UNIT SPECIFICATION HANDBOOK

ILEX Level 6 Single Subject Certificate

ILEX Level 6 Professional Higher Diploma in Law and Practice

ILEX Graduate ‘Fast-Track’ Diploma

This specification is for 2012 examinations Page 1 of 276 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

Changes in the Law

ILEX will review its unit specifications annually to identify and advise on any aspects of Law and Practice which are going to be amended or introduced during the course of the upcoming academic year.

As a rule, ILEX will not expect Level 6 students to show knowledge in assessment of a change in the Law or Practice of the Law which has been implemented 6 months or less prior to the date of the assessment.

Up to date unit specifications will be posted on the ILEX website (www.ilex.org.uk).

This specification is for 2012 examinations Page 2 of 276 Section 1: The Law Units

Unit Number Unit Title Page numbers Unit 1 Company and Partnership Law 4-16 Unit 2 Contract Law 17-29 Unit 3 Criminal Law 30-41 Unit 4 Employment Law 42-52 Unit 5 Equity and Trusts 53-69 Unit 6 European Union Law 70-81 Unit 7 Family Law 82-97 Unit 8 Immigration Law 98-110 Unit 9 Land Law 111-123 Unit 10 Landlord and Tenant Law 124-134 Unit 11 Planning Law 135-145 Unit 12 Public Law 146-156 Unit 13 Law of Tort 157-169 Unit 14 Law of Wills and Succession 170-185

This specification is for 2012 examinations Page 3 of 276

Unit 1

Title: Company and Partnership Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand different forms of business 1.1 Identify the principal types of business 1.1 Sole traders, Partnerships, Limited media media Partnerships, Limited Liability Partnerships (LLP) and Companies limited by shares (public and private)

1.2 Summarise the formation of the principal 1.2 Sole-trader: occurs where an individual types of business media 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 under approved name (CA 2006 Part 5 ss

This specification is for 2012 examinations Page 4 of 276 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 Analyse the advantages and 1.3 Distinguishing between the sole trader, disadvantages of different business media 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 Apply an understanding of appropriate 1.4 Application of understanding to a complex business media to a given situation scenario

1.5 Critically evaluate a given issue or situation 1.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 2 Understand the principles of partnership 2.1 Analyse the different types of partnership 2.1 Understanding the differences between law and the rights and responsibilities of traditional partnerships, limited partnerships partners (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 partner liable; limited liability partnership: LLP Act 2000; formation; limited liability; registration procedure; statutory control; liability, eg, contractual, to 3rd parties, for

This specification is for 2012 examinations Page 5 of 276 wrongful acts and omissions, misapplications of property; breach of trust 2.2 Explain how a partnership may be 2.2 An explanation of: PA 1890; Hadlee v terminated 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 Explain the effects of insolvency of 2.3 An explanation of: PA 1890 joint and several partners liability; Insolvent Partnerships Order 1994; Partnership Voluntary Arrangement; LP Act 1907, at least one partner unlimited; LLP Act 2000, limited liability

2.4 Apply the law on the principles of 2.4 Application of the law to a complex scenario partnership to a given situation

2.5 Critically evaluate a given issue or situation 2.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

3 Understand the underpinning concepts of 3.1 Explain the concept of incorporation 3.1 Development of the company, eg, the the company company limited by shares and limited by guarantee; corporate personality; limited liability; the corporate veil, eg, Salomon (1897)

3.2 Analyse the power to pierce the corporate 3.2 Piercing the veil by the Judiciary: Torts; veil National interest, eg, Daimler (1916); Fraud, eg, Salomon (1897), Gilford Motors (1933); 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

This specification is for 2012 examinations Page 6 of 276 (IA)1986

3.3 Apply an understanding of the main 3.3 Application of understanding to a complex features of the company to a given scenario situation

3.4 Critically evaluate a given issue or situation 3.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

4 Understand the promotion and formation 4.1 Explain the role and duties of the promoter 4.1 Definition: eg, Twycross v Grant (1876-77); of the company duties; liabilities, eg, Erlanger v New Sombrero (1877-78)

4.2 Analyse the developments in companies 4.2 Effects of pre-incorporation contracts for legislation with regard to the significance of promoters, the company and 3rd parties, eg, pre-incorporation contracts 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 Explain the process of incorporation for 4.3 Role of Registrar of Companies; Companies public and private 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 4.4 Application of understanding to a complex promotion and formation to a given scenario situation

4.5 Critically evaluate a given issue or situation 4.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and

This specification is for 2012 examinations Page 7 of 276 defences, where appropriate

5 Understand the nature and purpose of the 5.1 Explain the purpose and contents of the 5.1 Definition; contents; objects clause; s8 company’s constitution memorandum of association CA2006; s18 CA 2006

