Rights Act and Fuller v Happy Shopper Ltd (2001); Forfeiture, current procedure and proposals for reform; Commercial Rent Arrears Recovery (CRAR)


6.4 Apply an understanding of termination and

remedies to a given situation 6.5 Critically evaluate a given issue of situation


scheme. 6.4 Application of understanding to a complex



7 Understand the operation of the

Rent Act 1977 in relation to residential leases

7.1 Identify whether a given tenancy will qualify for protection under the Rent Act 1977

7.2 Identify the circumstances in which

possession will/may be granted 7.3 Analyse the impact of the Rent Act 1977 7.4 Apply an understanding of the operation of

the Rent Act 1977 to a given situation 7.5 Critically evaluate a given issue of situation


7.1 Protected tenancies: qualifying requirements and statutory exclusions and relevant case law, eg, Curl v Angelo (1948), Horford Investments v Lambert (1976), Hampstead Way Investments v Lewis-Weare (1985); statutory tenancies: succession rules (as amended); relevant case law, eg, Tickner v Hearn (1960), Fitzpatrick v. Sterling Housing Association Ltd (1997), Ghaidan v Mendoza (2004)

7.2 Grounds for possession: mandatory and

discretionary grounds, ss98 & 100 Rent Act 1977, sch.15 Rent Act 1977; relevant case law, eg, Lal v Nakum (1981), Lipton v Whitworth (1994)

7.3 Underlying aims: rent control and security of

tenure; criticisms and limitations; impact on lease/license distinction; statutory amendments





8 Understand the operation of the

Housing Act 1988 in relation to residential leases

8.1 Identify whether a given tenancy will qualify for protection under the Housing Act 1988

8.2 Distinguish an assured from an assured

shorthold tenancy 8.3 Identify the circumstances in which

possession will/may be granted 8.4 Analyse the impact of the Housing Act 1988 8.5 Explain the scope of legislation relevant to

private sector lettings 8.6 Apply an understanding of the operation of

the Housing Act 1988 to a given situation 8.7 Critically evaluate a given issue of situation


8.1 Qualifying requirements, statutory exclusions and relevant case law: eg, Curl v Angelo (1948), Horford Investments v Lambert (1976), Trustees of Henry Smith's Charity Kensington Estate v Wagle (1990); succession rules

8.2 Creation and notice requirements, eg, s20

Housing Act 1988; Housing Act 1996 amendments; grounds for possession; other principle differences, eg, security of tenure, rent review

8.3 Grounds for Possession: mandatory and

discretionary grounds, ss7, 9 & 89 Housing Act 1988; notice requirements, s8 Housing Act 1988; possession procedures

8.4 Underlying aims eg. rent control and

security of tenure; Impact of the Housing Act 1996; Significance of the lease/license distinction; Criticisms and limitations of the Act; Proposals for reform e.g. Renting Homes, Law Commission Report No. 297.

8.5 Deposit Schemes; relevant safety

regulations 8.6 Application of understanding to a given



9 Understand the regulation of long residential tenancies

9.1 Identify whether a tenancy will qualify as a long residential tenancy

9.1 Qualifying requirements under the Leasehold Reform Act 1967 and the


9.2 Explain the security of tenure provisions

relevant to long residential tenancies 9.3 Analyse the effect of the enfranchisement

and leasehold extension rules 9.4 Analyse the principal regulations that

govern the management of long residential tenancies

9.5 Apply an understanding of the regulation of

long residential tenancies to a given situation



Leasehold Reform, Housing and Urban Development Act 1993

9.2 Security of Tenure; grant of new lease;

possession and grounds; procedure 9.3 Enfranchisement rules under the Leasehold

Reform Act 1967, Landlord and Tenant Act 1987 and the Leasehold Reform, Housing and Urban Development Act 1993; scope; limitations

9.4 Regulation of service charges and

management fees; right to manage; provisions of the Commonhold and Leasehold Reform Act 2002; limitations, eg, scope and practical application

9.5 Application of understanding to a given



10 Understand the regulation of

business tenancies 10.1 Identify whether a given tenancy will

qualify as a business tenancy 10.2 Explain the procedures applicable to the

continuation, termination and renewal of business tenancies

10.1 Qualifying requirements under s23, Landlord and Tenant Act 1954; statutory exclusions; relevant case law, eg, Brace v Read (1963), Addiscombe Garden Estates v Crabbe (1956), Groveside Properties Ltd v Westminster Medical School (1983)

10.2 Continuation, s24 Landlord and Tenant Act

1954; statutory and preserved common law methods of termination, s27 Landlord and Tenant Act 1954; notice procedures


10.3 Identify the circumstances in which a

landlord may resist the grant of a new tenancy

10.4 Analyse the statutory regulation of

business premises 10.5 Apply an understanding of the regulation of

business tenancies to a given situation 10.6 Critically evaluate a given issue of situation


under s25 Landlord and Tenant Act 1954; renewal provisions including agreed tenancies, variation of terms and interim rent

10.3 Grounds of opposition, s30 para (a)-(f)

Landlord and Tenant Act 1954 and relevant case law: eg, Capocci v Goble (1987) and Yoga for Health Foundation v Guest and another (2002); compensation for disturbance and improvements, s30 Landlord and Tenant Act 1954

10.4 Underlying aims; criticisms and limitations;

opting out 10.5 Application of understanding to a complex





of Landlord and Tenant Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 11 Title:

Planning Law

Level:

6

Credit Value:

15




1 Understand the legal framework relating to land use and development in England and Wales

1.1 Identify the principal planning legislation, both primary and secondary

1.2 Explain the main features of the historical

development of the planning legislation 1.3 Describe the central and local

administration of the planning system

1.1 Town and Country Planning Act 1990 (TCPA) as amended by the Planning and Compensation Act 1991 (PCA) and the Planning and Compulsory Purchase Act 2004 (PCPA); Planning (Listed Buildings and Conservation Areas) Act 1990 (LBA); Planning Act 2008 (PA);delegated legislation

1.2 Early planning controls; Town and Country

Planning Act 1947 and subsequent developments, eg, the Town and Country Planning Acts of 1968 and 1971

1.3 The role of Secretary of State responsible for

planning; planning policy statements and circulars; legislative and administrative functions; regional planning bodies; local planning authorities (LPAs) - forward and regulatory planning functions; ministerial responsibility for historic buildings; English Heritage; arrangements for Greater London; in Wales, the role of the National Assembly and the Welsh ministers; national parks


1.4 Explain the impact of the Human Rights

Act 1998 (HRA) on planning law 1.5 Analyse the key challenges facing the

legal framework for land use and development in England and Wales

1.6 Apply an understanding of the legal

framework relating to land use and development in England and Wales to a given situation



1.4 Relevant articles of European Convention and

application of HRA; ie, Article 1, First Protocol; Article 6(1) and Article 8; relevant case law: eg, R v SSETR, ex p Alconbury Developments Ltd, (2001); South Bucks DC v Porter (2001)

1.5 Streamlining the planning process for nationally significant infrastructure projects (NSIPs); PA 2008 – Infrastructure Planning Commission; national policy statements; categories of NSIPs; development consent orders – procedure and legal effect; enforcement. Proposals for further reform


1.7 A reasoned opinion of likely legal implications,


2 Understand the system of

development plans 2.1 Explain the system of development plans

that preceded the Planning and Compulsory Purchase Act 2004 (PCPA)

2.2 Explain the system of development plans

that followed the PCPA 2004

2.1 An explanation of the structure of the system; Local and Unitary Development Plans (UDPs); transitional arrangements

2.2 The objective of sustainable development;

regional planning; ie, the Regional Spatial Strategy (RSS): form and content and procedures for revision; local development planning; ie, the Local Development Framework (LDF) and constituent planning documents; procedures for preparation of Development Plan Documents (DPDs); development plans in Wales and Greater


2.3 Apply an understanding of development

plans to a given situation 2.4 Critically evaluate a given issue or


London; role of Strategic Environmental Assessment (SEA). Proposals for reform




3 Understand the legal meaning of

development 3.1 Explain the law relating to operational

development 3.2 Explain the law relating to material

change of use

3.1 The definition of development in s55 TCPA; the concept of “operation”; building, engineering, mining and other operations; operations excluded from development; judicial tests for operational development; demolition; relevant case law: eg, Parkes v SSE (1978); Cheshire CC v Woodward (1962); Barvis v SSE (1971); Fayrewood Fish Farms v SSE (1984); Coleshill & District Investments Ltd v MHLG (1969)

3.2 The definition of development in s55 TCPA;

concept of “use”; uses excluded from development; the Use Classes Order 1987; material change of use: general principles; the planning unit; incidental and composite uses; intensification of use; the loss of existing use rights: extinguishment and abandonment; cases of doubt: Certificates of Lawfulness of Proposed Use and Development (CLOPUDs); relevant case law: eg, Wallington v SS Wales (1991); Eastleigh BC v First SS (2004); E Barnet UDC v BTC (1962); Burdle v SSE (1972); Guildford RDC v Penny (1959); Hartley v MHLG (1969); Petticoat Lane Rentals v SSE (1971); Jennings Motors v SSE (1982); White v SSE (1989); Pioneer Aggregates v SSE


3.3 Apply an understanding of the relevant

law to a given situation 3.4 Critically evaluate a given issue or


(1983) 3.3 Application of understanding to a complex

scenario; eg, analysis of the nature of development and need for planning permission in application to a scenario

3.4 A reasoned opinion of likely legal implications,


4 Understand the law relating to the

obtaining of consent for development

4.1 Explain the concept of permitted development and deemed planning permission

4.2 Describe the legal principles relating to

express planning applications 4.3 Identify the legal principles relating to

Environmental Impact Assessment (EIA)

4.1 General Permitted Development Order 1995 (GPDO); Special Development Orders (SDOs); Local Development Orders (LDOs); deemed planning permission; Enterprise Zones (EZs) and Simplified Planning Zones (SPZs); Article 4 directions

4.2 Types of planning application; form and

content of planning applications, and design and access statements; General Development Procedure Order 1995 (GDPO); notification of owners; publicity and consultation; repeat applications and twin-tracking; relevant case law: eg, Main v Swansea CC (1985); R (Gavin) v LB Haringey (2003)

4.3 The need for EIA, ie Schedule 1 and 2

development; the environmental statement; procedures and consequences of non-compliance; relevant case law: eg, Berkeley v SSETR (No 1) (2001); R (Barker) v Bromley LBC (2006); R v N Yorks CC, ex p Brown (1999); R v Durham CC, ex p Huddleston (2000); R (Wells) v SSTLR (2004); R(Baker) v Bath and North Somerset DC (2009)


4.4 Explain the legal principles relating to the determination of planning applications 4.5 Explain the role of planning obligations in

development control 4.6 Explain the principles relating to planning

appeals, applications to the High Court and judicial review

4.4 The status of the development plan; “material

considerations”; validity of planning conditions, ie judicial tests; duration of planning permission; commencement of development; completion notices; relevant case law: eg, Edinburgh CC v SSE (1998); Stringer v MHLG (1971); R v Westminster CC, ex p Monahan (1989); Collis Radio v SSE (1975); W Midland Probation Committee v SSE (1998); Gateshead MBC v SSE (1994); Newbury DC v SSE; R v Hillingdon LBC, ex p Royco (1974); Bristol CC v Anderson (2000) Hall v Shoreham UDC (1964); Grampian RC v Aberdeen DCC (1984)

4.5 Old planning agreements; planning obligations

under s106 TCPA; formalities and enforcement; modification and discharge; judicial tests for validity and materiality; Community Infrastructure Levy (CIL) – statutory framework under Part 11 PA 2008 as supplemented by the Community Infrastructure Levy Regulations 2010; agreements under Highways Act s278; relevant case law: eg, Jelson v Derby CC (2002); Windsor & Maidenhead RBC v Brandrose (1983); Good v Epping Forest DC (1994); R v Plymouth CC, ex p S Devon Co-operative Society (1993); Tesco Stores v SSE (1995)

4.6 Appeals to the Secretary of State under s78

TCPA against planning decisions; types of planning appeal; transferred and non- transferred cases; inquiry procedure and written representations procedure; costs; appeals under s288 TCPA; applications for


4.7 Describe the principles relating to the revocation and modification of planning permission 4.8 Apply the law relating to the obtaining of

consent for development to a given situation



judicial review; procedures, standing and time-limits; relevant case law: eg, Seddon Properties v SSE (1978); Save Britain’s Heritage v SSE (1991); R v Bassetlaw DC, ex p Oxby (1998); Okolo v SSE (1997); Buxton v MHLG (1961); R v Somerset CC, ex p Dixon (1997); R v N Somerset DC, ex p Garnett (1997); R (Kides) v Cambridgeshire DC (2002); R v Hammersmith & Fulham LBC, ex p Burkett (2002)

4.7 Revocation and modification orders;

discontinuance orders; rights to compensation; relevant case law: eg, Pennine Raceway Ltd v Kirklees (1983); Canterbury CC v Colley (1993); Alnwick DC v SSETR (2000)



5 Understand the law relating to the

enforcement of development control

5.1 Explain the legal principles relating to enforcement notices

5.1 Enforcement notices; time limits; service and content; nullity and invalidity; enforcement appeals; injunctions; stop notices; Planning Contravention Notices (PCNs); Temporary Stop Notices (TSNs); Breach of Condition Notices (BCNs); criminal offences under s179 TCPA 1990 (Enforcement notice); s187 TCPA 1990 (Stop notice); s171D TCPA 1990 (PCN); s171G TCPA 1990 (TSN); s 187A TCPA (BCN); relevant case law: eg, Sage v SSETR (2003); Fidler v SSCLG (2010); Stevens v LB


5.2 Describe the principles relating to

certificates of lawfulness 5.3 Apply the law relating to the

enforcement of development control to a given situation



Bromley (1972); Miller-Mead v MHLG (1963); R v Greenwich LBC, ex p Patel (1935); R v Tower Hamlets LBC, ex p Ahearn (1989); Nelsovil v MHLG (1962) R v Wicks (1998); S Buckinghamshire DC v Porter (2003)

5.2 Certificates of Lawfulness of Existing Use or

Development (CLEUDs); relevant case law: eg, Nicholson v SSE (1998); Panton v SSETR (1999); Staffordshire CC v Challinor (2007); Welwyn Hatfield Council v SSCLG (2010)



6 Understand the law relating to

historic buildings and areas 6.1 Explain the law relating to buildings listed

as being of special architectural or historic interest

6.2 Describe the legal provisions relating to

conservation areas

6.1 The statutory list; the role of English Heritage; definition of a listed building; Building Preservation Notices (BPNs); listed building consent; listed building enforcement; appeals; repair of listed buildings; criminal offences; the role of Cadw in the protection of the historic environment in Wales; relevant case law: eg, Debenhams Plc v Westminster CC (1987); Kennedy v SS Wales (1996); Shimizu (UK) Ltd v Westminster CC (1987); R v Wells Street Metropolitan Stipendiary Magistrate, ex p Westminster CC (1986); R v Leominster DC, ex p Antique Country Buildings (1988); Robbins v SSE (1989)

6.2 Designation of conservation areas; legal

consequences of designation; enforcement in


6.3 Explain the law relating to ancient

monuments and areas of archaeological importance

6.4 Apply the law relating to historic buildings

and areas to a given situation 6.5 Critically evaluate a given issue or


conservation areas; relevant case law: eg, R v Canterbury CC, ex p Halford (1992); S Lakeland DC v SSE (1992)

6.3 Protection under the Ancient Monuments and

Archaeological Areas Act 1979; scheduled monuments; ancient monuments; archaeological research facilities; protection under planning control



7 Understand the principles relating

to special planning controls and special cases

7.1 Explain the law relating to nature conservation and landscape protection

7.2 Explain the law relating to the protection

of trees and hedgerows 7.3 Explain the legal principles relating to the

control of outdoor advertising

7.1 National parks; Sites of Special Scientific Interest (SSSIs); Areas of Outstanding Natural Beauty (AONBs); Conservation (natural habitats, etc) Regulations 1994; green belts

7.2 Tree preservation orders (TPOs); TPO

consent; principles of enforcement; protection of hedgerows under the Hedgerows Regulations1997; relevant case law: eg, Kent CC v Bachelor (1976); Bullock v SSE (1980); Maidstone BC v Mortimer (1980); R v Brightman (1990); Perrin v Northampton BC (2006); Palm Developments v SSCLG (2009)

7.3 The advertisement regulations 2007; principles

of control; express and deemed consent; exceptional cases; enforcement; areas of special control; relevant case law: eg, Newport BC v SS Wales (1997); G Yarmouth BC v SSE (1987); O’Brien v Croydon LBC (1999); Butler


7.4 Explain the law relating to the control of

caravan sites 7.5 Explain the position of Crown land under

the planning legislation 7.6 Describe the position regarding

development by LPAs 7.7 Explain the provisions under planning

law regarding mineral and waste development

7.8 Apply the law relating to special planning

controls and special cases to a given situation



v Derbyshire CC (2005) 7.4 Caravan Sites and Control of Development Act

1960; definition of “caravan”; requirement for and issue of site licence; conditions

7.5 Meaning of Crown land; abolition of Crown

immunity under PCPA; special procedures and exceptional cases

7.6 Rules relating to the obtaining of planning

permission by local planning authorities; Town and Country Planning General Regulations 1992; relevant case law: eg, Steeples v Derbyshire CC (1984); R v Lambeth BC, ex p Sharp (1984); R v Camden LBC, ex p Cummins (2002)

7.7 Specific provisions relating to mineral

development; Interim Development Order permissions (IDOs); review of minerals permissions; EIA; National Waste Strategy; waste and development plans



8 Understand the powers relating to

land acquisition in planning law 8.1 Explain the principles relating to

compulsory purchase for planning purposes

8.1 Compulsory purchase for planning purposes under TCPA, s226; powers of acquisition; procedures under the Acquisition of Land Act 1981 and rights to compensation (NB: an awareness of compensation rights, but not the


8.2 Describe the role of inverse compulsory

purchase in the planning legislation, ie purchase and blight notices

8.3 Apply the law relating to land acquisition

to a given situation 8.4 Critically evaluate a given issue or


legal rules relating to the assessment of compensation); relevant case law: eg, Alliance Spring Co Ltd v First SS (2005); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton CC (2010)

8.2 Land incapable of reasonably beneficial use:

purchase notices; planning blight: blight notices; procedures; role of the Lands Tribunal and rights to compensation; (NB: an awareness of compensation rights, but not the legal rules relating to the assessment of compensation); relevant case law: eg, Adams & Wade Ltd v MHLG (1965); General Estates Ltd v MHLG (1965); Brookdene Investments Ltd v MHLG (1970); Colley v SSE (1998)





of Planning Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 12 Title:

Public Law

Level:

6

Credit Value:

15




1 Understand the key features of UK public law

1.1 Explain the sources of public law and their interrelationship

1.2 Analyse the impact on UK public law of

the law of the European Union 1.3 Analyse the impact of international law

on UK public law

1.1 The elements which typically constitute UK public law, eg, the idea of “the rule of law”, the source and nature of the UK constitution; civil liberties and human rights in the UK; the administration and review of UK law through its public institutions and bodies

1.2 The institutions of the EU and their functions;

the EU legislative process; the categories of EU primary and subordinate legislation; direct effect ; eg, Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) CJEC EU law eg, Costa v ENEL (1964) CJEC takes precedence over UK domestic law subject to the judgement in MacCarthys v Smith (1979)

1.3 Key sources of international law in domestic

English law are treaties and customary international law; the relationship between international law and domestic law is one of dualism whereby the two systems function separately and is regulated by two key principles: (a) the principle non-justiciability;


1.4 Apply an understanding of the key

features of UK public law to a given situation



and (b) the principle of no direct effect 1.4 Application of understanding to a complex



2 Understand the meaning of “the

rule of law” 2.1 Explain the key elements which make up

the rule of law in the UK

2.1 The exposition of Dicey on the rule of law in Introduction to the Study of the Law of the Constitution (1885); an explanation of the following elements identified by Tom Bingham: The Rule of Law (2010): ie, the law must be accessible, intelligible, clear and predictable: eg, Fothergill v Monarch Airlines Ltd (1981); questions of right and liability should be resolved by law and not the exercise of discretion: eg, Scott v Scott (1913); the law of the land should apply equally to all (Denning: “be you ever so high the law is above you”): eg, Gouriet v Union of Post Office Workers (1977); the law must afford adequate protection for human rights: eg, Engel v The Netherlands (No 1) (1976); the law must deal with the resolution of civil disputes without inordinate cost or delay: eg, R v Lord Chancellor Ex p Witham (1978); ministers and public officers must exercise the powers conferred on them according to the law, reasonably and in good faith: eg, R (on the application of S) v Secretary of State for the Home Department (2006); the adjudicative procedures provided by the state should be fair: eg, R v Sussex Justices Ex p McCarthy (1924); the state should comply with its obligations in international law: eg,


2.2 Analyse the factors which have the

potential to undermine the rule of law in the United Kingdom

2.3 Apply an understanding of the elements

constituting the rule of law to a given situation



The Christina (1934) 2.2 The factors include: pressure from the Executive: eg, adverse government reaction to judgments on control orders; deference on the part of the High Court: eg, Secretary of State for the Home Department v Rehman (2001); international pressure: eg (Corner House Research and Another) v Director of the Serious Fraud Squad (2008) HL; civil unrest: eg, industrial disputes such as the miners’ strike in 1984 and civil disobedience eg, resistance to the Poll Tax 2.3 Application of understanding to a complex



3 Understand the nature of the UK constitution

3.1 Analyse the sources of the constitution 3.2 Analyse the consequences of

constitutional changes effected by devolution

3.1 The main sources: statutes defined as “constitutional statutes” , eg, the Act of Settlement 1700; see Thoburn v Sunderland City Council (2002) for a discussion of constitutional statutes; constitutional case law: eg, Entick v Carrington (1765); law and custom of Parliament; constitutional conventions; proposals for reform; eg, a Bill of Rights and the arguments for and against

3.2 Consideration of the principal powers of the

Scottish Parliament; analysis of the relationship between the Scottish Parliament and the UK Parliament and the problems that have arisen including the West Lothian Question and contentious financial issues, eg, the disproportionate Exchequer subsidy compared


