FLK assessment 1

FLK assessment 1: Business Law and Practice, Dispute Resolution, Contract, Tort, Legal System, Public Law, Legal Services

Business Law and Practice

Assessment Objectives

Candidates must exhibit their ability to aptly and effectively utilise pertinent core legal principles and rules at the level of a proficient newly qualified solicitor in practice, addressing realistic client-focused and ethical dilemmas in the following areas:

• Inception of a new business via a company, partnership, LLP, or as a sole proprietor.
• Regulation of a business and corporate decision making to ensure adherence to statutory and other legal mandates.
• Understanding the interests, rights, obligations, and powers of stakeholders in a business.
• Sourcing funds for a business.
• Business and stakeholder taxation.
• Closure of a solvent business, corporate insolvency, and personal bankruptcy.
• Candidates should prove their ability to act with honesty and integrity, in line with the SoSC, the SRA Principles, and the Code of Conduct.

Candidates are anticipated to apply knowledge derived from the below-mentioned areas of law and practice.

Questions may incorporate any combination of the subject areas within this FLK assessment 1 which might be encountered in a practical context.

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Dispute Resolution

Assessment Objectives

Candidates must demonstrate their ability to properly and effectively use key legal principles and rules at the level of a competent newly qualified solicitor in practice, dealing with realistic client-based and ethical challenges in the following areas:

• Evaluation of the merits of a claim or defense.
• Choosing arbitration, mediation, or litigation as an appropriate mechanism to resolve a dispute.
• Pre-action contemplations and actions.
• Initiating, responding to, or progressing a claim.
• Managing a case and any interim applications pertinent to a claim.
• Determining the necessary evidence and disclosure steps required in initiating, responding to, progressing, or defending a claim.
• Preparing a case for trial, the trial itself, and any post-trial actions.
• Procedures and processes related to the costs involved in dispute resolution.
• Candidates must show their ability to act honestly and with integrity, in accordance with the SoSC, the SRA Principles, and the Code of Conduct.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice outlined below.

Candidates are expected to draw upon and apply knowledge from the areas of law and practice outlined below.

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Contract

Assessment Objectives

Candidates must display their ability to aptly and effectively apply crucial legal principles and rules, at the level of a competent newly qualified solicitor in practice, to realistic client-centered and ethical issues in the following areas:

• Establishment/formation of a contract.
• Contract contents.
• Causation and remoteness.
• Elements that can void a contract.
• Contract discharge and remedies.
• Unjust enrichment.
• Candidates are required to demonstrate their capacity to act honestly and with integrity, and in accordance with the SoSC, the SRA Principles, and the Code of Conduct.

Candidates are anticipated to apply knowledge derived from the below-mentioned areas of law and practice.

Questions may involve any combination of the subject areas within this FLK assessment 1 which could be encountered in a practical context.

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Tort

Evaluation Guidelines

Test-takers are expected to adeptly apply key legal principles and regulations in a manner that would be expected of a proficient recently certified attorney in a real-world setting. This should encompass real-life client-based and ethical issues and circumstances in these fields:

• Negligence
• Possible solutions and defenses
• Liability of premises' owners
• Liability for defective products
• Nuisance and the doctrine in Rylands v Fletcher

Participants should prove their capacity to act truthfully, with integrity, and following the SoSC, the SRA Principles, and the Code of Conduct.

Applicants should incorporate and utilize information from the identified areas of law and practice. Any combination of the subjects within this first FLK test, as encountered in practice, may be used to formulate questions.

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The Legal System

Evaluation Guidelines

Candidates should be able to apply essential legal principles and rules effectively and aptly, to the standard of a proficient newly licensed attorney, to real-life client-related and ethical dilemmas and scenarios in the following areas:

• Candidates should be able to apply essential legal principles and rules effectively and aptly, to the standard of a proficient newly licensed attorney, to real-life client-related and ethical dilemmas and scenarios in the following areas:
• Constitutional, Administrative law and EU law
• Legal services

Candidates should exhibit their ability to act with honesty, integrity, and in adherence to the SoSC, the SRA Principles, and the Code of Conduct.

Candidates should be prepared to utilize knowledge from the listed areas of law and practice. Questions may include any combination of the topics within this first FLK assessment that might come up in practice.

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Legal Knowledge Essentials: Business Law and Practice, Dispute Resolution, Contract, Tort, Legal System, Public Law, Legal Services

Business Structures, Rules, and Procedures

(This excludes the Listing, Prospectus, Disclosure Guidance, Transparency Rules, and any other FCA, London Stock Exchange, market rules, or codes)

Business and organisational structures should be understood, including sole traders, partnerships, LLPs, private and unlisted public companies.

Grasp the concepts of legal personality and limited liability.