5.2 Explain the purpose and contents of 5.2 Definition; contents; model articles etc articles of association

5.3 Analyse the importance of the constitution 5.3 Possible contractual effect of s14 CA 1985 of the company to members 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 Analyse the developments in the doctrine 5.4 An explanation of the effect of the objects of ultra vires 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

5.5 Apply an understanding of the nature and 5.5 Application of understanding to a complex purpose of the company constitution to a scenario given situation

5.6 Critically evaluate a given issue or situation 5.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 6 Understand the principles of share issue, 6.1 Explain how and when shares may be 6.1 Definitions of a share: Borland’s Trustee capital and capital maintenance issued and allotted and the responsibilities (1901); the statement of share capital, s9 CA and duties of those promoting an issue 2006; the abolition of authorised share

This specification is for 2012 examinations Page 8 of 276 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 Explain the rights and responsibilities that 6.2 Types of shares, eg, ordinary, preference; attach to share ownership 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 Explain the process and restrictions on the 6.3 Re Smith & Fawcett (1942): discretion to transfer and transmission of unlisted refuse to register; must give notice; s776 CA shares 2006; forged transfer of shares; transfer of shares involving a forged certificate

6.4 Explain the concept of and the restrictions 6.4 Definition: “victimless crime”, eg, EC on insider dealing 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 Analyse the doctrine of capital 6.5 Doctrine defined: eg, Trevor v Whitworth maintenance (1887); reduction of capital in articles (Table

This specification is for 2012 examinations Page 9 of 276 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

6.6 Apply an understanding of the principles of 6.6 Application of understanding to a complex share issue, capital and capital scenario maintenance to a given situation

6.7 Critically evaluate a given issue or situation 6.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

7 Understand how a company borrows 7.1 Explain the concept of the debenture and 7.1 Definition: Levy v Abercorris (1888); fixed or money differentiate between a fixed and floating floating charges: Re Panama (1869-70); Re charge Yorkshire Woolcombers (1904); Smith v Bridgend CBC (2002)

7.2 Analyse the benefits of the fixed and 7.2 Registration priority; what can cause floating charge to the company and crystallisation; the categorisation of book debenture holder debts as fixed or floating charges: ie, Siebe Gorman (1979); Re New Bullas (1994); Brumark (2000); Spectrum Plus (2005)

7.3 Analyse the importance of the type of 7.3 Effect on liquidation of fixed and floating charge and effect of registration on the charges: ie, Re Automatic Bottlemakers priority of charges in a liquidation (1926); Re Woodroffes (1986); the conclusiveness of certificate of registration: s869 CA 2006; Re CL Nye (1971); the

This specification is for 2012 examinations Page 10 of 276 avoidance of charges on a liquidation: s245 IA 1986; Power v Sharp Investments (1994)

7.4 Analyse the effectiveness of retention of 7.4 Definition: the Romalpa clause (Aluminium title clauses 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)

7.5 Apply an understanding of how a company 7.5 Application of understanding to a complex borrows money to a given situation scenario

7.6 Critically evaluate a given issue or situation 7.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 8 Understand the long-term and day-to-day 8.1 Explain the rules covering the convening 8.1 Definition of meeting, Sharp v Dawes (1876); management of the company and conduct of general meetings 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; 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 Explain the rules governing board 8.2 Constitution; frequency; voting; quorum; GM meetings has no right to interfere with the management of the company by the directors, eg, Automatic Self-cleaning Filter Syndicate Co (1906)

8.3 Explain how directors may be appointed, 8.3 Requirements, eg, number, age, natural, see

This specification is for 2012 examinations Page 11 of 276 retained, remunerated and removed 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 8.4 Definition of shadow director: Re Hydrodan different types of director and the impact of (Corby) Ltd (1994);s251 Insolvency Act the statutory list of directors’ duties in CA 1986; s22(5) CDDA 1986; eg, Secretary of 2006 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

This specification is for 2012 examinations Page 12 of 276 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 Explain the provisions regulating 8.5 Definition of SPT s190 CA 2006; approval by substantial property transactions (SPT) members; voidable; liability to account, s195 and loans to directors CA 2006; exceptions, ss192-194 CA 2006; loans to directors, ss197-214 CA 2006; generally prohibited, s197 CA 2006; exceptions, ss204-209 CA 2006

8.6 Apply an understanding of the long-term 8.6 Application of understanding to a complex and day-to-day management of the scenario company to a given situation

8.7 Critically evaluate a given issue or situation 8.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 9 Understand the principles of 9.1 Analyse the methods by which a 9.1 Alteration of objects; reduction of capital; reconstruction, merger and acquisition reconstruction can be achieved purchase of own shares; variation of shareholder rights; re-registration

9.2 Explain the processes of merger and 9.2 Definitions; private companies: articles; PLC: acquisition offeror sends circular to shareholders; CA 2006 statutory authority to takeover panel; judicial review, eg, Datafin; City Code; directors’ duties in takeover