3.3 Explain the organisation, functions and

powers of the Judiciary 3.4 Analyse the composition and function of

the Executive 3.5 Analyse the composition, functions and

powers of Parliament

with England; the principal powers of the Welsh Assembly; the state of devolution in Northern Ireland; the proposals for devolution in England

3.3 Explanation of the organisation of the courts

systems in Britain; the procedure for the appointment and dismissal of judges the role of the new Supreme Court

3.4 Consideration of the composition of the

Executive; the sources of executive power, including the prerogative power and Public Interest Immunity procedure; eg, R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (2010) CA proposals for reforming the exercise of the prerogative power by the Executive (see Green Paper The Governance of Britain (2007)); cabinet and ministerial responsibility; powers of the Prime Minister; the status of the civil service; the provisions of the Crown Proceedings Act 1947

3.5 A summary of the nature of Parliamentary

Sovereignty; ie, no Parliament is bound by its predecessor and there is nothing on which it is unable to legislate; the doctrine of express and implied repeal; the institutions which make up Parliament; the composition of the House of Lords and the House of Commons and the status of the Sovereign (fount of honour); proposals for the further reform of the House of Lords; the interrelationship between the component institutions of Parliament and, in particular, the provisions of the Parliament Acts 1911 and 1949; relevant


3.6 Analyse the status, powers and

composition of the different classes of executive agencies and Non-Departmental Public Bodies (NDPBs)

3.7 Explain the powers, organisation and

functions of local authorities

case law: eg, R (Jackson) v Attorney General (2005); public bill procedure and the procedure for dealing with the different classes of subordinate legislation; the work of Select Committees; procedure for supply and the role of the Comptroller and Auditor General; the doctrine of the separation of powers as defined by Locke in Second Treatise of Government (1690) and by de Montesquieu in The Spirit of the Laws (1754); the extent to which Parliament, the Executive and the Judiciary are separate in fact; The Constitutional Reform Act 2005; the utility of such separation; the arrangements for Parliamentary elections

3.6 The classification of “Next Steps” executive

agencies established after the Ibbs Report Improving Management in Government: The Next Steps (1988); eg, the Prison Service and the Employment service; Non-Departmental Public Bodies (NDPBs): (1) Executive bodies, eg, the Human Fertilisation and Embryology Authority, (ii) Advisory Bodies, eg, the Law Commission, (iii) Tribunals, eg, the Mental Health Review Tribunal; levels of ministerial responsibility and the distinction between “policy” and “operations

3.7 A knowledge of the sources of the powers of

local authorities; the powers of local authorities to make by-laws; the ways in which local authorities obtain revenue and the controls on their expenditure; the provisions for the declaration of the interests of local authority members and the arrangement for their regulation; the arrangements for elections for


3.8 Explain the powers, organisation and

functions of police authorities 3.9 Explain the statutory and common law

rules governing corruption 3.10 Apply an understanding of the nature of

the UK constitution to a given situation 3.11 Critically evaluate a given issue or


local authorities 3.8 A knowledge of the sources of the powers of

police authorities; appointment of members; their finance and controls on expenditure

3.9 An explanation of the main provisions of The

Corruption Acts 1889 -1916; the common law on misfeasance in public office, eg, Karagaozlu v Commissioner of Police of the Metropolis (2007)




4 Understand the citizen’s civil liberties and human rights

4.1 Analyse the liberties enshrined in statute and the residual liberties at common law

4.2 Explain how the UK courts deal with

issues of incompatibility between UK legislation and the provisions of the ECHR

4.3 Summarise the jurisdiction and powers of

the European Court of Human Rights (ECtHR)

4.4 Analyse the effectiveness of the statutory

and common law provisions for guaranteeing freedom of expression

4.1 The key provisions of the Human Rights Act 1998 enacting the European Convention on Human Rights (the ECHR); common law liberties as in, eg, Entick v Carrington (1765) and Somersett v Steuart (1772)

4.2 HRA98 s4(2) and (4(6); eg, Gaidan v Godin-

Mendoza (2004) on the approach of the courts, including the European Court of Human Rights, to incompatibility

4.3 Procedures for the citizen to access the

ECtHR; powers of the ECtHR 4.4 Common law provisions, eg, Regina v Shayler

(2002); the provisions of Article 10 of the ECHR; eg, Reynolds v Times Newspapers Ltd


4.5 Analyse the statutory and common law

provisions for both ensuring and curtailing the freedom of the citizen

4.6 Analyse the effectiveness of the statutory

and common law provisions governing freedom of assembly and public order

(1999) and Jameel (Mohammed) v Wall Street Journal Europe Sprl (2005) the provisions of the Defamation Act 1996, The Contempt of Court Act 1988 and the position of the press; the Official Secrets Acts 1911-89; the Public Interest Disclosure Act 1998 (the “whistle-blower’s charter”)

4.5 The Habeas Corpus Acts 1640-1862; the

common law on habeas corpus, eg, R v Governor of Pentonville Prison ex p Azam (1974), Hilali v Governor of Whitemoor Prison (2008); the provisions of the Police and Criminal Evidence Act 1984 (as amended) in relation to stop and search, formalities for arrest, detention and treatment in custody, and search and seizure of property; the statutory and common law provisions whereby a court can reject evidence improperly obtained: PACE 1984 ss76 and 78 and, eg, R v Chalkley (1998); the provisions which ensure for the citizen a right to a fair trial: Article 6 ECHR; the key provisions of the Freedom of Information Act 2000; the state of the law on privacy: the provisions of Article 8 ECHR and the case law on breach of confidence and in particular Wainright v Home Office (2003) and Douglas v Hello! (2001) and (2005); the statutory provisions for the protection of personal data: the Data Protection Act 1998

4.6 Relevant statutes: the main provisions relating

to assemblies and processions: eg, Austin v Commissioner of the Police of the Metropolis (2009) HL Public Order Act 1986 (POA86); other public order offences under the POA86 (as amended); the Criminal Justice and Police

4.7 Analyse the impact of the provisions of

the anti-terrorist legislation passed since 1999 on the freedom of the individual

4.8 Apply an understanding of the citizen’s

civil liberties and human rights to a given situation



Act 2001, and the Serious Organised Crime and Police Act 2005, particularly riot (s1), violent disorder (s2), affray (s3), using threatening and abusive language (s4), and disorderly conduct (s5); the provisions of the Protection from Harassment Act 1997; and the common law on breach of the peace: eg, Bibby v Chief Contsable of Essex Police (2001) and R (Laporte) v Chief Constable of Gloucestershire Constabulary (2006) HL

4.7 The effect of this legislation on curtailing the

freedom of the citizen as in, eg, Part V Terrorism Act 2000; Prevention of Terrorism Act 2005; knowledge of the leading cases on control orders: eg, Secretary of State for the Home Department v JJ and Others (2007) stop and search eg, Gillan and Quinton v United Kingdom (2009) ECHR




5 Understand the way in which administrative acts and omissions are supervised and controlled

5.1 Explain the various means by which the actions of public bodies can be reviewed and controlled

5.1 Understanding the key elements of judicial review; the powers of tribunals and the terms of reference of the Parliamentary Commissioner for Administration, the Health Service Commissioner and the Commissioners for Local Administration in England, Wales, Scotland and N Ireland; the Crossman Catalogue



5.2 Analyse the jurisdiction, role and powers

of the High Court in relation to judicial review

5.3 Explain the jurisdiction, role and powers

of tribunals

5.2 The provisions of Part 54 Civil Procedure

Rules; the law in relation to locus standi for applicants as in, eg, R v Secretary of State for the Environment ex p Rose Theatre Trust Co (1990); the requirement that the matter be a public law issue as in, eg, O’ Reilly v Mackman (1983); and that the body complained against must be a public law body or a body exercising public law functions as in, eg, R v Disciplinary Committee of the Jockey Club ex p Aga Khan (1993); the High Court cannot substitute its own view for that of the decision maker on the substantive issue; the categories of administrative fault for which judicial review will lie, ie, CSSU v Minister for the Civil Service (1945) and relevant case law; the circumstances in which the Government can obtain a Public Interest Immunity Certificate from the Court and relevant case law; the position of the executive in relation to tort and contracts under the Crown Proceedings Act 1947; the remedies available to a successful applicant for judicial review and their adequacy or otherwise: eg, Roy v Kensington Family Practice Committee (1992); the concept of judicial deference which may arise when a court considers government policy; the doctrine of legitimate expectation, see eg, Secretary of State for the Home Department v Rehman (2001)

5.3 The powers of tribunals; supervision of

tribunals; the provisions of the Leggatt Report Tribunals for Users (2002); the changes made to the tribunal system in the Tribunals, Courts and Enforcement Act 2007; Administrative


5.4 Explain the statutory procedures for

convening, holding and reporting public enquiries

5.5 Analyse the effectiveness of judicial

review, tribunals, public enquiries and ombudsmen as vehicles for providing redress for the citizen.

5.6 Apply an understanding of the way in

which administrative acts and omissions are supervised and controlled to a given situation



Justice and Tribunals Council; the strengths and weaknesses of the 2007 Act

5.4 Key provisions only of the Inquiries Act 2005

and the Enquiries Rules 2006 5.5 Judicial review: cost of judicial review;

limitation of judicial review remedies (less generous than civil law); ombudsman: limitations on remedies; slowness of ombudsman procedures; ombudsman access free to complainants; ombudsman limitations on jurisdiction; public enquiries: slow procedures; evidence not on oath; no guarantee of implementation of recommendations; rights of audience limited; limited facility for cross-examination; tribunals: the impact of the Leggatt reforms; increased independence from government; improved access for the citizen; improved quality of delivery; improved case management






of Public Law Unit expiry date 31March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 13 Title:

Law of Tort

Level:

6

Credit Value:

15




1 Understand the general principles of tortious liability

1.1 Define ‘tort’ 1.2 Explain the characteristics of tort

1.1 Civil Wrong, arising from a breach of duty, fixed by law, generally giving rise to compensation by way of an action for unliquidated damages

1.2 Common law basis; importance of

procedure; requirement of fault; absolute and strict liability; injuria sine damno (a person may not have suffered damage yet have a cause of action in tort) and damnum sine injuria (a person may have suffered damage yet have no cause of action in tort); mental element, including motive and malice; the influence of the Human Rights Act 1998

2 Understand the objectives of the

law of tort 2.1 Explain the objectives of the law of tort 2.2 Analyse the effectiveness of the law of tort

in achieving its objectives

2.1 Compensation, deterrence, justice, appeasement, normative rules of behaviour; protection of interests recognised by law; relationship with other areas of law such as contract and criminal law

2.2 Assessing effectiveness; efficiency and

effectiveness of tort as compensation


scheme: comparison with other models, including private insurance, social security benefits and non-fault based systems: see, eg, the Pearson Commission Report, the New Zealand Compensation Scheme

3 Understand the law of trespass 3.1 Explain the law of trespass to the person

3.2 Explain the law of tort in Wilkinson v

Downton 3.3 Explain the law of trespass to land

3.1 Definitions of torts: (a) Assault is an act of the defendant which causes claimant agreed reasonable apprehension of the infliction of a battery on him by the defendant; (b) ‘ Battery is the intentional and direct application of force to another person’; (c) False imprisonment is ‘the infliction of bodily restraint which is not impliedly or expressly authorised by law’; identification and explanation of the law of trespass to the person including defences of consent, necessity, self-defence, contributory negligence, and lawful arrest; relevant case law

3.2 Definition of tort: ‘The defendant has wilfully

done an act calculated to cause harm to the claimant ’; relevant case law: eg, Wilkinson v Downton (1897), Janvier v Sweeney (1919), Wainwright v Home Office (2004)

3.3 Definition of tort: trespass to land is

constituted by unjustifiable interference with the possession of land; identification and explanation of the law of trespass to land; relevant case law: eg, Kelson v Imperial Tobacco (1957), Bernstein v Skyviews & General Ltd (1971); defences: justification by law: Police and Criminal, Evidence Act 1984, Neighbouring Land Act 1992; Common Law: repossession of chattels, licence


3.4 Explain the law of trespass to goods 3.5 Analyse the law of trespass and the tort in

Wilkinson v Downton 3.6 Apply the law of trespass and the tort in

Wilkinson v Downton to a given situation 3.7 Critically evaluate a given issue or situation


3.4 Definition of tort: trespass to goods is a wrongful physical interference with them; identification and explanation of the law of trespass to goods; relevant case law: eg, Kirk v Gregory (1876), Wilson v Lombank (1963); tort against possession; exceptions to the possession rule; defences

3.5 Analysis of the law of trespass to the person,

trespass to land and trespass to goods; common characteristics of trespass: actionable per se, direct; requirement of fault; consideration of states of mind: Fowler v Lanning (1959), Letang v Cooper (1965), Wilson v Pringle (1987); trespass distinguished from the tort in Wilkinson v Downton; analysis of the concept of possession; possession distinguished from ownership, trespass to goods distinguished from conversion (outline only)



4 Understand the law of negligence 4.1 Explain negligence

4.2 Explain the evolution of the requirement of

duty of care

4.1 Definition: Blyth v Birmingham Waterworks Co (1856), per Alderson B; its main elements: duty of care, breach of duty of care, consequential damage that is not too remote in law

4.2 Established categories of duty of care to; test

of proximity: Heaven v Pender (1883), test for proximity: Donoghue v Stevenson (1932),


4.3 Explain the law in those areas in which

public policy plays a significant role in determining the existence of duty of care

4.4 Explain the law on breach of duty of care 4.5 Explain the legal tests for causation in fact

per Lord Atkin; foreseeability, proximity, fair and reasonable: Caparo v Dickman (1990)

4.3 Meaning of public policy: consideration by

the court of whether a duty of care should exist rather than whether it does exist; key areas of public policy: pure economic loss resulting from negligent acts and negligent misstatements, psychological damage, police, local authorities, acts of third parties, omissions; identification and explanation of the law; understanding of relevant case law

4.4 Identification and explanation of the law;

understanding of relevant case law: Blyth v Birmingham Waterworks Co (1856), per Alderson B; harm must be reasonably foreseeable at time; hindsight must not be used; questions of skill and judgment: objective test; relevance of accepted body of professional opinion; magnitude of risk tests: likelihood and seriousness of damage; importance of the object


understanding of relevant case law: the claimant must demonstrate a causal link between the breach of duty of care by the defendant and the damage suffered by the claimant; tests used: the ‘but for’ test, eg, Barnett v Chelsea Hospital Management Committee (1969); the ‘material increase of risk test’, eg, McGhee v NCB (1973); Baker v Willoughby (1969), Jobling v Associated Dairies (1981); subsequent developments including Fairchild v Glenhaven Funeral Services (2003), Gregg v Scott (2005),


4.6 Explain the law on breaks in the ‘chain of

causation’ 4.7 Explain the law on remoteness of damage

(causation in law) in negligence 4.8 Explain the doctrine of ‘take your victim as

you find him’ 4.9 Explain the law governing proof of

negligence 4.10 Analyse the law of negligence

Barker v Corus UK (2006), s3 Compensation Act 2006


understanding of relevant case law: Nova causa interveniens novus actus interveniens (new and intervening cause/new and intervening act): acts of third parties, eg, Home Office v Dorset Yacht Co (1970), Rouse v Squires (1973); subsequent medical negligence; subsequent acts of the claimant, eg, McKew v Holland Hannen & Cubitts (1969), Wieland v Cyril Lord Carpets (1969)


understanding of relevant case law: The Wagon Mound (No 1) (1961), Hughes v Lord Advocate (1963); acts of third parties, eg, Smith v Littlewoods Organisation (1987)


understanding of relevant case law: eg, Smith v Leech Brain & Co Ltd (1961), Robinson v Post Office (1974)


understanding of relevant case law: burden and standard of proof; s11 Civil Evidence Act 1968; res ipsa loquitur (the thing speaks for itself)

4.10 Analysis of the law of negligence; to include:

the interests protected; public policy; the nature of the harm; the parties; remedies; the effectiveness of the action


4.11 Apply the law of negligence to a given situation





5 Understand the law of tort relating to employers’ liability

5.1 Explain the law on the employer’s personal liability to the employee in negligence

5.2 Explain the law of vicarious liability 5.3 Analyse the common law on employer’s

liability 5.4 Apply the common law governing the

liability of employers to a given situation 5.5 Critically evaluate a given issue or situation


5.1 Identification and explanation of the law; understanding of relevant case law: duty is an implied term of the contract; tests for employee/employer relationship; content of employer’s common law duty to the employee; relevant case law: eg, Ready Mixed Concrete (South East) v MPNI (1968), Wilsons & Clyde Coal v England (1938)


understanding of relevant case law: liability for acts of another: employees, agents, independent contractors; tests for employee; tests for agent; circumstances in which liability for independent contractor may arise; tortious act done in the course of employment; frolics of one’s own; lending a servant

5.3 An analysis of the common law governing

employers’ liability to employees and vicarious liability




6 Understand the law of tort relating to liability for premises

6.1 Explain the law under the Occupiers’ Liability Acts of 1957 and 1984

6.2 Analyse the law under the Occupiers’

Liability Acts 1957 and 1984 6.3 Apply the Occupiers’ Liability Acts 1957 and

1984 and relevant case law to a given situation



6.1 Area of tort governed by the Acts: liability arising as a result of the occupation of premises; key elements: occupation of premises, duty arising as a consequence, breach of duty, damage; identification and explanation of the 1957 law; understanding of the relevant statute and case law: Occupiers’ Liability Act 1957: meaning of ‘occupier’, meaning of ‘premises’, to whom duty is owed, classes of lawful visitor, permission and its limits, nature of duty owed, special groups: children and those in pursuit of a common calling; overlap with common law negligence and appropriate cause of action; defences, including the limitations imposed by the Unfair Contract Terms Act 1977; relevant case law, eg, Wheat v Lacon (1966); identification and explanation of the Occupiers’ Liability Act 1984 and relevant case law: eg, Tomlinson v Congleton District Council (2003), Keown v Coventry NHS Trust (2006)

6.2 Analysis of the law under the relevant acts:

to include distinguishing actions under the 1957 and 1984 Acts from one another and from common law negligence; the interests protected; the nature of the harm; the parties; remedies; the effectiveness of the actions




defences, where appropriate

7 Understand the law of nuisance 7.1 Explain the law of private nuisance 7.2 Explain the law of public nuisance 7.3 Explain the law of the tort in Rylands v

Fletcher

7.1 Definition of the tort of private nuisance: the unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it; identification and explanation of the law; understanding of case law: factors considered by the court when determining unlawful interference: repetition, continuance, and state of affairs; the existence of malice; locality; the practicality of preventing nuisance; the claimant’s interest in the land; the nature of the harm suffered; the status and culpability of the defendant; remoteness of damage; defences: prescription, statutory authority, consent; relevant case law

7.2 Definition of the tort of public nuisance: a

public nuisance is one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects who come within the sphere or neighbourhood of its operation; the claimant must show particular harm; identification and explanation of the law; understanding of relevant case law: what constitutes a class; particular harm; defences; relevant case law

7.3 Definition of the tort in Rylands v Fletcher:

the person ‘who for his own purpose brings on his lands and collects there anything likely to do mischief if it escapes must keep it in at his peril, and if he does not do so is prima facie liable for all the damage which is


7.4 Analyse the law of nuisance (including the

tort in Rylands v Fletcher) 7.5 Apply the law of nuisance (including

Rylands v Fletcher) to a given situation 7.6 Critically evaluate a given issue or situation


the natural consequence of its escape’, Rylands v Fletcher (1866) per Blackburn J; identification and explanation of the law; understanding of relevant case law: things likely to do mischief; the question of strict liability; non-natural user; escape; the question of liability for personal injuries; remoteness of damage; defences; relevant case law

7.4 To include: distinguishing public nuisance,

private nuisance, and the tort in Rylands v Fletcher; the interests protected; the nature of the harm; the parties; remedies; the effectiveness of the action



8 Understand the law of defamation 8.1 Define the tort of defamation

8.2 Distinguish libel from slander

8.1 The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him

8.2 Libel is defamation expressed in permanent

form; see also: ss1 and 16(1) Defamation Act 1952, s28 Cable & Broadcasting Act 1984, s4 Theatres Act 1968; libel is actionable per se; slander is defamation by means of spoken word or gesture: general rule: must show damage; actionable per se


8.3 Explain the law of defamation 8.4 Analyse the law of defamation 8.5 Apply the law of defamation to a given



as an exception: imputation of crime, infectious disease, s1 Slander of Women Act 1891, disparaging person in office trade or profession


understanding of case law and statute: publication capable of bearing a defamatory meaning; innuendo; refer to the claimant/identification of the claimant; publication to a 3rd party; defences: justification, fair comment, absolute privilege, qualified privilege; relevant case law: eg, Youssoupoff v MGM (1934), Keays v Murdoch Magazines (1992), Tolly v Fry (1931), Humphries v Thompson (1905 –1910), Berkoff v Burchill (1996); statutory intervention to include: Law of Libel Amendment Act 1888, Defamation Act 1952, Rehabilitation of Offenders Act 1974, Defamation Act 1996, Human Rights Act 1998

8.4 To include: the interests protected; the

nature of the harm; the parties; remedies; the effectiveness of the action; the influence of Articles 8 and 10 of the European Convention on Human Rights; procedure in defamation cases (outline)



9 Understand general defences 9.1 Explain the role of complete and partial 9.1 Complete defences defeat the action of the


defences 9.2 Explain the defence of volenti non fit injuria

(Consent) 9.3 Explain the defence of ex turpi causa non

oritur action (No cause of action arises from an immoral/illegal cause)

9.4 Explain the defence of contributory

negligence 9.5 Analyse general defences in tort 9.6 Apply the law of general defences to a


claimant, partial defences act to reduce damages

9.2 Identification and explanation of the law

showing understanding of relevant case law: that which is consented to cannot be wrong in law; the defendant must show: the claimant agreed to take the risk, had sufficient knowledge to make the agreement real, and that the agreement was voluntary; relevant case law


showing understanding of relevant case law: victim of tort who is in course of committing a crime may have claim disallowed by the court, eg, Ashton v Turner (1981); limitations of defence


showing understanding of relevant case law and statute: claimant was in part responsible for the harm s/he suffered; position at common law; position under Law Reform (Contributory Negligence) Act 1945; relevant case law