Understand the processes and documentation needed to form a company, partnership, or LLP, and other steps mandated under companies and partnerships legislation to enable the entity to start operations:

• Constitutional documents
• Companies House filing requirements

For Finance, understand:

• Various funding options: debt and equity
• Different types of security
• Distribution of profits and gains
• Requirements for financial records, information, and accountingd

For Corporate governance and compliance:

• Rights, duties, and powers of directors and shareholders of companies
• Company decision-making and meetings: procedural, disclosure, and approval requirements
• Documentary, record-keeping, statutory filing, and disclosure requirements
• Appointment and removal of directors
• Protection of minority shareholders

For Partnership decision-making and authority of partners

• Understand procedures and authority under the Partnership Act 1890
• Common provisions in partnership agreements

In Insolvency (both corporate and personal):

• Options and procedures: CVA/IVA, bankruptcy, administration, fixed asset receivership, voluntary and compulsory liquidation
• Recovery of assets for creditors – preferences, transactions at an undervalue, fraudulent and wrongful trading, setting aside a floating charge
• Order of priority for distribution to creditors

For Taxation - business:

Income Tax:

• Chargeable individuals/entities (employees, sole traders, partners, shareholders, lenders, and debenture holders)
• Basis of charge (types of income/main reliefs and exemptions)
• The charge to tax: calculation of income tax in each of England and Wales and collection
• The scope of anti-avoidance provisions

Capital Gains Tax:

• Chargeable individuals/entities (sole traders, partners, and shareholders)
• Basis of charge (calculation of gains/allowable deductions/main reliefs and exemptions)
• The charge to tax: calculation and collection
• The scope of anti-avoidance provisions

Corporation Tax:

• Basis of charge
• Calculation, payment, and collection of tax
• Tax treatment of company distributions or deemed distributions to shareholders
• Outline of anti-avoidance legislation

Value Added Tax:

• Fundamental principles relating to scope, supply, input, and output tax
• Registration requirements and issue of VAT invoices
• Returns/payment of VAT and record keeping

Inheritance Tax:

• Business property relief

Fundamentals, Procedures, and Processes in Dispute Resolution

Various methods for dispute resolution:

Identify the unique features of arbitration, mediation, and litigation that make them suitable for settling disputes.

Settling a dispute through a civil claim involves:

• Initial considerations: time restrictions, pre-action protocols:
• parties and legal grounds
• Determining limitation periods for contract and tort claims
• Practice Direction – Pre-action conduct and its principles and purposes
• Pre-action protocols for specific claims and consequences of non-compliance
• Applicable law: mechanisms for determining the laws of which country apply to a contract or tort claim filed in the courts of England and Wales
• Jurisdiction: mechanisms to establish jurisdiction over an international contract or tort claim
• Practice Direction – preliminary considerations for using the Welsh language in civil proceedings

Where to start proceedings:

• Distribution of business between the High Court and the county court
• Jurisdiction of specialized courts

Initiating and serving proceedings:

• Filing a claim form
• Adding, removing or substituting parties
• Serving a claim form within the jurisdiction
• Procedure for serving a claim form outside the jurisdiction (with or without court permission) and mechanisms for valid service in another jurisdiction
• Deemed dates of service and time limits for serving proceedings
• Service by an alternate method

Responding to a claim:

• Admission of the claim
• Acknowledging service and filing a defense and/or counterclaim
• Disputing the court’s jurisdiction
• Entering and setting aside default judgment
• Discontinuation and settlement
• Time limits for responding to a claim

Statements of case:

• Purpose, structure, and content of a claim form, particulars of a claim, or defense relating to a contract or tort claim
• Purpose, structure, and content of a reply, Part 20 claim, or defense to Part 20 claim
• Requests for additional information about statements of case
• Amendments

Interim applications:

• Procedure for making an application
• Purpose, procedure, and required evidence for specific applications:
  • summary judgment
  • interim payments
  • interim injunctions

Managing Legal Cases:

• the paramount principle
• determination of case track
• guidelines for case management for cases on the fast or multi-tracks
• consequences and remedies for not complying with orders
• expenses and case management meetings.

Evidence:

• applicability, indirect evidence, and permissibility
• the responsibility and level of evidence required
• specialist evidence -
  • opinion-based evidence
  • responsibilities of specialists
  • collective singular experts
  • interactions among experts
• evidence from witnesses -
  • statements from witnesses
  • sworn written statements.

Disclosure and Review:

• routine disclosure
• mandates for disclosure
• distinct disclosure
• pre-action and third-party disclosure
• digital disclosure
• privileged and off-the-record communications
• relinquishment of privilege.

Trial:

• calling witnesses
• pre-trial activities -
  • use of pre-trial checklists (listing questionnaires) and hearings
  • use of trial document packages.
• trial process including communication styles, courtroom manners and the difference between direct and indirect questioning
• the meaning and impact of a ruling.

Expenses:

• cost planning and budgeting
• inter-party cost orders (preliminary and final)
• costs involving non-parties
• Part 36 and other proposals
• guarantee for costs
• predetermined and evaluated costs.

Appeals:

• authorization
• destination of appeals
• justifications for appeals.

Enforcement of Monetary Judgments:

• verbal examination
• techniques of enforcement
• steps and mechanisms for successful enforcement in a different jurisdiction.