9.3 Apply an understanding of the principles of 9.3 Application of understanding to a complex reconstructions, mergers and acquisitions scenario to a given situation

9.4 Critically evaluate a given issue or situation 9.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 10 Understand the concepts of insolvency 10.1 Explain the company voluntary 10.1 Definition of insolvency; CVA: IA 1986 as

This specification is for 2012 examinations Page 13 of 276 and liquidation arrangement (CVA) amended IA 2000; process; supervisor; proposal; meetings and approval; failure into administration; success into solvency; schemes of arrangement CA

10.2 Analyse the differences between 10.2 Rescue regime; Enterprise Act 2002 receivership, administrative receivership Schedule B1; administrator appointment; and administration 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 10.3 Creditors’ and members’ voluntary winding up; process; resolutions; statements; appointment of liquidator; effect; priority of creditors; court winding up, s124 IA 1986

10.4 Analyse the avoidance provisions and 10.4 The avoidance of transactions at an potential liability of company officers 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;

This specification is for 2012 examinations Page 14 of 276 defences, eg, Re Duomatic (1969); disqualification, CDDA 1986; the possible liability to account

10.5 Apply an understanding of the concepts of 10.5 Application of understanding to a complex insolvency and liquidation to a given scenario situation

10.6 Critically evaluate a given issue or 10.6 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate

This specification is for 2012 examinations Page 15 of 276

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 This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 16 of 276 Unit 2

Title: Contract Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the general nature of the law 1.1 Define a contract 1.1 A contract is an agreement giving rise to of contract obligations which are enforced or recognised by law

1.2 Explain key characteristics of the nature of 1.2 The social importance of contract; the contract 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 2.1 Explain the law on the fact of agreement 2.1 The law on formation: the requirement of contract agreement; the factual indicators of agreement – offer and acceptance; distinguishing unilateral from bilateral agreements; distinguishing offer from invitation to treat; where offer and acceptance have not been adequate to the task of finding agreement, eg, Clarke v

This specification is for 2012 examinations Page 17 of 276 0 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 Explain the law on how offers are terminated 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 Explain the rules of communication of offer, 2.3 An explanation of the law on acceptance, and revocation 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 Analyse the law on the formation of contract 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 Apply the law on the formation of contract to 2.5 Application of the law to a complex a given situation scenario

2.6 Critically evaluate a given issue or situation 2.6 A reasoned opinion of likely legal to identify probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 18 of 276 3 Understand the rules for determining a 3.1 Explain the law on the intention to create 3.1 An explanation of: the law on intention: the party’s intention to create legal relations legal relations 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 Analyse the law on the intention to create 3 2 Analysis of the meaning and use of legal relations rebuttable presumptions; their application in the context of intention

3.3 Apply the law on the intention to create legal 3.3 Application of the law to a complex scenario relations to a given situation

3.4 Critically evaluate a given issue or situation 3.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 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 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

This specification is for 2012 examinations Page 19 of 276 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 Analyse the law of consideration 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

4.3 Apply the law of consideration to a given 4.3 Application of the law to a complex situation scenario

4.4 Critically evaluate a given issue or situation 4.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 5 Understand the doctrine of privity of 5.1 Explain the law of privity of contract 5.1 An explanation of the law of privity of contract 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 Analyse the law of privity of contract 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 Third Parties) Act 1999; judicial and academic opinion on the doctrine

5.3 Apply the law of privity of contract to a given 5.3 Application of the law to a complex situation scenario

This specification is for 2012 examinations Page 20 of 276 5.4 Critically evaluate a given issue or situation 5.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

6 Understand the law governing terms of 6.1 Explain the law governing terms of contract 6.1 An explanation of: the law governing contract 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 6.2 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

This specification is for 2012 examinations Page 21 of 276 determining the status of terms as conditions, warranties or innominate terms; judicial and academic opinion

6.3 Apply the law governing terms of contract to 6.3 Application of the law to a complex a given situation scenario

6.4 Critically evaluate a given issue or situation 6.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

7 Understand the law governing exemption 7.1 Explain the law on exemption clauses 7.1 An explanation of the law on exemption clauses 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 7.2 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

7.3 Apply the law on exemption clauses to a 7.3 Application of the law to a complex given situation scenario

This specification is for 2012 examinations Page 22 of 276 7.4 Critically evaluate a given issue or situation 7.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

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 8.2 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

This specification is for 2012 examinations Page 23 of 276 8.3 Apply the law of misrepresentation to a given 8.3 Application to a complex scenario situation

8.4 Critically evaluate a given issue or situation 8.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 9 Understand duress and undue influence 9.1 Explain the law of duress 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 Explain the law of undue influence 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 (1993), RBS v Etridge (No 2) (2001)