9.5 To include analysis of nature of the defence,

whether a full or partial defence, consideration of the defence in relation to special groups, eg, children, workers, and rescuers




to predict probable legal implications defences, where appropriate

10 Understand remedies in tort 10.1 Explain the classification of remedies 10.2 Explain the meaning of damages 10.3 Explain the purpose of damages in tort 10.4 Explain damages for personal injury 10.5 Explain non-compensatory damages 10.6 Explain injunctions 10.7 Explain the implications for damages of

the death of the claimant 10.8 Analyse the law on remedies

10.1 Judicial remedies: damages, injunction; non-judicial remedies: self-help, abatement etc

10.2 Monetary compensation 10.3 To place the claimant in the position s/he

would have been had the tort not been committed

10.4 Special Damages: actual pecuniary loss to

date of trial; General Damages: to include Future Pecuniary Loss, loss of earnings, past and future non-pecuniary loss, pain, suffering, loss of amenity, mental distress; lost years; aggravated damages; deductions; relevant case law; Damages Act 2006

10.5 Nominal, Contemptuous and Exemplary

damages; relevant case law 10.6 Mandatory and prohibitory injunctions;

injunctions at trial and interlocutary injunctions: American Cyanamid v Ethicon (1975)

10.7 Survival of deceased's right of action: Law

Reform (Miscellaneous Provisions) Act 1934; claims for financial loss and bereavement: Fatal Accidents Act 1976, Administration of Justice Act 1982

10.8 Analysis to include nature of assessment of

damages, particularly in case of personal injury and death; giving monetary values to


10.9 Apply the law on remedies to a given



injury and trauma; predicting levels of compensation etc





understanding of the Law of Tort Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 44 Personal Injury Legal Advice and Casework


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Unit 14 Title:

Law of Wills and Succession

Level:

6

Credit Value:

15




1 Understand the formal requirements for making a valid will or codicil

1.1 Define the statutory rules relating to the formal requirements to make a will

1.2 Analyse how these statutory rules have been

applied through case law

1.1 Clear and accurate understanding of s9 Wills Act (WA)1837 as substituted by s17 Administration of Justice Act (AJA)1982

1.2 To be considered “in writing”, use of

language/code, on any material, relevance of use of pencil and ink; “signed” by Testator (T) and intention to be signature; relevant case law, eg, Hodson v Barnes (1926), Adams (1872), Cook (1960), Chalcraft (1948), Savory (1851), signature by another person; “intended to give effect” to the will, position of T’s signature, meaning of “foot or end”; relevant case law, eg, Wood v Smith (1993), Weatherhill v Pearce (1995); signature “made or acknowledged” before two witnesses, physical and mental presence of T, eg, Casson v Dade (1781); Chalcraft; meaning of acknowledgement, meaning of presence of witnesses, capacity of witnesses, witness/beneficiary and effect of s15 WA 1837, position of witnesses’


1.3 Compare the exceptions to these formal

requirements 1.4 Apply an understanding of the formal

requirements to make a valid will to a given situation

1.5 Critically evaluate a given issue or situation to

predict probable legal implications

signatures; relevant case law, eg, Gunstan (1882), Weatherhill, Couser (1996), Brown v Skirrow (1902), attestation clause not necessary, affidavit evidence and presumption if no evidence available, evidence of date of will; relevant case law, eg, Corbett v Newey(1996)

1.3 Form of privileged wills; intention to take

effect on death only requirement; T’s status, at sea or actual military service, does not exclude minors; consideration of relevant case law, eg, Wingham (1949), Jones (1981), Rapley (1983); incorporation by reference, consideration of the three requirements (in existence, referred to and identified); relevant case law, eg, University College of North Wales v Taylor (1908); donatio mortis causa, consideration of the three requirements (contemplation of death, conditional on death, delivery (parting with dominion)) and relevant case law, eg, Re Craven’s Estate (No.1) (1937), Wilkes v Allington (1931) Sen v Headley (1991)

1.4 Application of the requirements to a



2 Understand the rules relating to capacity to make a valid will or codicil

2.1 Explain the rules relating to mental capacity to make a will

2.1 Consideration of age; mental state of T and testamentary capacity, the rule in Banks v Goodfellow (1870) and the three stage test; Mental Capacity Act 2005


2.2 Analyse how these rules have been applied

through case law and the effect of failure to comply with these rules

2.3 Explain the rules relating to knowledge and

approval of the contents of a will 2.4 Analyse the effect of failure to comply with

these rules 2.5 Explain the meaning of force, fear, fraud and

undue influence

2.2 Relevant case law, eg, Battan Singh v

Amirchand (1948), Ewing v Bennet (2001), Cartwright (1793);; the time at which capacity is tested, the rule in Parker v Felgate (1883); the burden of proof and relevant case law, eg, Vaughan v Vaughan (2002); presumptions if will rational and mental state continues; insane delusions and the effect on whole or part of the will; relevant case law, eg, Dew v Clark and Clark (1826)

2.3 Rebuttable presumption of knowledge and

approval; circumstances in which such presumption does not arise: blind or illiterate T, suspicious circumstances, beneficiary preparing will; relevant case law, eg, Guardhouse v Blackburn (1866), Barry v Butlin (1838), Wintle v Nye (1959), Fuller v Strum (2002); time at which knowledge and approval is required; rules on burden of proof

2.4 Mistake as to whole or part of will, limit of

the court’s willingness to intervene; relevant case law, eg, Phelan (1972), Collins v Elstone (1893); court’s discretionary powers of rectification, clerical errors and failure to understand instructions, relevant cases, disappointed beneficiary’s use of rectification to mitigate damage

2.5 The meaning of force or fear; burden of

proof and lack of presumptions; meaning of fraud and examples through relevant cases;


2.6 Analyse the effect these may have on the

validity of a will 2.7 Apply an understanding of the rules relating

to capacity to a given situation 2.8 Critically evaluate a given issue or situation to


meaning of undue influence and the distinction between persuasion and intolerable pressure; relevant case law, eg, Hall v Hall (1868); different from inter vivos gifts as no presumption of undue influence, eg, Parfitt v Lawless (1872); other illustrative case law, eg, Carpeto v Good (2002); solicitor’s duty of care when taking instructions and relevant case law, eg, Killick v Pountney (2000)

2.6 The effect is refusal of probate as not considered act of T; may be of whole will or in part (eg failure of legacy) depending on extent of influence

2.7 Application of the rules to a complex



3 Understand the legal principles relating to legacies and devises

3.1 Explain the effect of various types of legacies and devises

3.2 Analyse the rules which govern the way in

which different types of legacies and devises fail both at common law and by statutory rules

3.1 Specific legacies, approach of courts in construing; relevant case law, eg, Rose (1949); general legacies; demonstrative legacies, definition as in Ashburner (1786), nature both specific and general; pecuniary legacies; residuary legacies; devises; type of legacy and effect of order for payment of debts, abatement; rules on the payment of income and interest on different types of legacies

3.2 Ademption, changes in substance, contrast

cases such as Clifford (1912) and Slater (1907), effect of republication, the doctrine of conversion, options to purchase, the rule in Lawes v Bennett (1785), lapse, effect


3.3 Explain the incidence of pecuniary legacies 3.4 Apply an understanding of the principles

relating to legacies and devises to a given situation



where gift is to joint tenants/tenants in common/members of a class, substitutional gifts, survivorship clauses, statutory presumption of order of deaths, exceptions to doctrine of lapse, s33 WA 1837 and expression of contrary intention; divorce or dissolution, s18A WA 1837; uncertainty, subject matter, objects, relevant examples from case law; s15 WA 1837 beneficiary/their spouse or civil partner witness, effect of later codicil, other exceptions including Wills Act 1968 s1; public policy, principle set out in Gray v Barr (1971), forfeiture, relevant case law, eg, Re Crippen (1911), Re DWS (2000); and awareness of effect of Forfeiture Act 1982

3.3 The rules relating to estates where there is

no undisposed of property, the rules in Greville v Brown (1859) and Roberts v Walker (1830) ; rules where there is undisposed of property, effect of the amended s33(2) Administration of Estates Act (AEA)1925




4 Understand the way in which a will can be revoked

4.1 Analyse how the rules relating to revocation by destruction have been applied through case law

4.1 Provisions in s20 WA 1837; definition of “burning tearing or otherwise destroying”; relevant case law, eg, Cheese v Lovejoy (1877), Adams (1990), Hobbs v Knight


4.2 Explain the rules relating to wills which apply

following marriage or civil partnership, divorce or dissolution

4.3 Explain how a later testamentary document

may revoke an earlier will 4.4 Explain the rules relating to mutual wills 4.5 Apply an understanding of the way in which

a will is revoked to a given situation 4.6 Critically evaluate a given issue or situation


(1838), Everest (1975); incomplete intended destruction as in Perkes (1820); consideration of intention, accidental destruction, rebuttable presumption of revocation where will in T’s possession cannot be found/is found mutilated; conditional revocation; relevant case law, eg, Southerden (1925), Finnemore (1991)

4.2 s18 WA 1837, exceptions on expectation

of marriage and rules relating to this; effect of divorce or dissolution, s18A WA 1837, Sinclair (1985) and the Law Reform (Succession) Act 1995

4.3 The need for express revocation in writing;

revocation to the extent that the later document is inconsistent with the first

4.4 The equitable doctrine of mutual wills, crystallisation of the floating trust, evidence of mutual intention not to revoke, relevant cases, eg, Dufour v Pereira (1769), Re Cleaver (1981), Re Goodchild (1996) 4.5 Application of understanding to a complex



5 Understand the effect of alterations contained in a will

5.1 Analyse how the statutory rules relating to the alteration of wills have been applied through case law

5.1 Provisions of s21 WA 1837; presumption alteration made post-execution, exception to this is where alteration is to complete blank spaces, attested alterations admitted; effect of unattested alterations; meaning of “apparent”, effect of original


5.2 Apply an understanding of the rules relating

to alteration of a will to a given situation 5.3 Critically evaluate a given issue or situation to


wording being “not apparent”, rules on use of extrinsic evidence; relevant case law, eg, Re Itter (1950)




6 Understand the main principles of construction of wills

6.1 Explain the rules available to the court in ascertaining the testator’s expressed intention

6.2 Analyse how the rules which allow the courts

to use extrinsic evidence of the testator’s intention have been applied through case law

6.3 Explain the rules relating to the date from

which the will speaks 6.4 Analyse the effect of types of class gift

6.1 The basic rule, intention as expressed in the will; relevant case law, eg, Rowland (1963), Jones (1998); ordinary meaning for ordinary words; technical words given their technical meaning; relevant case law, eg, Cook (1948); dictionary principle

6.2 The general rule to exclude extrinsic

evidence; exceptions: the armchair principle, the surrounding circumstances; relevant case law, eg, Thorn v Dickens (1906), Fish (1893); latent ambiguity, not apparent on the face of the will; relevant case law, eg, Jackson (1933); s21 AJA 1982, covers wording which is meaningless, latent ambiguity and patent ambiguity, will allow evidence of T’s intention

6.3 s24 WA 1837, difference in approach

between beneficiaries and property; contrary intention; rules on republication and revival

6.4 The need for class closing rules; definition

of immediate, deferred, contingent and deferred contingent class gifts; gifts of


6.5 Identify whether a gift is absolute or limited

and explain the effect 6.6 Explain the rules which relate to adopted and

illegitimate children 6.7 Apply an understanding of the rules of

construction to a given situation 6.8 Critically evaluate a given issue or situation


specified amount to a class of people, eg, Pearks v Moseley (1880)

6.5 The construction of successive interests;

s22 AJA 1982 presumption re spouses; the rule in Lassence v Tierney (1849)

6.6 Adopted children treated as legitimate child

of adopter; illegitimate children treated as if legitimate




7 Understand the statutory rules relating to devolution of estates on intestacy

7.1 Distinguish between intestacy and partial intestacy

7.2 Explain the operation of the statutory trust of

land 7.3 Explain the order of beneficial entitlement on

intestacy

7.1 The difference between intestacy (leaving no will, or ineffective or invalid will) or partial intestacy where will does not dispose of whole estate

7.2 Provisions of s33 AEA 1925, apply to both

partial and total intestacy, imposes trust with a power to sell on undisposed estate to deal with funeral and administration expenses, settle debts, distribute correctly

7.3 s46 AEA 1925 order and extent of

entitlement on intestacy; surviving spouse/civil partner; entitlement of other relatives, issue, parents, brothers and sisters of whole and half-blood, grandparents, uncles and aunts of whole and half-blood, the Crown; effect of the statutory trusts s47 AEA 1925; rules relating to adopted and illegitimate children


7.4 Explain the special rules which apply to

spouses/civil partners 7.5 Apply an understanding of intestacy/partial

intestacy to a given situation 7.6 Critically evaluate a given issue or situation to


7.4 Statutory survivorship period; redemption

of life interest; acquisition of the matrimonial home, Schedule II Intestates’ Estates Act (IEA) 1952, use of equality money, date of valuation for any calculation, care where spouse is sole PR (relevant case law, eg, Kane v Radley-Kane (1998)), circumstances where consent of court is required, compare s41 AEA 1925 ordinary power of appropriation




8 Understand the circumstances in which different types of grant of representation may be appropriate

8.1 Explain the purpose of a grant of representation

8.2 Explain when the various types of grant of

representation are appropriate

8.1 To establish the authority of the personal representatives (PRs); to establish the validity of any will or to establish that there is no valid will

8.2 Probate: valid will with appointment of

executors able and willing to act; letters of administration with the will annexed: where there is a valid will which does not appoint executors or those appointed executors are unable or unwilling to act; simple letters of administration: on intestacy where there is no valid will; special grants: restricted to knowledge of a grant of letters of administration de bonis non, administration is incomplete, there is no remaining PR, there has been a previous grant, there is no chain of representation; order of priority for taking the grant (rules


8.3 Explain the circumstances in which a grant

may be revoked 8.4 Analyse the effect of such revocation 8.5 Apply an understanding of the appropriate

grants of representation to a given scenario 8.6 Critically evaluate a given issue or situation


20 and 22 Non-Contentious Probate Rules (NCPR) 1987)

8.3 May be contentious or non-contentious;

grounds include that it ought not to have been made (fraudulent application, better entitled person found, grant made despite caveat or pending proceedings), a subsequent will is discovered or the proved will is found to be revoked or invalid, the person thought to be deceased has not died; relevant case law

8.4 Consequences: eg, protection of original

PR acting in good faith (s27AEA 1925), protection of person making payment to PR in good faith, s39 AEA and contracts for sale, s37 AEA and conveyances of land; wrong beneficiary’s position and limits on tracing actions




9 Understand the rules governing

personal representatives’ entitlement to a grant of representation

9.1 Explain how executors may become entitled to a grant of representation distinguishing between appointment by will and other methods

9.1 Appointment by will; appointment according to tenor; relevant case law, eg, Baylis (1865), McKenzie (1909); person appointed by will to nominate an executor; chain of representation; executor de son tort, intermeddling, acts of kindness and charity; relevant case law, eg, Pollard v Jackson (1995), effect; limit of four executors (s114(1) Senior Courts Act


9.2 Explain the circumstances in which

administrators may become entitled to a grant of representation

9.3 Explain the circumstances in which a

potential personal representative may avoid appointment or be refused by the court


governing entitlement to a grant of representation to a given situation



(formerly known as Supreme Court Act) (SCA) 1981), court power to appoint additional PR to act with sole executor

9.2 Rule 22 NCPR 1987 (simple

administration) list of entitlement follows beneficial entitlement on intestacy; rule 20 NCPR 1987 (administration with will annexed) list of entitlement follows order of entitlement under the will; living beneficiaries are preferred to PRs of deceased beneficiary; application by a creditor; limit of four administrators, minimum of two where life interest or minority arises unless court’s discretion exercised (s114(2) SCA 1981)

9.3 Renunciation, effect of intermeddling,

possibility of retraction; power reserved to appointed executors; passing-over, s116 SCA 1981, discretionary power, exercised on request (egPotter (1899)), or applicant is unsuitable (as in,eg, Crippen (1911))




10 Understand the powers, duties and liabilities of personal representatives

10.1 Explain the statutory administrative powers available to personal representatives

10.1 powers given under AEA 1925, Trustee Act (TA) 1925 and TA 2000; power to postpone distribution; power to sell mortgage and lease; power of investment; power to purchase land; power to insure; power to run a business; power to maintain


10.2 Analyse their effectiveness in dealing with

estate assets 10.3 Explain the duties of personal

representatives 10.4 Explain the liability of personal

representatives 10.5 Explain the ways in which relief might be

granted from such personal liability 10.6 Explain the methods by which personal

representatives might protect themselves from liability

10.7 Apply an understanding of the powers and

duties of personal representatives to a given situation


minors; power to advance capital; power to delegate; the rules relating to appropriation

10.2 An understanding that these can be

extended and varied by will; property which does not devolve on the PRs; powers of PRs before grant, position of administrators as opposed to executors

10.3 Duty to collect assets and administer with

due diligence; time at which property devolves upon PRs; property which will not devolve on PRs; duty of care introduced by TA 2000

10.4 Loss arising from breach of duty;

examples include misappropriation, maladministration, negligence; usually several liability amongst a number of PRs; liability for the acts of agents

10.5 Relieving provisions in the will; relevant

case law, eg, Armitage v Nurse (1997); relief under s61 TA 1925 granted by the court; consent or release from beneficiaries; limitation

10.6 Appropriate use of s27 TA 1925

advertisements; use of searches; setting aside a fund; insurance; application to the court for directions; the use of Benjamin orders (ie, Benjamin (1902))




to predict probable legal implications implications, including remedies and defences, where appropriate

11 Understand the rules relating to the payment of debts during the administration of an estate

11.1 Distinguish between a solvent and an insolvent estate

11.2 Explain the rules relating to the payment of

debts in a solvent estate 11.3 Analyse the effect of varying these rules 11.4 Explain the rules relating to the payment of debts in an insolvent estate

11.1 Solvent: assets are sufficient to pay all funeral, testamentary and administration expenses, debts and liabilities; irrelevant that it cannot pay all legacies; insolvent: assets are insufficient to pay all liabilities as above; beneficiaries will receive nothing, creditors will not be paid in full

11.2 Part II of Schedule I AEA 1925 order in

which assets are used to pay debts; debts charged on property and s35 AEA 1925, debts charged on more than one property; relevant case law, eg, Birmingham (1959), Neeld (1962), statutory order for unsecured debts, property falling outside the order; the doctrine of marshalling

11.3 Variation of the order for unsecured debts;

relevant case law, eg, James (1947), Gordon (1940), Re Kempthorne (1930); methods of showing contrary intention (s35) for debts charged on property

11.4 PRs must follow order of priority which cannot be varied by T, risk of personal liability for superior unpaid debts, limited protection; availability of joint property to cover debts; order for payment of debts: secured creditors option to rely on security or prove debt in whole or part, funeral testamentary and administration expenses, bankruptcy order contained in Insolvency Act 1986 as amended by Enterprise Act 2002 (preferred, ordinary and deferred debts)


11.5 Apply an understanding of the rules relating to the payment of debts to a given situation






12 Understand the provisions of the Inheritance (Provision for Family and Dependants) Act 1975

12.1 Explain the preliminary requirements of the Act

12.2 Analyse the way in which the courts have

applied the classification of applicants 12.3 Distinguish between the two standards of

reasonable provision 12.4 Explain the common and particular

guidelines available to the court

12.1 Domicile; time limit for applications; the applicant falls into one of the categories; reasonable financial provision has not been made

12.2 Classification of applicants: s1(1) of the

Act; spouse or civil partner; former spouse or civil partner; relevant case law, eg, Barrass v Harding (2001) and consideration of financial settlement on divorce; a person cohabiting with the deceased, position of same sex partners; relevant case law; a child of the deceased, definition to include adopted, illegitimate, en ventre sa mère; a person treated by deceased as a child of the family ; and person maintained by the deceased immediately before his death, meanings of maintained, valuable consideration, “immediately before death”; relevant case law

12.3 Reasonable financial provision; surviving

spouse standard; ordinary standard; consideration of changes arising post death

12.4 s3(1) common guidelines, financial

resources of applicant/beneficiaries, obligations and responsibilities of the deceased, size and nature of the estate,


12.5 Explain the types of orders available to the

court 12.6 Identify the property available for financial

provision 12.7 Analyse how the provisions of the Act have

been implemented by the courts through case law

12.8 Apply an understanding of the provisions of

the Act to a given situation 12.9 Critically evaluate a given issue or situation


applicant’s physical or mental disability, any other matter; particular guidelines, as applicable to each category of applicant

12.5 Periodical payments; lump sum payments;

transfers of property; settlement of property; acquisition of property; interim payment orders

12.6 s25 and definition of the “net estate”;

treatment of joint property; anti-avoidance provisions

12.7 Relevant case law relating to each

category of applicant, in particular the stance relating to children of the deceased






of the Law of Wills and Succession Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Section 2: The Practice Units

Unit 15 Civil Litigation 193-202 Unit 16 Practice of Company and Partnership Law 203-212 Unit 17 Conveyancing 213-226 Unit 18 Criminal Litigation 227-233 Unit 19 The Practice of Employment Law 234-248 Unit 20 The Practice of Family Law 249-261 Unit 21 Probate Practice 262-271


Unit 15 Title:

Civil Litigation

Level:

6

Credit Value:

15




1 Understand the main underlying features that enable an act of litigation

1.1 Explain the key rules of professional conduct

1.2 Explain different methods of financing

litigation 1.3 Explain the legal principles upon which

most civil litigation is based 1.4 Analyse a given legal situation on these

underlying features in order to offer practical advice and assistance

1.1 The Solicitors rules of conduct including the rules on: conflicts of interest (Code of Conduct Rule 3); confidentiality (Rule 4); litigation and advocacy (Rule 11); duty of honesty in disclosure of documents