Basic principles of contract law

Creation:

• proposal and agreement
• exchange of values
• intent to establish legal obligations
• definiteness
• ability to contract.

Parties Involved:

• confidentiality of contract
• rights of individuals not party to the contract.

Contract Clauses:

• explicit terms
• inclusion of terms
• terms implied by law and statute
• disclaimer clauses
• interpretation of contract conditions (conditions, warranties and uncertain terms)
• alteration.

Invalidating Factors:

• misrepresentation
• error
• unfair contract stipulations
• duress and undue sway
• illegality.

Termination:

• end or other specific event
• violation
• interruption
• fundamental concepts of restitution and unjust enrichment in the context of contract termination.

Remedies:

• compensation
• predetermined sums and penalties
• specific implementation
• injunctions
• obligation to minimize damage
• indemnifications
• guarantees.

Causation and Remoteness

Foundational Principles of Tort Law

Negligence:

• duty of care (standard (general and professional)) and violation
• cause (single and multiple)
• distance and loss
• principles of remedies for personal injury and death claims
• claims for pure economic loss arising from either a negligent act or false statement
• claims for psychiatric harm
• employers’ direct liability (operation and effect of the common law principles).

Defenses:

• consent
• contributory negligence
• illegality
• necessity.

Principles of Vicarious Liability

Occupiers’ Liability:

• legal prerequisites for a claim under the Occupiers’ Liability Act 1957 (in relation to visitors) and the Occupiers’ Liability Act 1984 (in relation to non-visitors)
• defenses
• exclusion of liability.

Product Liability:

• principles in negligence
• principles of the Consumer Protection Act 1987.

Nuisance:

• public and private annoyance
• the rule in Rylands v Fletcher
• remedies (damages and injunctions) and defences.

The Legal System of England and Wales and Sources of Law

The Courts:

• the judiciary
• court hierarchy, the appeal system and jurisdiction
• rights of representation.

Development of Case Law: Precedent Doctrine

Primary Legislation:

• Structure of an Act of Parliament
• Structure of an Act of Senedd Cymru

Statutory Interpretation:

• Literal rule
• Golden rule
• Mischief rule
• Purposive approach
• Presumptions
• Aids to statutory interpretation and construction
• Interpretation of legislation made by Senedd Cymru

Application of Legislation by Senedd Cymru and Westminster to England and Wales.

Constitutional and Administrative Law and EU Law

Core Institutions of the State and their Interrelationships:

• Parliament and Parliamentary Sovereignty
• Central Government and Accountability
• Status of Devolved Institutions and their Relationship with Westminster
• The Monarch and the Crown
• Role of Constitutional Conventions
• Prerogative Power: Relationship with Legislation and Constitutional Conventions
• Parliamentary Privilege

Legitimacy, Separation of Powers, and the Rule of Law:

• Powers and Procedures for Enactment, Implementation, and Repeal of Primary and Secondary Legislation by Westminster, Senedd Cymru, and Welsh Ministers
• Public Order Law
  • Processions
  • Assemblies
  • Breach of the Peace
• Judicial Review
  • Nature, Process, and Limits of Judicial Review
  • Supervisory Nature
  • Remedies
  • Decisions Subject to Challenge
  • Standing
  • Time Limits
  • Grounds:some text
    • Illegality
    • Irrationality
    • Procedural Impropriety
    • Legitimate Expectation

Human Rights Act 1998 and the European Convention on Human Rights:

• Sections 2, 3, 4, 6, 7, 8, 10 of the Human Rights Act 1998
• Schedule 1 of the HRA 1998, the "Convention Rights"

Place of EU Law in the UK Constitution:

• Sources of Retained EU Law
• Categories/Status/Interpretation of Retained EU Law
• Modification/Withdrawal of Retained EU Law
• Parliamentary Sovereignty and Retained EU Law

Legal Services

Regulatory Role of the SRA:

• Principles and Risk-Based Regulation
  • Reserved Legal Activities
  • Professional Indemnity Insurance
  • Other Regulated Providers of Legal Services
• Overriding Legal Obligations
  • The Equality Act 2010
  • Money Laundering
    • Purpose and Scope of Anti-Money Laundering Legislation, including the International Context
    • Circumstances Encountered in Practice that Require Reporting Suspicion of Money Laundering, including Reporting Recipients, Timing, and Procedures
    • Direct and Indirect Involvement Offenses and Defenses under the Proceeds of Crime Act 2002
    • Due Diligence Requirements
  • Financial Services
    • Financial Services Regulatory Framework, including Authorization and its Application to Solicitors' Firms
    • Recognition of Relevant Financial Services Issues, including Specified Investments, Specified Activities, and Relevant Exemptions
    • Application of the Financial Services and Markets Act 2000 and Related Secondary Legislation to Solicitors' Work
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  • Private Retainer
  • Conditional Fee Arrangements
  • Damages Based Agreements
  • Fixed Fees
  • Eligibility for Criminal and Civil Legal Aid
  • Third-Party Funding
  • Legal Expenses Insurance

Funding Options for Legal Services:

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