1.2 Private funding: an explanation of privately

paid costs; an understanding of special funding arrangements, such as legal expense insurance, conditional fees and ATE policies; public funding, in outline, and the implications of the Funding Code

1.3 An underpinning knowledge of the principles of

the laws of contract and tort, including the law of negligence and occupiers’ liability

1.4 Analysis of a complex scenario to offer advice

and assistance, eg, principles of best practice when accepting new instructions, including the requirement to provide accurate estimates of costs and regular progress updates

2 Understand what pre-action steps should be considered before a

2.1 Describe the key features of the Civil Procedure Rules (CPR)

2.1 The overriding objective of the CPR (rules 1.1, 1.2); pre-action protocols; Alternative Dispute


claim is issued 2.2 Explain alternative methods of resolving

debt actions under the Insolvency Act 1986

2.3 Describe limitations to actions 2.4 Analyse a defendant’s financial

circumstances 2.5 Identify remedies available, including the

assessment of damages and interest 2.6 Explain current pre-action protocols and

practices in litigation

Resolution (ADR) (Rule 1.4(2)(e)) 2.2 The use of the statutory demand procedure as

a debt-collection tactic, ie, when it may be used and its key restrictions

2.3 Understanding of the key principles of the

Limitation Act 1980; an awareness of the court’s discretion to extend the limitation period

2.4 Financial enquiries of the viability of pursuing a

potential defendant, including the use of enquiry agents, company searches, the register of judgments, credit reference agencies and orders to provide information (CPR part 71)

2.5 Establishing quantum in personal injury cases,

including an appreciation of categories and examples of pecuniary and non-pecuniary losses; the effect of a fatal accident and application of the Law Reform Act (Miscellaneous Provisions) Act 1934; the availability of periodic payments and structured settlements; establishing quantum in commercial cases and the application of the Commercial Debts (Interest) Act 1998, including calculating interest and the provisions applied to commercial debts; ability to explain relevant equitable remedies available, such as injunctions

2.6 Pre-action protocols; an understanding of where a published protocol applies; all published protocols including those for: personal injury, clinical negligence, professional negligence, claims for disease


2.7 Analyse a given legal situation on pre-

action steps in order to offer practical advice and assistance

and illness, judicial review, construction claims, defamation, housing disrepair, and housing repossessions; requirements of the protocols in clinical negligence and professional negligence in outline only; duty of mutual co-operation; pre-action disclosure and inspection; ADR; letters before action and without prejudice correspondence


and assistance, eg, analysis of the facts, establishing potential grounds of liability, preparing written advice to a client, outlining any pre-action steps to be taken and an explanation of the merits of an action in relation to the benefits outweighing the costs

3 Understand the initial stages of

proceedings 3.1 Explain in which court proceedings should

be issued 3.2 Analyse a claim form 3.3 Explain the procedure for issuing and

serving a claim

3.1 Jurisdiction of the Court; location and awareness of the specialist High Court lists, such as the Commercial Court, Technology and Construction Court and Administrative Court lists; knowledge of the practical and procedural differences in these Courts is not required

3.2 Contents of the claim form (both Part 7 and Part 8 claims), assessment of a Particulars of Claim; the Statement of Truth (Part 22) and the consequences of making a false statement; understanding of the special requirements in PI claims (Practice Direction 16)

3.3 Issuing a claim, including knowledge of the Money Claim Online scheme; address, methods and deemed dates of service (Part 6)


3.4 Analyse a defence to a claim,

including evaluation of potential counterclaims

3.5 Explain how additional claims can be

brought by a defendant 3.6 Explain the procedure for obtaining more

information about an opponent’s statement of case

3.7 Analyse how and when a statement of

case can be amended 3.8 Analyse a given legal situation on the

initial stages of proceedings in order to offer practical advice and assistance

3.4 The contents of a defence (Parts 9 & 15);

assessment of a defence; timescales for filing defence or acknowledgment of service (Part 10); penalties for late filing and applications for extensions; an explanation of the procedure for issuing a counterclaim; assessment of circumstances when a counterclaim should be made; distinction between a counterclaim and ‘set off’

3.5 Assessment of a counterclaim or claim against

an additional party for contributions and indemnities; procedural steps for bringing an additional claim and the court’s use of its case management powers

3.6 Requests for further information (Part 18), ie, procedure for making a request, format and how to respond to a request

3.7 Powers and procedure for amending a

statement of case (Part 17) 3.8 Analysis of a complex scenario to offer advice

and assistance; drafting of a Particulars of Claim, a defence, and a counterclaim or claim against a third party

4 Understand when a matter can be terminated without a trial

4.1 Describe the process of ending proceedings where no defence is filed

4.2 Describe the procedure for obtaining

4.1 Applications for judgment in default (part 12) and setting aside default judgments (part 13)

4.2 Judgments on admission (Part 14), ie,


judgment where a party admits some or all of the claim

4.3 Analyse when a case is weak and

identify the rules and procedure for disposing of it early

4.4 Analyse the effect of reaching a

negotiated settlement before judgment 4.5 Distinguish between discontinuing and

abandoning proceedings 4.6 Analyse a given legal situation on when

a matter can be terminated without a trial in order to offer practical advice and assistance

procedure for making an admission; types of admissions and their effect

4.3 Applications for summary judgment (Part 24); who may

apply; tests used by the court including any relevant case law, eg ED & F Swain v Hillman (2001) 1 All ER 91; what orders may be made and the cost implications

4.4 Stay of proceedings; contracts of compromise

and the use of Tomlin orders 4.5 Discontinuance (part 38) and abandoning

heads of claim (Part 17) 4.6 Analysis of a complex scenario to offer advice

and assistance; drafting of Tomlin orders, applications for default and summary judgments

5 Understand the track allocation system

5.1 Explain the criteria used by the court to decide an appropriate track for an action

5.2 Analyse the significance of allocation to

each of the tracks

5.1 An explanation of: Small Claims, Fast Track and Multi-Track; High Court; criteria for determining the correct track and reasons considered by the court; contents of the allocation questionnaire (N150); possibility of reallocation during a case

5.2 Small Claims track, ie, the extent of the court’s

powers and the rules on costs; Fast track, ie, likely directions, general form of case management, timetabling, listing questionnaire, restrictions on costs, re-allocation of certain issues; Multi track, ie, duties of case management, case conferences, pre-trial reviews, variation of the case management timetable, use of listing questionnaires


5.3 Analyse a given legal situation on the track allocation system in order to offer practical advice and assistance

5.3 Analysis of a complex scenario to offer advice and assistance

6 Understand the key steps made in

the progress of a matter to trial

6.1 Explain what is meant by “directions” 6.2 Explain the rules of disclosure 6.3 Explain the purpose of witness

statements and summonses, and the accompanying practical considerations of preparing evidence

6.4 Analyse how expert witness reports are

used by the parties and the court

6.1 Directions, ie, preparation of example contents

and/or orders; standard directions and those produced after a case management conference; directions to include, for eg, appointment of experts (where applicable) and subsequent report, disclosure of documents and subsequent exchange, preparation of witness statement and exchange.

6.2 Part 31 rules of disclosure and inspection; the

nature of standard and specific disclosure; disclosure and disproportionality; mutual disclosure of witness statements; requirement to serve and use of statements at trial (part 32 and the Civil Evidence Act 1995); privilege and withholding privileged documents; procedure for making or challenging claims to privilege

6.3 The importance of preparing witness statements early (“front-loading litigation”) and the need for exchange; how evidence is adduced including the rules relating to the preparation and excanage of witness statements, witness summons and the form and nature of affidavits (PD32) 6.4 The use of experts and where it is appropriate

to request a report; the criteria used by the court in relation to expert witnesses (Part 35), eg, experts are court officials and, thus, impartial; instructed by the parties; overriding


6.5 Analyse a given legal situation on the

key steps made in the progress of a matter to trial in order to offer practical advice and assistance

duties; rules relating to evidence of opinion; methods of giving expert evidence; general requirements to give written reports; written questions to experts; courts power to order discussion between experts and the experts right to ask for directions


and assistance

7 Understand offers of settlement and interim payments and remedies

7.1 Explain formal offers to settle 7.2 Explain the use of interim payments 7.3 Explain other interim remedies available 7.4 Analyse a given legal situation on offers

of settlement and interim payments and remedies in order to offer practical advice and assistance

7.1 Part 36 offers; nature of the offer when made by claimants and defendants; rules and procedure for making and withdrawing an offer; cost consequences of an offer made by claimant and defendant respectively including any relevant case law e.g. Carver v BAA Plc (2008); EWCA Civ 412 ; interest and the deduction of benefits including the role of the compensation recovery unit.

7.2 Nature and availability; procedure and grounds

for making a payment (Part 25); voluntary payments

7.3 Procedure and grounds for granting an interim

order; interim remedies available under Part 25 including, eg, declarations, inspection of property, search orders freezing orders


and assistance

8 Understand trial procedure 8.1 Explain the procedures involved within a trial

8.1 Procedures at the trial, ie, witness attendance, production of documents, trial bundles and


8.2 Explain the rules of civil evidence and

their effect at trial 8.3 Analyse the principle of costs and its

application at trial 8.4 Analyse a given legal situation on trial

procedure in order to offer practical advice and assistance

skeleton arguments/reading lists/authorities; order of events including sequence of events

8.2 The rules relating to hearsay; evidence of

admissions and the provisions of the Civil Evidence Act 1968 and 1995

8.3 How costs usually follow the event and are

added to the judgment debt (claimant) or awarded to the defendant if claim fail; rules relating to summary assessment (Part 46 and Supreme Court Costing Office (SCCO) Guide to Summary Assessment) and knowledge of the procedure


and assistance

9 Understand orders and judgments, how they are enforced and the procedure of appealing a judgment

9.1 Outline the orders available and describe how decisions of the court become judgments

9.2 Explain the enforcement remedies

available to a winning party 9.3 Explain the appeals procedure

9.1 Types of judgments available, including interim payments, payments by instalments, orders requiring an act to be done (“unless orders”), penal notices and consent orders; rule of drawing up judgments (Part 40); the use of consent orders and correction of errors to judgments

9.2 General rules about enforcement (Part 70);

obtaining information (Part 71); third party debt orders (Part 72); charging order (Part 73); warrant of control/writ of control; attachment of earnings; warrants of delivery; bankruptcy

9.3 Nature of appeal; the appeals framework;

procedural steps (Part 52), including applications for staying execution


9.4 Analyse a given legal situation on orders and judgments in order to offer practical advice and assistance

9.4 Analysis of a complex scenario to offer advice and assistance; drafting of suitable consent orders

10 Understand the civil costs regime 10.1 Identify the rules relating to costs 10.2 Analyse the impact of legislation and

litigation on the costs regime 10.3 Analyse a given legal situation on the

civil costs regime in order to offer practical advice and assistance

10.1 An outline of Parts 43 to 48 of the CPR and related Practice Directions; in particular, the rules relating to detailed assessment of costs

10.2 An understanding of the extension of the fixed

fee regime; litigation surrounding conditional fee agreements and breaches of the indemnity principle; eg, Pilbrow v Pearless De Rougemont & Co (a firm) (1999) 3 All ER 355 CA; the move towards challenging firms’ retainers for failure to fully comply with the rules of professional conduct


and assistance, eg, an analysis of when funding may become an issue in litigation and what steps should be taken; the application of the principles of costs to a scenario



understanding of Civil Litigation Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 44 Personal Injury Legal Advice and Casework


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Na


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Unit 16

Title:

The Practice of Company and Partnership Law

Level:

6

Credit Value:

15




1 Understand the key practical, financial and fiscal implications in choice of business medium

1.1 Analyse the relative advantages and potential disadvantages of different business media

1.2 Explain the tax implications for each of the

different business media 1.3 Analyse a given legal situation on choice of

business medium in order to offer practical advice and assistance

1.1 Media to include: sole trading, partnership, limited liability partnership, private limited company, public limited company, company limited by guarantee; implications to include: liability, eg, joint and several liability, unlimited and limited liability, eg, Salomon (1897); formal requirements; practical considerations, eg, nature, size and risk of business

1.2 Tax definitions, eg, income tax, corporation

tax, capital gains tax, inheritance tax, stamp duty and VAT; responsibility of individuals and/or the business media, the rates of taxation for different media and individuals, and the procedure for taxation

1.3 Analysis of a complex scenario to offer

practical advice and assistance, eg, taking account of the client’s needs, business types available and potential liability

2 Understand the practices and 2.1 Explain the requirements for the formation 2.1 Statutory requirements: Partnership Act (PA)


procedures relating to the formation and management of a partnership

of partnerships 2.2 Explain the powers, duties and liabilities of

partners 2.3 Analyse a given legal situation on the

formation and management of a partnership in order to offer practical advice and assistance

1890; partnership agreements; unlimited liability; the Limited Partnership Act (LPA) 1907; s4: at least 1 general partner liable; “sleeping partners”; the Limited Liability Partnership Act (LLPA) 2000: limited liability; registration procedure

2.2 Contractual relationship; agency relationship;

within authority; duty of care and skill; fiduciary duties, eg, disclosure to each other, declare personal financial benefit, no competition; liabilities, eg, liability for contracts, debts and legal obligations


practical advice and assistance, eg, the relative merits of the different partnership types to the client in light of an existing or proposed business; drafting clauses within a partnership agreement

3 Understand the procedure for the

termination of a partnership 3.1 Explain the procedure for the termination

of a partnership 3.2 Explain the effects of termination 3.3 Explain the procedure when there is a change

of partners 3.4 Explain the effect of insolvency on a partnership

3.1 Statutory procedures: Partnership Act 1890 eg, automatic termination, service of notice; dissolution by the court; limited partnerships; limited liability partnerships

3.2 Procedures and effects: statutory notices;

valuation of assets; distribution of assets 3.3 Partnership agreement provision; PA 1890:

default provision (terminates if one party leaves); process of sale of interest in partnership; effect of sale; effect of retirement

3.4 PA 1890: effect of unlimited liability; joint and

several liability; Insolvent Partnerships Order 1994; provision for bankruptcy of a partner; dissolution in default of provision;



procedure for the termination of a partnership in order to offer practical advice and assistance

Partnership Voluntary Arrangement; LPA 1907 (minimum of 1 partner with unlimited liability); LLPA 2000 and limited liability


practical advice and assistance, eg, advice on the appropriate actions to be adopted in the event of the termination of a partnership

4 Understand how to form a limited company

4.1 Explain the process relating to promotion and registration of a company

4.2 Explain the purpose of the memorandum

of association and the default provisions 4.3 Explain the purpose of the articles of

association and the default provisions 4.4 Analyse a given legal situation on the

formation of a limited company in order to offer practical advice and assistance

4.1 Definition and role of promoter, ie, Twycross v Grant (1876-77); formation of the limited company: the role of the Registrar of Companies; Companies House (CH) requirements, eg, constitutional requirements (MA & AA) and statements; fees; electronic registration; certificate of incorporation; private or PLC; trading certificate; effect of non-compliance; the purchase of “off the shelf” companies: removing/adding directors, changing registered office, drafting board minutes, transfer of shares

4.2 Definition; default provisions; s8 Companies

Act (CA) 2006 4.3 Definition; Model Articles default provisions 4.4 Analysis of a complex scenario to offer

practical advice and assistance, eg, the necessary steps a promoter would need to take to set up a registered company; drafting a memorandum of association and articles of association

5 Understand the implications of incorporating as a registered

5.1 Explain the disclosure requirements of incorporation and the potential loss of

5.1 Documentation to Companies House, eg, accounts, registration of charges, registration


company control 5.2 Explain the tax implications of

incorporation 5.3 Analyse a given legal situation on the

implications of incorporation in order to offer practical advice and assistance

of directors, shares; separate legal entity; members; directors

5.2 Income tax, corporation tax, CGT; stamp

duty; notification and liability 5.3 Analysis of a complex scenario to offer

practical advice and assistance, eg, advising the client of the most appropriate form of incorporation, taking account of the process, tax liability, disclosure and control

6 Understand the practices relating to

the convening and conduct of shareholder meetings

6.1 Explain the requirement and process of convening general shareholder meetings

6.2 Explain the process and rules governing

members’ resolutions 6.3 Explain the rules and procedures to

provide minority shareholder protection 6.4 Analyse a given legal situation on the

practices relating to the convening and conduct of meetings in order to offer practical advice and assistance

6.1 Definitions, eg, AGM, GM; no requirement for AGM for private company unless a traded company; notification- requirement, content and process; quorum; Articles & Model Articles

6.2 Ordinary and Special resolutions; voting

procedures; elective and written resolutions; process; voting: arrangements; restrictions on voting; Model Articles

6.3 Relevant case law, eg, Foss v Harbottle

(1843); s994 CA 2006: unfair prejudice; s122 Insolvency Act (IA) 1986: just & equitable winding up; burden of proof


practical advice and assistance, eg, advising a client on the rights, powers and duties of the member

7 Understand the practices relating to the role and responsibility of directors and other company officers

7.1 Explain how a director is appointed, retained, remunerated and removed

7.1 Definition CA 2006: s741; requirements, eg, number, age, natural, ie see ss154, 155, 157; initial in statement; appointment: under Articles, Regulation 17 (Model Articles for Private Companies) and Regulation 20

Page 207 of 284

7.4 Explain the appointment role, duties and removal of a company secretary or an

This specification is for 2011 examinations

7.2 Differentiate between de jure, de facto and

shadow directors 7.3 Explain how directors exercise their duties

and powers both as a board and as individuals

(Model Articles for Public Companies); by members resolution; registration; disclosure; restrictions on appointment, eg, disqualification under Company Directors’ Disqualification Act (CDDA) 1986, bankrupt, eg, R v Brockley (1994); service contracts: ss228 and 229 CA 2006; resignation in writing (Model Articles); removal: s168 CA 2006 (old s303); Bushell v Faith (1970) clause; compensation: Southern Foundries v Shirlaw (1940)

7.2 Definition of shadow, ie, Re Hydrodan

(Corby) Ltd (1994); s251 IA 1986; s22(5) CDDA 1986; Secretary of State for Trade and Industry v Deverell (2001)

7.3 The importance of board meetings and the

requirement for minutes of these meetings; executive and non-executive directors; exercise of powers, eg, standard of care, ie, Re City Equitable (1925); s214 IA 1986; s174 CA 2006; fiduciary duties and duties of care and skill; statutory duties, ie, s170 CA 2006 and ss171-177 CA 2006; statutory factors to be considered; s232 CA 2006: cannot exempt by provision in articles etc; can insure directors s233 CA 2006; effects of breach; court may relieve a director of liability for breach in whole or in part if has acted honestly and court thinks just in circumstances, eg, Re Duomatic (1969); disqualification: ss2-5 and 11 CDDA 1986; s178 CA 2006 breach of duty liability; s180 CA 2006 consent

7.4 Company secretary: required for PLC, ie,


auditor 7.5 Analyse a given legal situation on the role

and responsibility of directors and other company officers in order to offer practical advice and assistance

s271 CA 2006; for a private company not required, ie, s270 CA 2006; qualifications: s273 CA 2006; duty of care; liability, ie, burden of proof; auditors, ie, s477 CA 2006: small company exemptions; s480 CA 2006: exemption for dormant companies; appointment: s485 private company; s489: PLC; continuing duty of care, ie, burden of proof; resignation and/or removal, ie, s.510 CA 2006


practical advice and assistance, eg, advice on the potential personal liability of company officers and the processes involved in establishing liability

8 Understand when and how a

company’s constitution may be altered

8.1 Explain when and how a memorandum of association and articles of association may be changed

8.2 Analyse a given legal situation on when

and how a company’s constitution may be altered in order to offer practical advice and assistance

8.1 Definitions, eg, memorandum, objects clause, articles; s8 CA 2006; s18 CA 2006; altering the articles, eg, special resolution, registration with Companies House; model articles; agreement to alter articles, ie, Cane v Jones (1980); special resolution; ss125-7 CA 2006; notify Registrar: s380 CA 2006; contractual effect of s33 CA 2006


practical advice and assistance, eg, advice on the process and effect of alteration of clauses in the company’s constitution

9 Understand the procedures for the issue of share capital

9.1 Explain the different types of share and their benefits to the company and member

9.1 Definition of share and interest; classes of share and rights, eg, ordinary and preference; liability limited to nominal value; dividends and the right to a dividend; declaration by board; rights of shareholder: possibly under s33 CA 2006; s994 CA 2006; variation of class rights, s630 CA 2006; Articles and entrenchment, s22 CA 2006


9.2 Explain the restrictions on allotment of

shares, the process of share issue and possible restrictions on transfer and transmission

9.3 Analyse the restrictions on purchase of

own shares, offering of financial assistance and the reduction of capital


procedures for the issue of share capital in order to offer practical advice and assistance

9.2 Definitions, eg, issued, paid up and called

up; authorised share capital abolished (ss9 and 10 CA 2006); disclosure to members: ss31 and 32 CA 2006; increase: s617 CA 2006, Ordinary Resolution; directors’ right to allot: s550 CA 2006, ss549 and 551 CA 2006; authority: s569 CA 2006; pre-emption rights; possible unfair prejudice: s994; PLC requirements for issue, eg, prospectus; drafting stock transfer forms and share certificates; updating of company share records and electronic transfer (eg, CREST)

9.3 Case law, eg, Trevor v Whitworth (1887);

reduction of capital in articles (Model Articles); ss642-644 CA 2006: a private company can pass a Special Resolution and make a declaration of solvency; dividends may only be paid from profits; discounting shares (s542 CA 2006); sale for non-cash assets; assistance for purchase and selling to subsidiaries; the possible personal liability of directors


practical advice and assistance, eg, advice on the most appropriate form of share issue for the company

10 Understand company borrowing 10.1 Explain the purpose and process of debenture issue, including the fixed and floating charge

10.2 Analyse the effectiveness of fixed and

floating charges

10.1 Case law, eg, Re Yorkshire Woolcombers (1904); book debts; bank accounts; registration process and effect

10.2 Registration priority; crystallisation; relevant

case law, eg, Re New Bullas (1994); Brumark (2000); avoidance of charges on liquidation; liability


10.3 Explain retention of title clauses 10.4 Analyse a given legal situation on

company borrowing in order to offer practical advice and assistance

10.3 Relevant case law: eg, The Romalpa clause

(Aluminium Industrie Vaasen v Romalpa Aluminium 1976); identification of property with interest retained


practical advice and assistance, eg, advice on the benefits and disadvantages to the company and creditors of the different methods of borrowing

11 Understand the administration and

disclosure requirements of the company

11.1 Explain the administrative and disclosure requirements of company officers

11.2 Explain the key documents and records

required for the maintenance of registration


administration and disclosure requirements of the company in order to offer practical advice and assistance

11.1 Filing requirements, eg, resolutions, share issues, charges, appointment and departure of directors, annual return, accounts; officers responsible; penalties for non-compliance; company searches

11.2 Statutory records, eg, registers of members,

directors and secretaries; charges; directors’ interests; minute book; accounting records


practical advice and assistance, eg, advice on the administrative and disclosure requirements of company officers

12 Understand the responsibilities and process of corporate insolvency

12.1 Explain the company’s duties and responsibilities if the company is insolvent

12.2 Explain the purpose and process of

company voluntary arrangements

12.1 Definitions; duty to creditors, eg, West Mercia (1988); insolvency practitioners

12.2 Definition; CA 2006: schemes of

arrangement; company voluntary arrangements: IA 1986, as amended IA 2000; process; supervisor; proposal; meetings and approval; failure into administration; success into solvency


12.3 Analyse the purpose and process of administration, administrative receivership and receivership

12.4 Explain the process of winding up 12.5 Explain the potential liabilities of company

officers 12.6 Analyse a given legal situation on the

responsibilities and process of corporate insolvency in order to offer practical advice and assistance

12.3 Definitions; rescue regime; Enterprise Act 2002, Schedule B1; administrator appointment; purposes; receiver’s appointment; purposes; administrative receiver’s appointment; purposes; effects of appointment of each; role, powers and duties; avoidance powers; collection and distribution; Enterprise Act 2002: priority of distribution, ie, Crown -“top-slicing”

12.4 Members’ and creditors’ voluntary winding

up; process; resolutions; statements; appointment of liquidator; effect; priority; court winding up: s124 IA 1986; the process of ‘striking off’ the Register

12.5 s214 IA 1986: wrongful and fraudulent

trading (s213); provisions and misfeasance (s212); disqualification CDDA 1986


practical advice and assistance, eg, advice on the appropriate action when the company is thought to be insolvent



of the Practice of Company and Partnership Law




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Unit 17 Title

Conveyancing

Level

6

Credit Value

15

Learning outcomes The learner will

Assessment criteria The learner can


1 Understand conveyancing practice in relation to interests in land and the transfer of legal estates

1.1 Explain the practice of land registration in relation to residential conveyancing transactions

1.1 Compulsory first registration: transfer or mortgage of unregistered freehold; a lease for more than seven years; situations where a shorter lease may trigger a first registration (eg, not continuous); other triggers contained in Land Registration Act 2002; applying for first registration: apply on Form FR1 accompanied by: completed Form DL (document list); disclosable overriding interests (Form D1); original title documentation (including conveyancing searches); fee; interest can be protected by notice or restriction on a registered title; by unilateral or agreed notice (procedures); standard or non-standard restriction (Form RX1); cautions against dealings (on older titles); the difference between overriding and registerable interests: an overriding interest binds successors in title even if not registered, eg, rights of person in actual occupation or prescriptive easement in actual use; an interest which is not overriding (or which ceases to be overriding) will not bind


1.2 Describe the classes of title and how

these can be upgraded 1.3 Explain registration of Interests against

unregistered land 1.4 Explain the differences between types of

title 1.5 Explain the difference between a joint

tenancy and a tenancy in common 1.6 Explain the system of commonhold as

an alternative to traditional freehold/leasehold titles

a successor in title unless registered; some interests can be protected by registration even though technically overriding, eg, a lease of between three and seven years may be protected by registration against a landlord’s title; similarly, prescriptive easements; there is also an obligation to disclose such interests on first registration

1.2 Absolute; possessory; good leasehold; process

of upgrading 1.3 Land charge; registration against name;

process of registration; examples: C(i) (puisne mortgage), C(iv) (estate contract), D(ii) (restrictive covenant), D(iii) (easement) pending action, writs and order, caution against first registration)

1.4 Freehold, leasehold, commonhold titles 1.5 Right of survivorship; undivided shares;

severance; trust documents; Stack v Dowden (2007) and other relevant case law

1.6 In outline only: Part 1 Commonhold and

Leasehold Reform Act 2002; Land Registry process; documentation required; key differences between commonhold and long leasehold; advantages/disadvantages; note that candidates will not be required to draft commonhold documentation neither will candidates be tested on their ability to act in a commonhold transaction


1.7 Explain how a property can be transferred or charged when a paper-owner has died, lost capacity or is otherwise absent


principles and practice relating to transfer of legal estates and interests in land in order to offer practical advice and assistance

1.7 When a registered proprietor has: died: survivorship, death certificate, probate/letters of administration; overreaching/appointment of second trustee; has lost mental capacity: Mental Capacity Act 2005, Lasting Power of Attorney, Enduring Power of Attorney, mental illness, loss of mental capacity; is bankrupt or subject to a winding up order: powers of bankruptcy trustee/liquidation/administrator; is absent: General Power of Attorney, Powers of Attorney Act 1971


and assistance

2 Understand how to take conveyancing instructions

2.1 Explain how to use conveyancing precedents in the drafting of standard documentation

2.2 Describe the process of negotiating non-

standard conveyancing documentation with another party’s lawyer

2.3 Explain how to take conveyancing

instructions for a range of transactions

2.1 Published and on-line precedents, eg, the encyclopaedia of forms and precedents

2.2 Draft document prepared and submitted for

approval; proposed amendments; travelling draft; negotiations on terms/wording; clean draft prepared incorporating agreed amendments

2.3 Sale or purchase of a residential freehold, eg,

finance, parties, deadlines, dependent transactions, special instructions; sale or purchase of an existing residential leasehold; as above, and also landlord/managing agents/service charges; a grant (or purchase) of a new residential lease; as for existing leases, plus main lease terms, heads of terms, extent of demise (by reference to plan),


2.4 Analyse a given legal situation on how to

take conveyancing instructions in order to offer practical advice and assistance

proposed maintenance/service charges; the sale (or purchase) of land comprising part of a wider title; as for purchase of whole, as well as heads of terms, accurate scale plan identifying land to be purchased, new easements to be created or reserved, new covenants


and assistance, eg, drafting common conveyancing documentation (using the learner’s own words), ie, contracts; transfers; lease clauses (but not whole leases)

3 Understand how to prepare a contract for sale

3.1 Describe the legal requirements for creating a binding contract for the sale of land

3.2 Explain the significance of full and

limited title guarantee 3.3 Explain the key features of a contract for

sale for any residential freehold or leasehold transaction

3.4 Interpret and identify necessary

amendments in a draft contract prepared by another lawyer

3.5 Explain payment (or receipt) of a deposit

on exchange of contracts

3.1 Section 2 of Law of Property (Miscellaneous) Provisions Act 1989

3.2 The difference between full title guarantee;

limited title guarantee and the absence of any title guarantee; Law of Property (Miscellaneous Provisions) Act 1994; define full/limited guarantee; situations where full/limited guarantee presumed

3.3 Standard Conditions of Sale; front page and

special conditions; transfer/lease 3.4 Check terms of draft contract against client

instructions and amend as appropriate 3.5 Conventional 10% deposit as security; how

deposit is paid on exchange; utilisation of deposit; stakeholder/agent; utilisation of deposit when buying “off-plan”; reduced deposits


3.6 Explain how to exchange contracts in any given situation

3.7 Explain how to give a party an option to

purchase land 3.8 Describe documentation to be sent out

with a draft contract (contract package) 3.9 Analyse a given legal situation on

preparing a contract for sale in order to offer practical advice and assistance

3.6 Law Society formulae A, B and C; achieving simultaneous exchange

3.7 Perpetuities and Accumulations Act 1964;

Section 2 Law of Property (Miscellaneous Provisions) Act 1989; Protection by registration

3.8 Title information; Property Information Form;

Fixture/Fittings questionnaire 3.9 Analysis of a complex scenario to offer advice

and assistance; eg, using Standard Conditions of Sale, but otherwise in the learner’s own words, drafting a contract for sale for any residential freehold or leasehold transaction (ie drafting front page and special conditions; attached draft transfer/lease as required); interpreting and amending a draft contract prepared by another lawyer (ie checking terms of draft contract against client instructions and amending as appropriate); using learner’s own words, drafting provisions giving a party an option to purchase land and exercising an existing option

4 Understand title and its

investigation 4.1 4.2 Deduce title

4.1 Explain the purpose of an Energy Performance Certificate (EPC) and what it contains

4.2 Official Land Registry copies; title plan; official

copies of documents referred to in register of title; existing lease/underlease; unregistered roots of title; following a chain of title; answering pre-contract enquiries and title requisitions


4.3 Explain how to raise pre-contract enquiries and title requisitions

4.4 Describe the relevant pre-contract

searches 4.5 Explain what options are available to

overcome title difficulties 4.6 Analyse a given legal situation on title

investigation in order to offer practical advice and assistance

4.3 Reviewing title documentation supplied and identifying where clarity required; drafting standard title requisitions and pre-contract enquiries

4.4 For example: Local Searches; LA enquiries;

utility; environmental search, chancel-check; coal mining enquiries

4.5 Identifying title difficulties; title indemnity

insurance; deed of release; confirmatory documentation; Lands Tribunal


and assistance; eg, in a given situation, drafting a detailed report on title to enable a client to make an informed decision on whether to proceed with a purchase (ie, general description of title, plans, access, service easements, title restrictions, enforceability, regulatory matters, quality of title, options); drafting standard title requisitions and pre-contract enquiries

5 Understand issues relating

specifically to leasehold property transactions

5.1 Explain the structure of a residential lease

5.1 Distinguishing between a lease and an underlease; a lease derives directly out of the freehold; an underlease derives out of a superior lease; apparent from the Property Register of the Register of Title whether the lease derives out of a freehold or superior lease; typical structure of a long residential ground lease of a flat: Land Registry standard clauses; parties; premium paid; extent of demise (referring to schedule); terms; ground rent; service charges; tenant’s covenants;


5.2 Explain how to apply for a ground

landlord’s consent (where such consent is required in any situation)

5.3 Explain what due diligence enquiries

should be made to alert a lease-buyer to outstanding liabilities

5.4 Explain the rights conferred on

residential leaseholders of flats to enfranchise collectively the freehold of their block

landlord’s covenant for quiet enjoyment; landlord’s covenants as regards providing maintenance/ insurance/communal areas; forfeiture clause (and associated declarations); schedule; attestation; note modern practice for lease “Particulars” to be in one place (usually towards the first few pages of the lease)

5.2 Identify whether a landlord’s consent is

required; most (though not all) residential leases are freely assignable; in exceptional cases landlord’s consent may be required before an assignment or underletting can be completed; Section 19 Landlord and Tenant Act 1927 and Landlord and Tenant Act 1988 is then applicable; landlord’s consent is routinely required for alterations/change of use; again Section 19 Landlord and Tenant Act 1927 is applicable; written application (with references) for assignment/underletting; apply with detailed plans and specifications for alterations; landlord’s consent must be formally documented; undertaking for landlord’s costs

5.3 Three years service charge accounts; enquiry

as to programmed maintenance and/or improvements as well as work already carried out but not yet charged; service charge regime contained in Landlord and Tenant Act 1985 (as amended by Commonhold and Leasehold Reform Act 2002)

5.4 Leasehold Reform Housing and Urban

Development Act 1993 (as Amended by Commonhold and Leasehold Reform Act 2002); qualifying criteria; intermediate interests; price payable


5.5 Explain a residential leaseholder’s (or the prospective buyer of an existing lease’s) right to extend individually a lease

5.6 Outline in each case the process to be

undertaken in exercise of the right to enfranchise or extend

5.7 Analyse a given legal situation on

leasehold issues in order to offer practical advice and assistance

5.5 Leasehold Reform Housing and Urban Development Act 1993 (amended as above); qualifying criteria; price payable; permitted extensions possible; length of extension

5.6 An outline of enfranchisement: RTE Company,

participation notice, initial notice, counter notice, valuation, other terms and conditions, conveyancing process, role of court/Leasehold Valuation Tribunal; an outline of lease extension: notice/counter notice procedure, valuation, intermediate interest, extended lease by way of substitution of existing lease, role of court/LVT, conveyancing process

Note that candidates will not be asked to draft

documentation under the 1993 Act; neither will candidates be tested on their ability to carry out a conveyancing transaction involving statutory enfranchisement/lease extension


and assistance

6 Understand what easements or management arrangements need to be put in place when transferring or leasing part of a wider title

6.1 Explain the process of registering a purchase of land forming part of a wider registered title

6.2 Identify what access and/or service

easements should be granted or reserved

6.1 As for a registration of transfer of whole, save that the property will be transferred using Land Registry Form TP1 to which must be attached an accurate scale plan of the property transferred which conforms to Land Registry requirements; priority search must be made using Form [OS2 ] attaching same scale plan

6.2 Identify mains services and whether property

directly fronts adopted public highways; identify what rights of access and service easements (eg, electricity, gas, water, surface and water drainage) need to be granted or reserved


6.3 Explain how issues of future maintenance of a building or of an access or other service facility should be addressed


easements and management arrangements in order to offer practical advice and assistance

6.3 Practical ways to ensure that a building or private service road or utility is properly maintained at the shared expense of the occupants or users; making use of the facility conditional on contributions towards future maintenance may overcome difficulty in enforcing positive covenants


and assistance; eg, (using learner’s own words) drafting an easement or reservation for access and/or services; or covenant, ie, easements conferring vehicular and/or pedestrian access; common service easements (for gas, water, electricity, drainage etc); restrictive/positive covenants

7 Understand the legal responsibilities in relation to funding property transactions

7.1 Explain to a prospective buyer the ways in which property transactions may be financed

7.2 Explain the separate duties owed to a

mortgage lender 7.3 Explain how to act for a mortgage lender

7.1 In respect of: types of mortgage finance available, need for independent survey, bridging finance

7.2 Separate client; Code of Conduct; CML

Lenders Handbook contains standard instructions

7.3 Different situations: in the case of a first

mortgage of a registered freeholder or leasehold title: CML Lenders Handbook, ie, standard instructions, need to ensure good and marketable title and that the loan will be properly secured; second mortgage: subject prior mortgage, notification to first mortgagee; bridging finance: undertaking to be given; remortgage: redeem existing mortgage with grant of new mortgage; redemption of existing mortgage: undertaking for title deeds, redemption out of sale proceeds, form of discharge/ENDS/EDS; circumstances when a



funding of property transactions in order to offer practical advice and assistance

prospective co-mortgagor must be separately advised (Royal Bank of Scotland v Etridge (No. 2) (2001))


and assistance

8 Understand other pre-exchange issues in relation to planning/building regulations and newly built residential properties

8.1 Explain the need to ensure compliance with both planning and building regulations approval

8.2 Explain the options available when there

is existing regulatory non-compliance with planning and building regulations approval

8.3 Explain the Buildmark scheme in relation

to newly built residential properties 8.4 Explain what remedies become

available under Buildmark when defects become apparent

8.5 Explain how to act for a client

purchasing an uncompleted property “off plan”


planning/building regulations and newly built residential properties in order to offer practical advice and assistance

8.1 Awareness that planning permission may be an issue; Town and Country Planning Act 1990 (as amended); most structural building work is subject to building regulations (even when planning permission not required); evidence of building regulation approval

8.2 Identifying the non-compliance; assessing the

risk; advising on solution; the possibility of indemnity insurance

8.3 Items guaranteed for two years; items

guaranteed for 10 years; documentation required

8.4 Against builder; against NHBC 8.5 Check planning permissions; building

regulation approval; vendor’s title; check transfer; plan of unit; payment of deposit; Section 38 (road making agreement); check service easements; new estate covenants


and assistance


9 Understand how to complete a conveyancing transaction

9.1 Prepare priority searches 9.2 Explain procedures for engrossment,

execution and dating of documentation 9.3 Explain how to arrange a transfer of

funds for completion 9.4 Explain the function of a detailed

completion checklist 9.5 Analyse a given legal situation on the

completion of a conveyancing transaction in order to offer practical advice and assistance

9.1 Where whole of land in a title is being purchased: OS1, correct date of search period, priority period (significance of); part of land comprised in a wider title is being purchased: OS2 (with scale plan); a new lease (or underlease is being purchased): OS2 (with scale plan); other searches: bankruptcy search (K16) against mortgage borrower, K15 (unregistered)

9.2 Agreed document “engrossed” on durable

paper (often in several parts) for execution by parties; correct attestation clauses for individuals and/or companies; execution under power of attorney; dating of executed document (by way of completion)

9.3 Draw down mortgage funds; arrangements for

telegraphic transfer to vendor’s solicitor; money held to order pending formal completion

9.4 List of documents to be handed over/received,

eg, money to be paid over/received; check vacant possession/keys etc before formal completion; date documentation by way of completion; undertakings to be given


and assistance, eg, completing a completion checklist

10 Understand how to deal with post-completion formalities

10.1 Explain the requirements of stamp duty land tax

10.1 Assessment of duty; completing SDLT 1 and paying duty on paper and on-line; additional SDLT forms required; receive SDLT 5 (confirming compliance); note: candidates will not be required to complete a SDLT form


10.2 Explain an application to the Land

Registry 10.3 Analyse a given legal situation on acting

for the first buyer of newly built residential property in order to offer practical advice and assistance

10.2 For: registration of a dealing with whole of

existing registered title: AP1, DS1, transfer; SDLT 5, OS1, fee; registration of a dealing with part of an existing registered title: AP1, DS1, TP1, SDLT 5, charge, priority search OS2, fee; first registration of a long residential lease: FR1, DL, DS1, new lease, SDLT 5, charge, priority OS2


and assistance; drafting of relevant post-completion documentation

11 Understand how to deal with late completion and other default

11.1 Explain the significance of a contractual completion date

11.2 Explain the financial consequences and

liabilities arising out of late completion 11.3 Explain the consequences of

misdescription and/or misrepresentation 11.4 Explain how time can be made “of the

essence”

11.1 Presumption that time not of the essence, but more than just a target date

11.2 Automatic contractual interest; paid after

deduction of tax (corporation/individual abroad); tax deduction certificates; circumstances when interest non-payable; equivalent allowance against purchase price (seller’s delay); seller must elect whether to take interest or rents and profits; possible claims for other financial losses (eg, hotel expenses)

11.3 Contractual consequences; consequence of

inaccurate or dishonest response to pre-contract enquiries

11.4 A party ready and willing to complete can

serve a Completion Notice in accordance with the standard conditions making time of the essence; failure to complete within the extended deadline gives the innocent party the



a deposit can become forfeit 11.6 Analyse a given legal situation on how

to deal with late completion and other default in order to offer practical advice and assistance

right to rescind the contract (with forfeiture of deposit in the event of buyer’s default) or in either case the possibility of application for specific performance if the innocent party elects to affirm the contract

11.5 Buyer fails to complete within Completion

Notice deadline 11.6 Analysis of a complex scenario to offer

advice and assistance; eg, drafting (in the learner’s own words) a valid notice to complete (ie, in learner’s own words, but making express reference to the relevant General Condition and otherwise legally effective as a notice to complete)



understanding of Conveyancing Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Unit 18 Title:

Criminal Litigation

Level:

6

Credit Value:

15




1 Understand the overall structure of the courts with criminal jurisdiction

1.1 Describe the jurisdiction of the courts 1.2 Explain the processes for appeal and

the circumstances where each is appropriate

1.1 (a) Magistrates Court, ie, initial appearance (bail and legal representation), sending indictable cases to the Crown Court, plea before venue and mode of trial, summary trial and sentencing (b) Crown Court, ie, proceedings relating to trial on indictment, appeals from the Magistrates court; Administrative Court, ie, judicial review of interim decisions, appeal by way of case stated; (c) Court of Appeal, ie, appeal by defendant against conviction or sentence, Attorney-General’s references on points of law, prosecution appeals against terminating rulings and unduly lenient sentences; (d) House of Lords, ie, appeal on a point of law of general importance (certified question)

1.2 Magistrates Court to Crown Court, ie, by

defence and against conviction (rehearing by non-jury Crown Court) or sentence, time limits, powers of Crown Court; Magistrates Court or non-jury Crown Court to Administrative Court, ie, point of law, nature of the case stated procedure, time limits, powers of Administrative


1.3 Explain the roles of individuals involved

in the court system 1.4 Describe the principal provisions of the

primary and secondary legislation establishing and regulating the criminal courts

1.5 Describe the relevance of the Human

Rights Act to criminal proceedings 1.6 Explain the jurisdiction to stay

proceedings as an abuse of process 1.7 Analyse a given legal situation on the

structure of the criminal courts in order

Court; Crown Court to Court of Appeal, ie, against conviction, sole ground is that conviction is unsafe, misdirection or error of law, power to order retrial against sentence, powers, function of guideline judgments, Attorney General’s reference, establishing an authoritative but hypothetical ruling, terminating rulings, reopening cases, unduly lenient sentences, scope of ‘unduly’ lenient; Administrative Court or Court of Appeal to House of Lords, ie, point of law, by leave only

1.3 Qualification and usual jurisdiction of Lords of

Appeal in Ordinary, Lords Justices of Appeal, High Court Judges, Circuit Judges, Recorders, District Judges (Magistrates Courts); composition and function of the jury; Juries Act 1974 qualification and function of JPs, scope of criminal jurisdiction and role of the legal advisor

1.4 An understanding of the primary legislation, eg,

Magistrates Court Act 1980, Courts Act 1971, Courts Act 2003 and secondary legislation, eg, Criminal Procedure Rules 2005 in particular the overriding objective and the obligations imposed on the defence in consequence

1.5 An understanding of the European Convention

on Human Rights Arts 5-7. 1.6 Relevant case law, eg, Humphreys (1975),

Beckford & Daley (1991), R v Derby CC ex p Brooks (1984), A-Gs Reference (No 1 0f 1990), R v Feltham MC ex p Ebrahim (2001)


and assistance


to offer practical advice and assistance

2 Understand police powers in

relation to the investigation of crime

2.1 Explain the powers of stop and search 2.2 Explain the powers to search premises

and persons, and obtain samples (eg, fingerprints)

2.3 Explain the powers of arrest and

detention 2.4 Explain the powers in relation to

questioning 2.5 Analyse a given legal situation on police

powers in relation to the investigation of crime in order to offer practical advice and assistance

2.1 Availability and applicability of stop and search

powers: Police and Criminal Evidence Act 1984 (PACE) ss 1-4 and Code A; ss 44-7 Terrorism Act 2000 Part 4

2.2 Availability and applicability of powers to search

premises and persons: PACE ss8-23 and 32; 54-55 and Code B; provisions relating to samples: PACE ss 61 65; PACE Code C s 17 and Annex A

2.3 Availability and applicability of powers of arrest

and detention: PACE ss 24-53; 56-58 and Codes C and G

2.4 Availability and applicability of powers in relation

to questioning: Codes C, E and F; Criminal Justice and Public Order Act 1994 ss 34-38; drafting a written statement as an alternative to answering questions


and assistance

3 Understand the rules relating to public funding of advice and representation in criminal matters

3.1 Describe the scope of the work which can be done by one’s own solicitors and duty solicitors under the Unified Contract (Crime)

3.1 The principal terms of the Unified Contract (Crime) and guidance/instructions issued by the Legal Services Commission/Criminal Defence Service so far as they are relevant to the conduct of proceedings and the grant of representation in individual cases; the scope of the police station and court duty solicitor


3.2 Explain the purpose of a

representation order 3.3 Outline the means criteria for the grant

of representation 3.4 Analyse a given legal situation on the

public funding of advice and representation in order to offer practical advice and assistance

schemes and the role of CDS direct 3.2 Its purpose; applying for a representation order; the merits section of an application for a representation order; the statutory merits criteria 3.3 The statutory means criteria and the procedure

for evaluation of applications 3.4 Analysis of a complex scenario to offer advice

and assistance, eg, completing the merits section of an application for a representation order

4 Understand the law relating to bail

in criminal proceedings 4.1 Explain the powers of the police and

the courts in relation to bail 4.2 Analyse a given legal situation on the

law relating to bail in order to offer practical advice and assistance

4.1 Granting bail; procedures to review or appeal bail decisions; the consequences of breach of bail: Bail Act 1976; PACE ss 37-8, provisions relating to street bail


and assistance, eg, preparing a bail application taking full account of all relevant factors and likely objections; Bail Act 1976

5 Understand the various stages of

criminal proceedings 5.1 Explain the purpose and process of

interview under caution 5.2 Explain identification procedures 5.3 Explain, in either way cases, the plea

before venue, mode of trial and committal procedures

5.1 PACE Code C; principal provisions of PACE Codes E and F; Criminal Justice and Public Order Act 1994 ss 34 -38; consequences of selective silence, total silence and providing written comments.

5.2 PACE Code D; the VIPER system; relevant case

law, eg, Turnbull (1977); alternatives to a VIPER or parade identification

5.3 Magistrates Courts Act 1980 ss 5-8, 17-25;

Criminal Procedure Rules 2010 Part 10; Mode of Trial Guidelines (scheduled to Criminal


5.4 Explain the purpose and process of the

defence statement and disclosure 5.5 Explain the relevant rules of evidence 5.6 Explain the evidential issues

associated with the availability of defences

5.7 Analyse a given legal situation relating

to the stages of criminal proceedings in order to offer practical advice and assistance

Procedure Rules) 5.4 Criminal Procedure and Investigations Act Part I; CPR Parts 21 and 22 5.5 Evidence of character of the accused or others;

alibi; hearsay; burden and standard of proof; unfavourable and hostile witnesses; exclusion of evidence; expert evidence: Criminal Justice Act 2003 Part 11; Youth Justice and Criminal Evidence Act 1999 Part 2; PACE ss 76-78 and 84; Criminal Justice Act 1967 ss 9-11; Criminal Justice Act 1988 s 30; Criminal Procedure Rules Part 27 – 36; nature of burdens of proof and evidential burdens; impact of ECHR

5.6 Awareness of the features of the principal

defences, eg, self-defence, necessity, duress per minas, duress of circumstances; automatism; partial defences to murder under Homicide Act 1957 s 3 -4; insanity; Criminal Law Act 1967 s 3; extent to which there is a legal or evidential burden on the defence


and assistance, eg, drafting a defence statement, instructions/brief to counsel or a formal admission under s 10 Criminal Justice Act 1967

6 Understand sentencing and

ancillary orders in criminal proceedings

6.1 Explain the principles and practice of sentencing

6.1 The principles of sentencing; the sentences available and the criteria for their imposition: Powers of Criminal Courts (Sentencing) Act 2000; Criminal Justice Act 2003 Part 12; Crime and Disorder Act 1998 Part IV Chapter 1; Sentencing Guidelines Council Guidelines; Magistrates Courts’ Sentencing Guidelines;



sentencing and ancillary orders in order to offer practical legal advice and assistance

guideline sentencing cases; Criminal Justice Rules Parts 42-55; offences to be taken into consideration; pre-sentence and other report


and assistance, eg, advising on sentence in relation to defined circumstances and drafting a plea in mitigation

7 Understand the principles of legal

professional ethics as they apply to criminal matters

7.1 Explain the duties of the advocate and adviser


professional ethics as they apply to criminal matters in order to offer practical advice and assistance

7.1 Confidentiality; duty not to mislead the court; duty to disclose adverse matters of law; when the adviser must withdraw; representing an absent client; relationship with court, prosecution and others


and assistance

8 Understand the special rules relating to juveniles

8.1 Explain the jurisdiction of the youth court and the circumstances in which a juvenile may be tried in an adult court

8.2 Explain the rules operating for the

protection of juveniles 8.3 Explain sentencing in relation to a

juvenile 8.4 Analyse a given legal situation relating

to the special rules for juveniles in order to offer practical advice and

8.1 Magistrates Courts Act 1980 ss 24, 29; Children & Young Persons Act 1933. Grave crimes and dangerous offenders: ss 90-92 Powers of criminal Courts (Sentencing) Act and Part 12 Chap 5 CJA 2003.

8.2 Youth Justice and Criminal Justice Act 1999

Part 2 Chapters 4 and 5 8.3 Youth Justice And Criminal Evidence Act 1999

Part 1; Powers of Criminal Courts (Sentencing) Act 2000 (relevant provisions); Crime and Disorder Act 1998 ss 37-42


and assistance, eg, advising on sentence in relation to defined circumstances for a juvenile


assistance


of Criminal Litigation Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 31 Criminal Law Advice and Casework


Na


Na


Na






Unit 19 Title:

The Practice of Employment Law

Level:

6

Credit Value:

15




1 Understand the purpose of different types of employment contract clause

1.1 Identify the purpose of a variety of express and implied contractual terms

1.2 Explain the main express and implied

post-termination restraints 1.3 Analyse the enforceability of these post-

termination restraint clauses

1.1 An understanding of the contents of employment contracts with a focus on terms operating during the employment relationship; an outline of the contents of sections 1-7 Employment Rights Act (ERA)1996; consideration of additional terms such as gross misconduct clauses, payments in lieu of notice, protection of intellectual property including confidential information and trade secrets, garden leave, etc; contrasting these with the idea of post termination restraints

1.2 The four types of restrictive covenants:

definitions and purpose of non–competition, non-solicitation, non-poaching and non–dealing; the concept of implied terms with a particular focus on the implied term of confidentiality

1.3 Enforceability of restrictive covenants); criteria

which must be satisfied to achieve enforceability, including legitimate interests to protect and being no wider than necessary to protect the employer’s business interest;


1.4 Analyse the relationship between post-

termination restraint clauses and any garden leave clause


contractual clauses in order to offer practical advice and assistance

reasonableness in terms of time, area and nature of information protected

1.4 Definition of garden leave clauses; importance

of an express clause, and their purpose and effect, if any, on restrictive covenants


and assistance, eg, drafting amendments to a basic restrictive covenant to rectify deficiencies in its enforceability ( in the case of non-solicitation clauses, limitation to specific customers within a specified period prior to the employee’s departure; drafting must bear in mind the operation of the blue pencil test); briefly identifying a wrongful dismissal to the extent necessary to advise upon its effect on a restrictive covenant (ie, basic definition of a wrongful dismissal and concept of repudiatory breach and its effect on restrictive covenants; considering the possibility that confidentiality covenants may survive a repudiatory breach)

2 Understand the role of policy and procedure within effective employment dispute resolution

2.1 Describe core policies and procedures within the organisation

2.2 Explain the reasons for core policies and

procedures

2.1 Identifying core policies and describe their function: discipline, dismissal and grievance, internet and communications use, equal opportunities (including anti harassment and bullying), whistle blowing, sickness absence, health and safety, family friendly policies and flexible working

2.2 The importance of preventing claims arising by

the adoption, implementation and review of a comprehensive up to date company handbook; contrast between contractual and non- contractual provisions


2.3 Explain the importance of detailed disciplinary and grievance policies and procedures

2.4 Explain the effective use of detailed

disciplinary and grievance policies and procedures


employment dispute resolution in order to offer practical advice and assistance

2.3 The difference between disciplinary and grievance cases: definitions under s.13 Employment Relations Act 1999; the importance of detailed disciplinary and grievance policies and procedures: eg, promoting orderly employment relations and fairness and consistency in the treatment of employees; communicating to employees what behaviour employers expect from them; dealing with situations where employees break disciplinary rules or don’t meet their employer’s expectations etc

2.4 Reference to ACAS guidance on core

provisions of policy, such as, eg, the disciplinary policy should be in writing; it must be non-discriminatory; deal with matters promptly and confidentially; tell employees what disciplinary action might be taken; the levels of management with the authority to take disciplinary action etc


and assistance

3 Understand the effective management of staff dismissal

3.1 Identify the qualifying requirements for an unfair dismissal claim and the six potentially fair reasons to dismiss

3.2 Explain when a dismissal will be fair in all

the circumstances taking into account the procedure followed

3.1 Application of the preliminary qualifying requirements and the six potentially fair reasons under s98 ERA 1996 (capability; conduct; redundancy; retirement; statutory illegality; some other substantial reason); recognition and application of automatically unfair reasons for dismissal

3.2 Relationship between potentially fair reasons

and fairness in all the circumstances, including the band of reasonable responses of the employer derived from HSBC Bank v Madden


3.3 Explain the provisions of the ACAS Code

of Practice and statute on disciplinary and grievance matters

3.4 Explain the consequences of failure to

handle dispute resolution effectively, including the effects on an unfair dismissal claim

(2001); to include the role of procedure in considering unfair dismissal claims

3.3 ACAS Code can be taken into account by

employment tribunals in deciding whether employers have acted properly in connection with unfair dismissal claims; contents of the revised code; the Code is the key guidance governing management of disciplinary and grievance situations; it lays out what needs to be followed before contemplating a dismissal; for eg: use of informal procedures first, where some form of formal action is needed what action is reasonable will depend on all the circumstances, employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace, an employee should be informed of the basis of the problem and have an opportunity to put their case, an employee has the right to be accompanied at any disciplinary or grievance meeting including the statutory provisions governing the right to be accompanied (Employment Relations Act 1999 s10(1)(b)) etc; consequences of failure to allow accompaniment: an employee should be allowed to appeal against any formal decision made; good practice to keep written records during disciplinary and grievance cases

3.4 Provisions of the Employment Act 2008

concerning dispute resolution; discretionary powers on tribunals to amend awards if parties have failed to comply with the ACAS Code including increase or reduction of compensation by 25%; conciliation by ACAS ; tribunals' powers by which they may reach a


3.5 Identify the remedies available to an

employee when the employer implements an unfair dismissal


effective management of staff removal in order to offer practical advice and assistance

determination without a hearing; consequences on an unfair dismissal claim if no fair procedure followed, including acting outside the band of reasonable responses and following poor procedure

3.5 The function of the Employment Tribunal;

compensation (consideration to include calculation of basic award and advice on compensatory elements including the potential 25% increase or decrease to the awards and the role of mitigation); awareness of further remedies of reinstatement and reengagement


and assistance; eg, simple compensation calculations

4 Understand how to effectively manage a transfer of a business or part of a business from one organisation to another

4.1 Explain what a Transfer of an Undertaking is and why there is a need for employee protection when such a transfer takes place

4.2 Explain when TUPE applies to a

business situation

4.1 Definition of transfer of an undertaking; the overall nature of the protection afforded by the provisions of Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE 2006’); the common law position before statutory intervention

4.2 The potential range of TUPE transfer

situations including definition of a relevant transfer (TUPE 2006 regulation 3) and application to: business transfers (including whether there is an identifiable economic entity), changes of service provision including outsourcing, first generation contracting out, second generation contracting out, in-sourcing; the effect of the TUPE regulations, understanding that there can be a transfer of an undertaking for the purposes of TUPE 2006


4.3 Explain the legal consequences following

a relevant transfer 4.4 Define an economic, technical or

even though: there is no contractual relationship between the alleged transferor and the alleged transferee, there is no transfer of physical assets, only part of an undertaking is transferred; guidance taken from case law: for example, principles from Spijkers Gebroeders v Benedik Abbatoir CV and Alfred Benedik en Zonen BV, ECJ (1986) ECR 1119 (Spijkers case), Cheesman v Brewer Contracts EAT [2001] IRLR 144, Fairhurst Ward Abbotts Ltd v Botes Building Ltd and others CA 2004 EWCA Civ 83, TGWU v Swissport (UK) Ltd (in administration) and Aer Lingus Ltd EAT 2007 ICR 1593

4.3 Legal consequences including: dismissals:

effect of relevant transfer on contracts of employment and preservation of continuity of employment (TUPE 2006 regulation 4); preservation of terms and conditions of those employees who are transferred (TUPE 2006 regulation 4); limited opportunity for the transferee or transferor to vary the terms and conditions of employment (TUPE 2006 regulation 4, including regulation 9 - insolvency); protection from dismissal before or after a relevant transfer (TUPE 2006 regulation 7); notification of employee liability information (TUPE 2006 regulation 11); remedy for failure to notify employee liability information (TUPE 2006 regulation 12); information and consultation requirements: duty to inform and consult representatives (TUPE 2006 regulation 13 and 15)

4.4 Definition: economic, technical or


organisational reason and describe its effect in a transfer situation


effective management of a transfer of business in order to offer practical advice and assistance

organisational (ETO) reason and the importance of the fact the ETO reason must entail changes in the workforce; the ETO reason must relate to the transferor's future conduct of the business (eg, Hynd v Armstrong and others (2007) and Whitehouse v Blatchford and Sons Ltd 2000 ICR 542, CA); effect on protection from dismissal if an ETO reason applies (regulation 7); effect of an ETO on attempts to vary terms, ie, the variation will be void if the sole or principal reason for the variation is the transfer itself; or a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce (Regulation 4 (4))


and assistance

5 Understand the statutory minimum provisions relating to family friendly provisions

5.1 Describe the right to time off for ante natal care

5.2 Explain the key features of maternity and

paternity leave

5.1 Ante natal care: outline right to time off for ante natal care, when an employer can refuse and remedies for unreasonable refusal; s55 Employment Rights Act 1996

5.2 Maternity Leave: outline compulsory maternity

leave ( ERA 1996 s72 and Maternity and Parental Leave Regulations 1999 regulation 8); the qualifying criteria for ordinary and additional maternity leave; notice to be given; the extent of ordinary leave, ie, 26 weeks (Maternity and Parental Leave Regulations 1999 regulation 7); when maternity leave commences; notifying an employer re the end date of maternity leave; the extent of additional maternity leave; contract of employment


5.3 Explain when statutory maternity and

paternity pay will be paid and the current rates

5.4 Explain the remedies available to an

continues throughout ordinary and additional maternity leave - differences between rights during ordinary and additional leave; the right to the continuation of rights and benefits of the contract (remuneration excepted) and the right to return to work; Maternity and Paternity Leave (Amendment) Regs 2002; Employment Act 2002 and Part VIII ERA 1996; s.18 Equality Act 2010, pregnancy and maternity discrimination: work cases and the insertion of a maternity equality clause under s.73

Paternity Leave: statutory paternity leave (Employment Act 2002 s1, ERA 1996 s80A Paternity and Adoption Leave Regulations 2002); amount; when taken; who can take paternity leave; entitlement (must be an employee but can be a part-time employee); notice to be given; qualification (the employee must have been in continuous employment with their employer for 26 weeks ending with the week immediately preceding the 14th week before the expected week of the child's birth); entitlement while absent on statutory paternity leave to all the benefits and obligations, other than entitlement to wages or salary, to which he would be entitled if at work; entitlement to return to job at end of paternity leave

5.3 Maternity and Paternity Pay: qualifying criteria

for Maternity and Paternity leave, the level of remuneration and both rates of Statutory Maternity and Paternity Pay; ss164-171 Social Security Contributions and Benefits Act 1992

5.4 Remedies available to an employee when the


employee when an employer fails to honour maternity or paternity rights

5.5 Explain the current right to request

flexible working and proposed extensions to that right

employer fails to honour maternity or paternity rights: dismissal of a female employee will be automatically unfair dismissal under section 18 Equality Act 2010, parental leave, or time off for helping dependants under ERA 1996 s.57A, failure to return to work at the end of maternity leave if the employer had not given her the notice of the end date of her maternity leave, selection for redundancy on any of the grounds above is also automatically unfair dismissal; dismissal of a male employee will be automatically unfair dismissal if he is dismissed because he took or sought to take paternity leave (or is selected for redundancy for that reason) (see Paternity and Adoption Leave Regulations 2002 regulation 29); other remedies include: the right not to be subjected to a detriment (ERA 1996 s47C and s57A); a female employee who has suffered a detriment in contravention of the rules noted above can make a complaint to an employment tribunal (ERA 1996 s48); compensation (ERA 1996 s.49); the right not to be subjected to a detriment for male employees: ERA 1996 s47C and Paternity and Adoption Leave Regulations 2002 SI regulation 28

5.5 The right to request flexible working:

awareness of rationale (that it is just a right to request and not a right) and qualifying criteria; qualifying requirements; nature of the flexibility (eg, hours, times, place of work); circumstances in which an employer can legitimately refuse; application procedure; consequences of an employers’ refusal; remedies if unfairly refused; right to appeal;


5.6 Explain the right to parental leave and

time off for dependants 5.7 Analyse a given legal situation on family

s80F ERA 1996 5.6 Parental leave; qualifying criteria; right to up to

4 weeks unpaid parental leave per year while the child is under age 5; overall maximum of 13 weeks leave in respect of each child; parental leave taken in blocks of one week; employee notice to take leave; employers’ right to require the employee to postpone leave; right to apply to an employment tribunal if the employer attempts to prevent him/her taking parental leave; both men and women are entitled to it in addition to paternity and maternity leave.

Time off for dependants: all employees are entitled to a reasonable amount of unpaid time off work to deal with emergencies involving a dependant (Employment Rights Act 1996 s57A); right not to be dismissed or victimised for doing so; if a person is dismissed, including being selected for redundancy, for exercising or seeking to exercise this right, the dismissal will be automatically unfair (ERA 1996 s.99); time off can be taken in order to take action to provide assistance when a dependant falls ill, gives birth, is injured or dies; definition of dependant; an employee who is unreasonably refused permission to take time off can take action in the employment tribunal for compensation; if the employee is dismissed because he or she took, or sought to take, time off under it will be automatically unfair dismissal



friendly rights in order to offer practical advice and assistance

and assistance

6 Understand retirement procedures and the relationship with age discrimination

6.1 Explain the statutory provisions governing retirement

6.2 Explain when an employee may claim

age discrimination 6.3 Analyse a given legal situation on

retirement procedures in order to offer practical advice and assistance

6.1 Retirement procedure: default retirement age of 65, or their normal retirement age if later; if the normal retirement age is below 65, it must be objectively justified; employers must give employees advance notice of retirement; and tell employees that they can request to work for longer; employers who want to terminate the employee’s employment before the normal or the default retirement age must have another fair reason for dismissal and follow the normal dismissal procedures; retirement dismissal may be unfair if there was not at least six months’ written (and no more than 12 months notice) of the intended retirement date; must also have been notice of the right to request to continue working; procedure for meeting with the employee to discuss the request; right to appeal if request not to be retired is refused; sections 98ZA -98ZFof the ERA 1996; Equality Act 2010

6.2 Direct and indirect discrimination; harassment

and victimisation; Equality Act 2010 including defences, evidential issues, burden of proof remedies and time limits


advice and assistance

7 Understand the practical principles governing the negotiation of, preparation of and advice upon binding compromise agreements

7.1 Describe the purpose and effect of compromise agreements

7.1 Understanding of the importance of compromise agreements and the ACAS form of settlement agreement: COT3 (s18 of the Employment Tribunals Act 1996) as a way of resolving employment disputes; an understanding of without prejudice negotiation


7.2 Analyse purported compromise

agreements to assess full compliance with the statutory requirements


compromise agreements in order to offer practical advice and assistance

and privilege 7.2 Application of s203 of the ERA 1996

concerning the need for an independent legal adviser, the requisite insurance, and meeting all the requirements concerning compromise agreements: eg, the agreement must be in writing, the agreement must relate to the particular proceedings, the employee must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an Employment Tribunal, the requirement that the adviser must be a qualified lawyer: Employment Rights (Dispute Resolution) Act 1998 s9; the adviser must be covered by a professional indemnity insurance in respect of the advice given; the adviser must be identified in the agreement; the agreement must state that the above conditions are satisfied; s.144 Equality Act 2010 retains the ability to contract out of terms under a qualifying compromise contract under s.147.


and assistance; eg, drafting of sections of compromise agreements to ensure compliance with s203 of the ERA 1996

8 Understand the key stages of an employment claim in the tribunal or the civil courts

8.1 Explain the jurisdiction of employment tribunal and civil courts for a number of key claims

8.1 The main provisions of the Extension of Jurisdiction (England and Wales) Order 1994 and s.120 Equality Act 2010; most employment cases will take place within the tribunal system usually three month period under s.123, note that if it relates to a breach of an equality clause or rule the period is six months; ordinary civil courts have jurisdiction


8.2 Explain the main time limits for lodging

claims in the tribunal and the civil courts and the rules governing extensions of those time limits in the tribunal

8.3 Explain the purpose of the ET1 and ET3

forms 8.4 Explain the processes and orders

available in the tribunal and the appropriate use of interim procedures

over a smaller number of employment matters including: breach of contract claims including wrongful dismissal, claims concerned with breaches of restrictive covenants, intellectual property claims, such as copyright or patent matters, personal injury claims for example based on breach of the implied contractual term that the employer must take care of the employee’s health and safety; note: the employment tribunal also has jurisdiction to deal with contractual claims such as wrongful dismissal claims up to a £25,000 limit;

8.2 The time limits for wrongful dismissal in

different jurisdictions, unfair dismissal and a selection of other claims including claims for statutory redundancy payments; an understanding of the circumstances in which time may be extended (including the fixed three month extension until repealed) and the extensions available under the not reasonably practicable and just and equitable tests

8.3 Understanding the purpose of the forms; the

main elements of the forms 8.4 Key stages of a tribunal claim including some

core aspects of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 as amended; for example, pre-hearing reviews, default judgments, striking out, witness orders and requests for documents; preparation of witness statements, and actual processes in the tribunal; rights of audience: legal executives have rights of audience before an employment tribunal (Institute of Legal Executives Order 1998, SI


8.5 Identify jurisdiction and time limits for

appeals and reviews of a tribunal decision

8.6 Analyse a given legal situation with

respect to an employment claim in order to offer practical advice and assistance

1998/1077); evidential issues: employment tribunals should not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts so hearsay evidence is admissible without specific notice requirements at the discretion of the tribunal: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Rule 14(2)

8.5 Appeal lies with the Employment Appeal

Tribunal (EAT) on any question of law; no right of appeal from an employment tribunal's decisions on facts; right to request review of an employment tribunal decision


and assistance, eg, completing a simple claim or response in the employment tribunal; completion of the form ET1 or ET3 based on an unfair dismissal scenario



understanding of the Practice of Employment Law


This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 45 First Line Employment Legal Advice and Unit 46 Employment Legal Advice and Casework


N/A


N/A


N/A






Unit 20 Title:

The Practice of Family Law

Level:

6

Credit Value:

15




1 Understand how to terminate a marriage and civil partnership

1.1 Explain divorce and dissolution as methods of terminating marriage and civil partnership respectively

1.2 Explain the process and effects of

undefended divorce and dissolution of a civil partnership

1.1 Termination of marriage under the Matrimonial Causes Act 1973 as amended (MCA 1973); dissolution of civil partnership under the Civil Partnership Act 2004 (CPA 2004) in the English Courts; including analysis of the jurisdiction of the English Courts to deal with the matter by reference to the definition of habitual residence and domicile in the appropriate Council Regulation; relevant case law, eg, R v Barnett LB, exp Shah (1983) 2 AC 309, Mark v Mark [2004] 1 FLR 1069, Ikimi v Ikimi (2001) EWCA Civ 873 and M v M [2007] 2 FLR 1018

1.2 A description of the special procedure in

undefended divorce and the procedure for dissolution of civil partnership; identification of the required documentation; issues arising; consideration of the effect on inheritance; ownership of property, pensions entitlement etc; on obtaining a final decree


1.3 Explain the costs incurred in these proceedings including consideration of whether the costs will be met by private means or public funding

1.4 Explain best practice in this area 1.5 Analyse a given legal situation on the

termination of marriage and civil partnership in order to offer practical advice and assistance to a petitioner or respondent

1.3 An explanation of the approximate costs and disbursements involved in the process from instructions received to final decree; compliance with the requirements of the Solicitors’ Code of Conduct 2007 (“the Code”) with regard to costs, eg, fixed fee or giving clients the best estimate available and keeping the cost estimate under review; the levels of public funding currently in force and the qualifying criteria, eg, the means and merits test; the effects of the statutory charge and an appreciation of the duties owed to the Legal Services Commission (“LSC”) in relation to the provision of legal services to publicly funded clients (in outline only)

1.4 An explanation of the purpose of the Family

Law Protocol (the Protocol); its key elements: namely, agreeing to adopt a constructive and conciliatory approach in the resolution of disputes arising from the ending of a relationship; best practice in this area is in Part 2 and includes giving notice before issue of proceedings; prior to issue of the petition trying to agree the contents in order to save acrimony; not naming a co-respondent in a petition based on adultery


and assistance, eg, issues arising from accepting instructions to act such as identity checks, conflicts of interest, confidentiality and client care in compliance with the Code; drafting a competent petition in undefended divorce or for the dissolution of a civil partnership (ie, drafting a petition in its entirety from information given in a fictitious scenario,


including particulars of the fact used; drafting the petition to a competent standard, which would be accepted by a divorce county court; commenting on completed documents, which may be either incorrectly or badly drafted)

2 Understand the financial

consequences of terminating a marriage or dissolving a civil partnership

2.1 Explain the most commonly used forms of dispute resolution as a means of resolving a financial dispute arising on the termination of a marriage or the dissolution of a civil partnership

2.2 Describe the process of mediation or

another form of ADR as may be appropriate

2.1 An explanation of the different types of dispute resolution: namely, agreement reached between the parties, negotiation between solicitors, mediation or other forms of alternative dispute resolution (ADR) such as collaborative law or court-based conciliation (where available) and adjudication by the court to resolve financial disputes; consideration of the benefits and in particular the costs, benefits and or limitations of mediation and other ADR methods; an appreciation of the need to keep the appropriateness of the process of ADR under review

2.2 The process involves the parties to the

dispute, whether or not legally represented or whether or not legal proceedings have commenced, agreeing to appoint a neutral third party (the mediator) who is impartial and has no authority to make any decision with regard to the subject matter of the dispute (which may relate to separation, divorce, children, property, financial issues or a combination thereof); the mediator helps them to reach their own informed decisions by negotiation without adjudication; an understanding of the role of the advisor to a client engaged in the ADR process and adopting best practice in relation to ADR as set out in the Protocol


2.3 Explain the costs incurred in these proceedings including consideration of whether the costs will be met by private means or public funding

2.4 Summarise the ancillary relief procedure 2.5 Explain the factors the court will take into

account in making an order for ancillary relief

2.3 An explanation of the approximate costs and disbursements involved in ancillary relief proceedings; compliance with the requirements of the Code with regard to costs and generally being aware of possible conflicts of interest, eg, Money Laundering Regulations 2007 and the effect of the case of Bowman v Fels [2005] EWCA Civ 226 and the duty to report; the effects of the statutory charge and the discretion to postpone; an appreciation of the duties owed to the LSC in relation to the provision of legal services to publicly funded clients, eg, the duty to report to the LSC the client’s unreasonable refusal of an offer to settle

2.4 MCA 1973/CPA 2004; applications and typical

directions/timelines, the requirement for mediation, the duty of full and frank disclosure, costs, funding and the effect of the statutory charge; the procedure from issue to final hearing

2.5 The application of section 25 MCA 1973;

analysing the strengths and weaknesses of a client’s case and predicting a possible outcome; orders available and their use: maintenance pending suit, lump sum, periodical payments, clean break, transfer, settlement, sale of family home, pensions, including consideration of Mesher Martin and Harvey orders; identifying and explaining a package of orders to comprise a resolution of the financial claims; justifying each term; relevant case law, eg, White v White [2000] 2 FLR 927; Miller v Miller; McFarlane v McFarlane (joined cases) [2006] UKHL 24 and


2.6 Explain the consequences of the

breakdown of a marriage or civil partnership in relation to the ownership and/or occupation of the family home

2.7 Explain the appropriate action to be

taken in order to prevent disposals or set aside disposals of assets made with a view to frustrate financial claims

2.8 Explain enforcement provisions in

relation to financial orders 2.9 Explain best practice in this area

Charman v Charman [2007] EWCA Civ 503 and its implications

2.6 An analysis of how the family home is treated

by the courts in situations of marriage/civil partnership breakdown; an explanation of home rights under the Family Law Act (FLA) 1996 section 30; the acquisition and registering of home rights; severance of joint tenancy and application of other relevant legislation, eg, Section 24 MCA 1973 or Schedule 7 FLA 1996 in relation to the transfer of tenancies

2.7 The role of injunctive action under section 37

MCA 1973 to prevent a disposal (section 37 (2) (a)) or set aside a disposition already made with a view to frustrate a claim being made in relation to it for financial provision (section 37 (2) (b)); analysis of a “reviewable disposition” as set out in section 37 (2) (c) and the requisite intention required to satisfy the court in order to obtain an injunction

2.8 Methods available to enforce an order, eg,

attachment of earnings; warrant of execution; charging order; collection and enforcement by the Child Support Agency; enforcement in the family proceedings court; circumstances of their use and analysis of their effectiveness

2.9 Main sections of the Protocol; examples of

best practice include pre-application disclosure and negotiation so that parties are in a position to settle the case fairly and early in the process without litigation; the Protocol encourages the narrowing of issues in dispute


2.10 Explain the rules as to admissibility of

evidence and the duty to provide full and frank disclosure in applications made to court

2.11 Explain, in outline only, the impact of

welfare benefits and the duty of a local authority to provide housing

2.12 Explain the overriding objective in

relation to the proportionality of costs, including tactics for making offers to settle

to aid the effective and timely resolution of the dispute

2.10 In outline only, the relaxation of rules of

evidence in relation to applications made under the MCA 1974 or the CPA 2004; the admissibility of offers to settle during the procedure and the general duty of disclosure; relevant case law, eg, Livesey (formerly Jenkins) v Jenkins [1985] AC 424; P v P (Financial Relief: Non-Disclosure) [1994] 2 FLR 381; Kimber v Brookman Solicitors [2004] 2 FLR 221

2.11 Child benefit; Income Support and the

“passport benefits” automatically gained, eg, free school meals; Jobseeker’s Allowance; working tax credit and child tax credit; housing benefit; council tax benefit; duty of a local authority to provide accommodation as set out in Housing Act 1996 and the Homelessness Act 2002, eg, where the former matrimonial home is sold either because of large mortgage arrears or because on relationship breakdown neither party can afford it alone

2.12 An explanation of the principle of

proportionality, eg, that it is unacceptable for the costs of any case to be disproportionate to the value of the subject matter of the dispute, eg, valuation of family businesses and joint instruction of experts; the pre-application protocol annexed to the Practice Direction (Ancillary Relief Procedure) [2000] 1 FLR 997; eg, pre-application disclosure and negotiation with a view to try to settle fairly before proceedings; tactics: eg, open offers to settle;



financial consequences of terminating a marriage and dissolving a civil partnership in order to offer practical advice and assistance

costs orders, eg, litigation conduct being taken into account in the discretion to make costs orders against one party


and assistance, eg, re mediation and ancillary relief, where agreement is reached or otherwise, the drafting of an agreement to include heads of agreement and consent orders; drafting documentation required in relation to ancillary relief procedure (ie, explaining and drafting documentation such as a Statement of Issues, specific parts of Form E etc; commenting on completed documents, which may be either incorrectly or badly drafted)

3 Understand the legislation,

provisions and remedies available in cases of domestic violence and molestation

3.1 Explain the alternative options to court proceedings and their appropriateness

3.2 Explain the impact of legislation

3.1 The role of the police as the first point of contact where there has been domestic violence; the necessity to have considered alternative methods of dealing with domestic violence, eg, writing a warning letter to the respondent (especially in the context of publicly funded clients), police prosecution under the criminal law; support for victims, eg, refuges and places of safety and regional differences in support

3.2 Part IV of the FLA 1996 and the Protection

from Harassment Act 1997; appropriate use of non-molestation under section 42 FLA 1996 and occupation orders under sections 33 and 35-8 FLA 1996 provisions; associated persons; appropriate applications either on notice/without notice; factors governing their use; explaining and applying the balance of harm test and the statutory factors; assessing


3.3 Summarise the procedure used to apply

for these orders, including the procedure required for a with or without notice (urgent) application to the court and service of the order

3.4 Explain, in outline only, the rules as to

admissibility and how the weight of evidence in proceedings of this nature is evaluated

3.5 Summarise the methods of enforcement

of both non-molestation and occupation orders including an explanation of the use of undertakings given to the court

the strengths and weaknesses, including the weight of evidence; predicting a possible outcome; additional provisions under section 40 FLA 1996 concerning payment of outgoings relating to the home; duty of a local authority to provide accommodation as set out in Housing Act 1996 and the Homelessness Act 2002

3.3 Deciding when applications are appropriate

with or without notice; applying for an order: eg, in the case of a without notice (urgent) application deciding with the client whether they may be in danger if the proceedings are issued on notice; on a decision to issue proceedings without notice then telephoning the court to make an appointment before the judge further arranging for the personal service of the order on the respondent

3.4 The rules of evidence in relation to oral

applications; evaluating the strengths and weaknesses of evidence, including the weight of evidence; predicting a possible outcome

3.5 The courts’ and the police powers of

enforcement, under FLA 1996 eg, the criminal offence of breach of a non-molestation order, the power of arrest on occupation orders and the possibility of undertakings

3.6 Relevant sections of the Protocol; examples of

best practice include: where domestic violence is an issue and the parties have children care should be taken to ensure the client’s safety is not compromised by meetings arranged by third parties, eg, CAFCASS officers for


3.6 Describe best practice in this area 3.7 Analyse a given legal situation on the

legislation, provisions and remedies available in cases of domestic violence and molestation in order to offer practical advice and assistance to both an applicant and a respondent in these proceedings

negotiations in relation to children 3.7 Analysis of a complex scenario to offer advice

and assistance, eg, drafting documentation in relation to the application for an order, including a FL401 and the statement in support of the application; be familiar with the contents of orders and requirements of a statement in support (ie, evaluating the documentation so as to be able to advise on the strengths and weaknesses, including the weight of evidence and predicting a possible outcome)

4 Understand the Children Act (CA)

1989 in relation to private law 4.1 Explain the overall intent and purpose of

section 1 of the CA 1989 4.2 Explain the concept of parental

responsibility (PR) 4.3 Explain the availability and effect of

orders under section 8 CA 1989

4.1 The welfare principle: section 1 (1), the no delay principle: section 1 (2) and the no order principle: section 1 (5) of the CA 1989; applying the legislation

4.2 Identification of how PR arises automatically or

how it can be acquired under both the CA 1989 and how it may be lost; the factors and considerations under section 4 A of the CA 1989 which a court will take into account and apply to private proceedings; analysis and interpretation of legislation and case law relevant to PR, eg, Re G (PR: Education) (1994); Re C (Change of Surname) (1998); Re H (PR) (1998); Dawson v Wearmouth (1999) and Re P (Terminating PR) (1995); evaluating the strengths and weaknesses in situations and predicting a possible outcome

4.3 Orders available (contact; residence; specific

issue and prohibited steps orders): who may apply (including when leave of the court is required); interim and without notice


4.4 Explain, in outline only, removal from the

jurisdiction, child abduction and change of name with regard to the relevant legislation and the current practice directions

4.5 Identify when a family assistance order

may be made 4.6 Summarise the procedure for entering

into a PR Agreement, obtaining a PR order or applying for a section 8 order

applications; the factors/considerations under section 1 (3) of the CA 1989 and their application to private proceedings; analysis and interpretation of relevant case law, eg, Re L (Domestic Violence & Contact) (2000); Re A (section 8 Order: Grandparent Application) (1995); Re M (Intractable Contact Dispute: Interim Care Order)(2003), Re D (Shared residence) [2001] 1 FLR 495 and Re B (A Child) [2009]; evaluating the strengths and weaknesses in situations and predicting a possible outcome in relation to section 8 of the CA 1989.

4.4 The limitations imposed by section 13 of the

CA 1989 in relation to changes of surname and travelling abroad, eg, holidays or emigration; application of the legislation, eg, applications to be made or transferred to the High Court in cases of child abduction and relevant case law in relation to child abduction and the Hague Convention, eg, Payne v Payne (Leave to Remove) (2001) and Re C (Change of name) [1998] 1 FLR 549

4.5 A summary of the provisions under section 16

of the CA 1989 4.6 An explanation of the procedures to be

followed in entering PR Agreements, eg, the requirement for registration; or obtaining a PR order under section 4 of the CA 1989; section 8 order procedures; the role of CAFCASS and the nature and effect of related documentation such as expert reports or medical evidence; an awareness of regional variations in procedures; the revised Private Law


4.7 Explain financial provision for children on

the breakdown of a relationship 4.8 Describe best practice in this area 4.9 Explain, in outline only, the rules as to

admissibility of evidence and disclosure in applications made to court under the CA 1989


Children Act 1989 in order to offer practical advice and assistance to both an applicant or a respondent

Programme 4.7 Financial provision for children available

through Child Support legislation; an awareness of the courts’ limited jurisdiction to deal with financial provision under the MCA 1973 or CPA 2004 (if appropriate) and the limited scope of Section 1 Schedule 15 of CA 1989

4.8 Relevant sections of the Protocol; examples of

best practice include the requirement to avoid draft statements using emotive and or inflammatory language or expressing subjective opinion; the discouragement of statements or letters written by children

4.9 The relaxation of rules of evidence and the

requirement for leave of the court in relation to CA 1989 applications


and assistance, eg, drafting the appropriate documentation to be used in an application for a section 8 order; drafting a PR Agreement

5 Understand the financial consequences of relationship breakdown for the unmarried family/couple

5.1 Compare and contrast the financial consequences of ending a marriage, a civil partnership and a cohabitation

5.1 The differing financial consequences for married couples/civil partnerships and unmarried couples, eg, unmarried couples have very limited rights against the estate of a former partner in the event of death; wills; Inheritance (Provisions and Family Dependents) Act 1975; cohabitation/separation agreements, their


5.2 Explain the consequences of the

breakdown of a relationship for the unmarried family/couple in relation to the ownership and or occupation of the family home

5.3 Explain the impact of express and

implied trusts in relation to the family home for the unmarried family/couple

5.4 Summarise proposals for reform and

identify areas of concern 5.5 Analyse a given legal situation on the

financial consequences of relationship breakdown for the unmarried family/couple in order to offer practical advice and assistance

contents and the enforceability of these agreements in outline only

5.2 Relevant statutes: Law of Property Act 1925,

and legal and beneficial interests in land, eg, the existence of a declaration of trust setting out entitlement; Trusts of Land and Appointment of Trustees Act 1996, in particular sections 14 and 15, which relate to the power of sale; the strengths and weaknesses, including the weight of evidence; predicting a possible outcome

5.3 Identification of express and implied trusts; the

impact of relevant case law, eg, Stack v Dowden (2007) and Lloyds Bank plc v Rosset (1990) 2 WLR 867

5.4 A summary of the proposals for reform of the

law set out in the Law Commission report Cohabitation: The Financial Consequences of Relationship Breakdown” in relation to the ownership and occupation of the family home by the unmarried family/couple


and assistance



of the Practice of Family Law Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 63 First Line Family Law Advice and Unit 64 Family Law Advice and Casework


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Unit 21 Title:

Probate Practice

Level:

6

Credit Value:

15




1 Understand the importance of risk management in probate practice

1.1 Identify the client and relevant other parties to whom a duty of care is owed

1.2 Explain the nature and extent of the

duty of care 1.3 Identify circumstances in which risk

management is a particular concern 1.4 Analyse a given legal situation on risk

management in probate practice in order to offer practical advice and assistance

1.1 Client - will making, the testator; estates, personal representatives (PRs): duty of care – will making and estates, client and beneficiaries

1.2 Client – in contract and tort; beneficiaries –

statute and relevant case law: eg, Ross v Caunters (1980); Clarke v Bruce Lance & Co (1988); White v Jones (1995)

1.3 Elderly/very ill clients; Solicitors’ Code of

Conduct 2007 (SCC), eg, “third party” instructions, Rule 2.01 (c) and (d); potential conflict of interest (SCC Rule 3); confidentiality (SCC Rule 4): advice to PRs and/or beneficiaries on investment


and assistance, eg, drafting paragraphs for letters to clients and internal memoranda

2 Understand what will happen to a client’s property on death if it is not effectively dealt with by their

2.1 Explain the entitlement to any estate not effectively disposed of by the will/codicil

2.1 s33(1) Administration of Estates Act (AEA) 1925 (as amended); Part IV AEA 1925 (as amended); rights of surviving spouse/civil partner (including


will/codicil 2.2 Explain property that passes on death

independently of the terms of a valid will or operation of the intestacy rules

2.3 Analyse a given legal situation on what

will happen to a client’s property on death if not dealt with by their will/codicil in order to offer practical advice and assistance

elections available to them); issue; other relatives; the Crown; meaning of “statutory trusts”

2.2 Property that does not pass to PRs but is part of

the estate for inheritance tax (IHT) purposes; property that does not pass to PRs and is also not part of the IHT estate



3 Understand how a successful claim under the Inheritance (Provision for Family and Dependants) Act 1975 may affect distribution under the terms of a will and/or operation of the intestacy rules

3.1 Explain the law relating to any such claim for financial provision

3.2 Analyse a given legal situation on how

a successful claim may affect distribution of an estate in order to offer practical advice and assistance

3.1 Inheritance (Provision for Family and Dependants) Act 1975 (as amended (I(PFD)A) and relevant case law; time limit; categories of applicant; failure to make reasonable financial provision; guidelines which court takes into account in determining this and the type of order (if any) to make; orders made against deceased’s net estate


and assistance, eg, advising the client on the likelihood of a successful claim in a given situation

4 Understand the requirements in English law for the creation of a valid will/codicil

4.1 Explain the necessary capacity to make a will/codicil

4.2 Explain the requirement of the

testator’s intention

4.1 Rules in Banks v Goodfellow (1870) and Parker v Felgate (1883); Mental Capacity Act 2005; burden of proof and presumptions that may apply

4.2 Knowledge and approval; burden of proof and

presumptions that may apply; position where testator blind/ illiterate/will is signed on behalf of testator, or there are suspicious circumstances


4.3 Explain the relevant formality requirements


these requirements in order to offer practical advice and assistance

4.3 s9, Wills Act 1837 (as amended); burden of proof and effect of including a suitable attestation clause

4.4 Analysis of a complex scenario to offer advice and assistance, eg, drafting paragraphs for letters to clients and internal memoranda

5 Understand the principles of construction of a will/codicil

5.1 Explain the court’s approach to the construction of a valid will/codicil

5.2 Explain the effect of the different types

of gift that may be found in a will 5.3 Explain the causes and consequences

of failure of such gifts 5.4 Analyse a given legal situation on

these principles of construction in order to offer practical advice and assistance

5.1 Ascertaining testator’s intention, ie, presumptions applied and how these may be rebutted; admissibility of extrinsic evidence; date from which will speaks; omitting, changing and supplying words; class gifts and class closing rules; gifts to “children”

5.2 Specific, general, demonstrative, pecuniary and

residuary gifts; doctrine of incorporation by reference

5.3 Ademption; lapse; uncertainty; s15 Wills Act

1837 (as amended); gifts for illegal or immoral purpose or contrary to public policy



6 Understand the principles relating to the revocation or alteration of a will/codicil

6.1 Explain the possible causes and extent of revocation of a will/codicil

6.2 Explain the effect of alterations and

obliterations in a will/codicil 6.3 Analyse a given legal situation on

these principles relating to revocation and alteration in order to offer practical advice and assistance

6.1 Marriage/civil partnership; divorce or nullity/ dissolution or nullity of civil partnership; later will/codicil; destruction; conditional revocation

6.2 s21 Wills Act 1837; conditional revocation;

consequences of invalid alterations 6.3 Analysis of a complex scenario to offer advice


7 Understand the taxation principles 7.1 Explain the principles of the charge to 7.1 Transfers of value; chargeable transfers;


relevant to will drafting and associated tax planning measures

inheritance tax (IHT) and its calculation 7.2 Explain the basic principles of income

tax, capital gains tax (CGT) and IHT applying to trusts (post-Finance Act 2006)

7.3 Explain appropriate opportunities for

basic IHT planning in lifetime and in the will


relevant taxation principles and planning measures in order to offer practical advice and assistance

excluded property; dispositions not transfers of value; potentially exempt transfers (PETs); lifetime transfers that are chargeable when made (LCTs); gifts with reservation of benefit (GROBs); occasions of charge to tax; cumulation; taper relief; liability and burden

7.2 Income tax: liability of trustees, liability of

beneficiaries; CGT: on creation, subsequent liability of trustees and beneficiaries; IHT: on creation, subsequent chargeable events

7.3 Use of exemptions and reliefs; PETs; trust

policies; issues relating to gifts to spouses/civil partners; issues relating to gifts to minors; use of trusts; interaction with CGT



8 Understand the elements of will drafting

8.1 Identify relevant background information required on taking instructions

8.2 Explain the structure and contents of

the will required to meet the client’s needs

8.3 Explain arrangements for execution

8.1 Client’s personal details, including any previous will; details of family and any dependants; size and nature of client’s estate, including “expectations” and any existing cumulative total for IHT and any PETs; some assessment of the estate of any spouse/civil partner

8.2 Commencement and revocation; appointment of

executors and trustees; appointment of guardians (if appropriate); issues relating to specific and pecuniary gifts; issues relating to residuary gifts; issues relating to gifts to charities etc; substitutional gifts; use of survivorship clauses; extension/limitation of administrative powers; date and attestation clauses

8.3 Generally; precautions where capacity and/or


8.4 Analyse a given legal situation on will

drafting in order to offer practical advice and assistance

knowledge and approval may be an issue 8.4 Analysis of a complex scenario to offer advice

and assistance, eg, drafting clause(s) for inclusion in will; critique of will and amending errors in drafting

9 Understand the law and practice relating to the issue of grants of representation

9.1 Explain the nature and effect of the principal types of grant

9.2 Identify when a grant is not necessary

to deal with property of the deceased 9.3 Explain entitlement to the appropriate

grant in a particular case 9.4 Explain issues affecting appointment of

PRs 9.5 Explain the nature and effect of

caveats and citations, and use of standing searches

9.6 Explain the initial practical steps to be

taken on receipt of instructions to prepare an application to obtain a grant

9.1 Evidential significance; confirmation of title of executors; conferment of title on administrators; circumstances in which a grant may require amendment or revocation

9.2 Property not passing to PRs on death (as

identified in 2.2 above); small sums due to estate

9.3 Rules 20 and 21 Non-Contentious Probate

Rules 1987(NCPR): Probate or Letters of administration with will annexed; Rule 22 NCPR: simple administration; administration de bonis non

9.4 Capacity; position where there are several

claimants; number; renunciation / power reserved

9.5 Caveats: Rule 44 NCPR; warnings; subsequent

procedure: citations, ie, Rules 46 – 48 NCPR; types; procedure on issue; subsequent procedure: standing searches, ie, where applicant wishes simply to be warned of the issue of a grant

9.6 Eg, action needed to deal with any perceived

“difficulties” with will; action needed if a will/codicil is lost or accidentally or mistakenly destroyed; identifying type of grant needed and proposed PRs; identifying sources of interim



issuing of grants of representation in order to offer practical advice and assistance

financial assistance that may be available if needed by deceased’s family; registering death; valuation of assets and liabilities



10 Understand the powers and duties of PRs

10.1 Explain the fundamental duties of PRs 10.2 Explain the exercise of administrative

powers of PRs 10.3 Analyse a given legal situation on the

powers and duties of PRs in order to offer practical advice and assistance

10.1 s25 AEA 1925 as amended; s1 Trustee Act (TA) 2000; liability for breaches of duty

10.2 Fiduciary nature; statutory powers and relevant

case law, ie, relating to delegation; investment; maintenance of minors; advancement of capital; appropriation; receipts for minor’s property; insurance; running deceased’s business; settling claims by or against the estate; purchase of land: express powers, ie, extensions/modifications to statutory powers commonly found in wills



11 Understand the requirements of Her Majesty’s Revenue and Customs (HMRC)

11.1 Identify whether or not the estate is an “excepted estate” for IHT purposes

11.2 Explain the completion of the

appropriate return of estate information/IHT account

11.3 Explain the funding and payment of

tax due

11.1 IHT (Delivery of Accounts) (Excepted Estates) Regulations 2004 (as amended)

11.2 Form IHT 205; Form IHT400 (including

appropriate Schedules) and calculation of tax due; Schedule IHT402 where appropriate

11.3 Eg, funds in deceased’s bank accounts

(Schedule IHT423); bank loan; loan from beneficiary; sale of assets; payment of tax due on delivery of the account (online or by cheque using IHT reference number with Schedule IHT422)



requirements of HMRC in order to offer practical advice and assistance


and assistance, eg, in submitting Form IHT 205; IHT400, including Schedules and the calculation of IHT; and Schedule IHT402 if appropriate

12 Understand the requirements of

the court 12.1 Explain the nature and essential

purposes of oaths in support of an application for a grant of representation

12.2 Explain the requirements for an oath

for Executors/Administrators with will annexed/Administrators/Administrators de bonis non to support an application for the appropriate grant

12.3 Explain the need for, and nature of,

further affidavit evidence that may be required by the court

12.4 Identify the final steps leading to the

lodging of the papers at the selected Registry


requirements of the court in order to offer practical advice and assistance

12.1 Affidavit evidence, ie, to identify deceased and applicant(s) for grant; to establish the title of the applicant(s); in the case of letters of administration, to account for those having a better right to apply

12.2 Dealing appropriately with the various

requirements of the court 12.3 Rules 12 – 16 NCPR 12.4 Swearing/affirming oath; lodge this with - will (if

any); if an excepted estate - IHT 205, otherwise probate summary (receipted IHT421); any further supporting documents; probate fees


and assistance, eg, drafting appropriate oath using printed pro forma; drafting paragraphs for letters to clients and internal memoranda

13 Understand the law and practice relating to the administration and distribution of the estate

13.1 Explain the protection available to PRs against claims

13.1 By unknown beneficiaries/creditors; missing beneficiaries/creditors; against applications under I(PFD)A 1975; in relation to leasehold interests; future and contingent liabilities; for unpaid IHT on lifetime gifts


13.2 Explain the collection/realisation of assets

13.3 Explain payment of debts (solvent

estate) 13.4 Explain payment of debts (insolvent

estate) 13.5 Explain post-death changes affecting

distribution of the estate 13.6 Explain payment of legacies 13.7 Explain income tax liability of PRs 13.8 Explain liability for capital gains tax

(CGT) for PRs 13.9 Explain the ascertainment and

distribution of residue

13.2 Registration of grant; prioritising the collection of sums due to the estate; practical constraints on sales of assets

13.3 Secured creditors; unsecured creditors, ie,

statutory order; marshalling; contrary provision in will

13.4 Secured creditors; unsecured creditors; ie, bankruptcy order (cannot be varied by testator); protection of PRs

13.5 In addition to an order under I(PFD)A 1975,

disclaimers and variations; IHT and CGT consequences

13.6 Specific gifts; pecuniary legacies; abatement;

appropriation; receipts; position where beneficiary is a minor

13.7 Deceased’s income arising before death;

income of the administration period 13.8 On gains made by deceased in lifetime; on

disposals made in the course of administration; in relation to transfers to “legatees”; position of beneficiaries

13.9 Finalising and discharging liability for income

tax and CGT of the deceased and for the administration period; finalising and discharging IHT liability of deceased and the estate; special rules for CGT and IHT purposes where land/quoted securities sold within 12 months of death for less than probate value; corrective accounts; certificates of discharge; recovery of IHT for the benefit of the residuary estate from those who bear its burden; administration


13.10 Explain beneficiaries’ right to compel

due administration 13.11 Explain remedies available to

beneficiaries 13.12 Analyse a given legal situation on the

administration and distribution of the estate in order to offer practical advice and assistance

expenses, ie, reasonable funeral expenses; legal costs; fees of other professionals; remuneration; payment of legacies; preparation of estate accounts (income, capital and distribution accounts; commentary); discharge of PRs and transfer of assets; assents

13.10 Date for payment of entitlement under

will/intestacy 13.11 Administration proceedings; actions to recover

“loss”, ie, personal action against PRs; tracing; personal action against recipients of estate assets





understanding of Probate practice Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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Section 3: The Professional Skills Units Unit Number Unit Title Page Numbers Unit 22 Client Care Skills 273-278 Unit 23 Legal Research Skills 279-284


Unit 22 Title:

Client Care Skills

Level:

6

Credit Value:

7




1 Understand the role played by negotiation within legal practice

1.1 Explain the key underpinning features of successful client interviewing

1.2 Explain the importance of negotiation in

legal practice 1.3 Explain the concepts of principled

negotiation, positional bargaining, collaborative and distributive negotiation situations

1.1 Understanding the purpose of the interview; the interview’s objectives; the advantages and disadvantages of interviewing through different media; planning to realise objectives; interview styles and tactics, eg, listening to the client, questioning to obtain more information, answering the client’s questions, sticking to the point, moving matters forward; interview behaviours, eg, greetings, closures, remaining professional, being approachable, but never overly familiar, dealing with the unexpected etc

1.2 Definitions of negotiation; the basic premise;

different types of negotiation styles; its advantages and disadvantages in legal practice; recognising the importance of ethical behaviour within legal negotiation

1.3 Principled negotiation and positional

bargaining; the advantages and disadvantages of these negotiation styles; negotiating collaboratively (win, win); alternatively, a distributive situation (win, lose); managing the competitive approach to negotiation


1.4 Explain the importance of making

progress in a negotiation 1.5 Explain the role of the BATNA within

negotiation 1.6 Prepare for a negotiation 1.7 Evaluate methods of communication and

persuasion in negotiation

1.4 Understanding that progression is the most

important part of negotiation; recognising the barriers to progress both by the opponent and one’s own negotiating style; identifying the potential barriers to progress and the use of persuasion techniques to make progress

1.5 Knowing the BATNA (best alternative to a

negotiated agreement) in a case; understanding the role of a BATNA within negotiation

1.6 The basic need to plan for interviews and

situations where negotiation is required; an ability to assess one’s own and other’s cases/positions; familiarity with using a SWOT analysis and the concept of risk assessment; the importance of planning how to conduct oneself within an interview or negotiation; the advantages and disadvantages of passivity, activity, authority and empathy as negotiation behaviours; the importance of being able to synthesise all available information into a coherent plan and evaluate the strengths and weaknesses of one’s own and other’s cases; anticipating the issues raised and constructing arguments to be used within the negotiation; being able to outline an overall strategy for a negotiation

1.7 Understanding the role of power during

negotiations and how this can influence communication and cause communication difficulties; identifying what improves communication during negotiation; managing conflict within negotiations and how to move


1.8 Evaluate the medium of negotiation to

identify the most appropriate for negotiation within a legal context

from an entrenched position; the role of questioning in negotiation

1.8 The various media of negotiation, eg,

telephone, meetings, at court, round table and collaborative negotiation; identifying the advantages and disadvantages of each medium

2 Demonstrate good practice in legal writing 2.1 Write accurately, precisely and

succinctly 2.2 Write using relevant information to

produce content that thoroughly and appropriately addresses the issues under consideration

2.3 Write content with a logical and

transparent structure

2.1 All information should be presented accurately, precisely and succinctly; writing should not be repetitive, ambiguous or inaccurate; nor should include material which is verbose or unnecessary; an awareness of the use of ‘plain English’ in legal writing and the existence of guides to good practice; the uses of legal jargon, its inclusion in writing only in instances where it is necessary and it is expressed in a way that the recipient will understand

2.2 Working from a series of documents, some of

them including complex facts and ideas; interpreting content and the use value of information; summarising complex information; applying information to a situation; understanding the client and their requirements; advising sensitively and appropriately paying attention to all relevant legal and non-legal facts; managing expectations; writing content that is complete, relevant and correct

2.3 Using judgment to arrive at the most

appropriate structure for documents; including the appropriate use of subheadings, paragraphs and sequencing of information;


2.4 Write using correct grammar, spelling

and punctuation 2.5 Write with a tone and style that reflects

circumstance

structure of documentation should be clear and logical and easy for the reader to follow

2.4 The importance of grammar, spelling and

punctuation to a professional career; good grammar, spelling and punctuation skills; which should be commensurate with the level of skill found in a professional business environment; the intolerance of even superficial errors within business and the impression created by errors; the importance of proofreading written materials

2.5 The difference between tone and style; the

importance of getting tone and style correct; factors affecting tone and style of writing: the medium and the context of communication, the recipient, overarching objectives; awareness of the recipient(s) and the potential effects of the communication; varying tone and style to meet the needs of a situation, a recipient, an overarching objective

3 Understand professional conduct issues

arising in practice 3.1 Explain the major client care aspects of

the SRA (Solicitors’ Regulation Authority) Code of Conduct

3.2 Describe those professional

organisations within their area of practice and the benefit of membership of such

3.1 An understanding of Rules 1, 2, 3 ,4, 6, 10, 11 of the SRA Code and procedures developed by firms to uphold these rules; a sound awareness of the issues of conflict of interest, confidentiality, complaints and client relations; familiarity with firm’s complaints procedures and key best practice steps in resolving a complaint; the ILEX Code of Conduct; the SRA and disciplinary measures; disciplinary measures for ILEX members and fellows

3.2 Students should be aware of panel

membership and specialist law organisations, for eg, in the context of Family Practice:


organisations Family and Children Panels, Resolution etc 4 Understand the importance of client care

within legal practice 4.1 Explain the SRA Code of Conduct rules

on client care 4.2 Explain The Law Society’s guidance on

client care 4.3 Explain the sound business reasons for

good client care

4.1 Rule 2 of the SRA Code as the basis of the retainer and the main rule on client care; a good understanding of this rule and the associated requirements in client care

4.2 The Law Society guidance on client care

letters and complaint management and ‘Your Clients, Your Business’ as well as the benefits of LEXCEL and membership of other professional bodies

4.3 Awareness of the commercial reality of a law

firm as a business; the impact on the business of poor client care and the importance of adhering to procedures in the firm as well as professional standards


Additional information about the unit Unit aim(s) To accredit a range of sophisticated and

practical client care skills Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)

This unit may provide relevant underpinning knowledge and understanding towards units of the Legal Advice standards; specifically, Unit 1 Establish Communication with Clients, Unit 2 Support Clients to make use of the Service, Unit 3 Develop and Manage Interviews with Clients, Unit 4 Provide Information and Advice Using the Telephone, Unit 5 Provide Information to Clients, Unit 6 Support Clients to Plan, Implement And Review Action, and Unit 7 Provide Continuing Support to Clients


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Unit 23 Title:

Legal Research Skills

Level:

6

Credit Value:

7




1 Analyse the scope and complexity of a practical legal problem requiring research

1.1 Identify the relevant facts from a fact pattern

1.2 Identify the client’s objectives 1.3 Identify the research issues raised by the

client’s problem 1.4 Compile key words and phrases to begin

research

1.1 Distinguish material from non- material facts; presenting a concise summary of the facts as the beginning of research

1.2 Ascertaining client’s objectives in requesting

advice; identifying both legal and non-legal objectives

1.3 From these objectives, identifying the initial

areas requiring research; not jumping to early conclusions

1.4 A list of words and/or phrases in order to begin

using indexes to secondary sources; the chosen words and phrases should not be too wide or specific as this may not be useful; a knowledge of Boolean searching when using phrases or combination of words from their analysis

2 Evaluate legal research sources 2.1 Distinguish between primary and

secondary sources

2.1 Awareness of the major secondary sources available in a subject area; ie, in terms of encyclopaedias (eg, Halsbury’s Laws) and practitioner texts; sources can be in hard copy


2.2 Evaluate printed and electronic sources

for reliability, relevance and currency

or electronic; using primary sources and understanding the difference between them and secondary sources

2.2 Students should be able to critically evaluate

the reliability of the source (particularly electronic sources); factors affecting validity: eg, whether the source is updated regularly, the academic or legal qualifications of the authors or whether the source includes any primary sources

3 Perform legal research appropriately 3.1 Use secondary sources and primary

sources to research law 3.2 Read sufficient secondary sources to

understand the specific area of law being researched

3.3 Compile a list of primary sources from

reading of the secondary sources

3.1 Using sources correctly and updating sources where necessary; understanding the various sources of law: eg, use of the noter up in Halsbury’s Laws or the electronic updates in online sources; the availability and reliability of sources; how each source is compiled; how the information is organised and accessed; understanding that not all sources are complete and more than one source is generally required to gain a complete reading of the law

3.2 Understanding that the secondary source will

not contain information that will instantly answer the question; reading sufficient to gain a good grasp of the scope of the topic; the need to undertake further reading in other sources as sources will vary in coverage of the subject

3.3 Compiling a list of primary sources from a

reading of secondary sources in order to come to a reading list of sources; priority can be given to sources that arise a great deal, eg, higher courts, more recent cases etc


3.4 Assess the information found and

prioritise primary law sources 3.5 Correctly read and analyse primary

sources

3.4 Evaluating the research to date; decide

whether more secondary source reading is required

3.5 Using the list of primary sources to consolidate

the research and to ensure that the advice will be correct; secondary sources are subject to the quality of the author’s writing and the decisions made about textual content; primary source references should always be checked

4 Find and analyse the law in relation to

specific legal problems 4.1 Find and analyse relevant statutes 4.2 Find and analyse relevant case law 4.3 Find and analyse relevant statutory

instruments

4.1 Awareness of where statutes are published, how they are amended and how they are repealed; familiarity with commencement clauses as well as the main sections; analysis of statute in order to identify the content of the law; the law’s relevance and appropriateness to the issue at hand; evaluating the reliability of the source

4.2 Using citations to find cases from a number of

sources; evaluating these sources; analysis of the case to understand the decision of the court; its relevance and appropriateness to the issue at hand; updating the case to ensure that it is followed through the appeals system

4.3 Awareness of where statutory instruments are

published, how they are amended and how they are repealed; analysis of statutory instrument in order to identify the content of the law and its scope; the law’s relevance and appropriateness to the issue at hand; evaluating the reliability of the source


5 Record and evaluate information 5.1 Accurately record a summary of the law from research sources

5.2 Evaluate sources and research in order

to understand when the application of the law to the client facts has been successfully achieved

5.1 A summary of research from the secondary and primary sources as the research proceeds; containing a record of all sources consulted, the research method (including use of key words) and a record of all updating of sources

5.2 As the research proceeds, evaluation of the

sources and information found for the accuracy, currency and relevance of the material to the problem at hand; concluding when sufficient research has been done, ie, evaluating the research to be able to identify any gaps in the information found and also recognise when the information covers the situation fully, reading widely and reading enough

6 Synthesise research to present advice 6.1 Synthesise material from sources into a

structured and accurate report

6.1 Understanding that, for the purposes of the exercise, a report is a structured piece of writing which, for eg, might be a letter, a short, formal/informal report, an internal memorandum; understanding that the audience may be either/both the client or an internal third party; explaining the law; applying the law to the immediate facts of the case in order to precisely address issues rather than simply provide a general statement of the law; the content of the report clearly permits a supervisor to check the understanding of the law upon which the advice is based; using both primary and secondary sources in the compilation of the report; taking care to indicate clearly which information is from which source; paying attention to the format and structure of the report, eg, the order and sequencing of


6.2 Evaluate advice to ensure it is

comprehensive and sensitive to the needs of the recipient

information, ensuring a report has a beginning, a middle and an end; paying attention to the way in which the report is expressed, ie grammar, punctuation and spelling: this must be of a standard appropriate to a professional business document

6.2 The need for comprehensive advice which not

only covers the legal ground, but is also both practical, ie, is sensitive to the non-legal dimensions of a situation, eg, commercial and diplomatic reasons; and covers procedural issues where relevant, eg, availability of mediation or limitation periods; offering a professional opinion based on the facts expressed, eg, the use of a recommendation of the best course of action available to the client or an analysis of the likelihood of success in a case


Additional information about the unit Unit aim(s) To accredit a range of sophisticated and

practical legal research skills Unit expiry date 31 March 2015 Details of the relationship between the unit and relevant national occupational standards (if appropriate)



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