9.3 Analyse the law of duress 9.3 and 9.4 Comparison and contrast of actions in undue influence and duress; 9.4 Analyse the law of undue influence analysis of the development of both actions; analysis of the nature of fiduciary relationships required in undue influence

9.5 Apply the law of duress to a given situation 9.5 and 9.6 Application to a complex scenario

9.6 Apply the law of undue influence to a given situation

9.7 Critically evaluate a given issue or situation 9.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and

This specification is for 2012 examinations Page 24 of 276 defences, where appropriate 10 Understand the law on illegal contracts 10.1 Explain the principles governing illegality 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 Explain the common law on contracts in 10.2 An explanation of the law on restraint of restraint of trade 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 10.3 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’

10.4 Apply the law on illegal contracts to a given 10.4 Application to a complex scenario situation

10.5 Critically evaluate a given issue or situation 10.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 11 Understand the law on discharge of 11.1 Explain the law on discharge of contract 11.1 An explanation of the law on discharge of contract 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

This specification is for 2012 examinations Page 25 of 276 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 Analyse the law on discharge of contract 11.2 To include analysis of: reasons for ‘strict performance’ requirement in contract; consideration of the meaning of strict performance; evolution of discharge by frustration; the payee rule, the payer rule, and the valuable benefit rule

11.3 Apply the law on discharge of contract to a 11.3 Application to a complex scenario given situation

11.4 Critically evaluate a given issue or situation 11.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 12 Understand remedies for breach of 12.1 Identify remedies available when a contract 12.1 Damages, repudiation, rescission, specific contract has been breached performance, injunction

12.2 Explain the meaning of ‘damages’ 12.2 Monetary compensation

12.3 Explain the purpose of unliquidated 12.3 To place the innocent party in position s/he damages in contract would have been had the contract not been breached: see Robinson v Harman (1848)

12.4 Explain the place of ‘nominal damages’ in 12.4 Claim small (nominal) amount as of right in

This specification is for 2012 examinations Page 26 of 276 contract respect of breach

12.5 Distinguish ‘substantial damages’ from 12.5 Claim reflects the claimants actual losses ‘nominal damages’

12.6 Explain the law on claiming substantial 12.6 The Claimant needs to show (a) the damages 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 Explain heads of damages in contract 12.7 An explanation of: damages for non- pecuniary loss: loss of enjoyment, 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 Explain the remedy of repudiation 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 Explain the remedy of rescission 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,

This specification is for 2012 examinations Page 27 of 276 delay, third party rights are prejudiced, or damages judged a better remedy

12.10 Explain the remedy of specific 12.10 Specific performance: order by court to performance defaulting party to carry out obligations under the contract

12.11 Explain the law on specific performance 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 Explain the remedy of injunction 12.12 Order from the court to carry out a course of action (mandatory) or refrain from doing so (prohibitory)

12.13 Explain the law on the granting of 12.13 Equitable nature of the remedy; what the injunctions claimant must establish in order to obtain an injunction; bars to granting injunction: giving particular emphasis to contracts in restraint of trade

12.14 Analyse remedies 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

12.15 Apply the law on remedies to a given 12.15 Application to a complex scenario situation

12.16 Critically evaluate a given issue or 12.16 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate

This specification is for 2012 examinations Page 28 of 276

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 This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards; specifically, Unit 47 First Line Consumer Legal Advice and Unit 48 Consumer Legal Advice and Casework Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 29 of 276 Unit 3

Title: Criminal Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the fundamental requirements 1.1 Analyse the general nature of the actus 1.1 Features to include: conduct (including of criminal liability reus 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 Analyse the rules of causation 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 Analyse the status of omissions 1.3 Circumstances in which an omission gives rise to liability; validity of the act/omission distinction; rationale for restricting liability for omissions; relevant case law to include: R v Pittwood (1902), R v Instan (1977), R v Miller

This specification is for 2012 examinations Page 30 of 276 (1983), Airedale NHS Trust v Bland (1993) Stone & Dobinson 1977

1.4 Analyse the meaning of intention 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 Analyse the meaning of recklessness 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 Analyse the meaning of negligence as a 1.6 Circumstances in which negligence gives requirement for criminal liability 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 Analyse the factors for determining an 1.7 Presumption of mens rea; reference to offence of strict liability 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 1.8 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

This specification is for 2012 examinations Page 31 of 276 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)

1.9 Apply the law on criminal liability to a given 1.9 Application of the law to a complex scenario situation

1.10 Critically evaluate a given issue or 1.10 A reasoned opinion of likely legal situation to identify probable legal implications, including remedies and implications defences, where appropriate 2 Understand the requirements for liability 2.1 Analyse the actus reus and mens rea 2.1 s39 Criminal Justice Act 1988: nature and for non-fatal offences requirements of assault 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 Analyse the actus reus and mens rea 2.2 s39 Criminal Justice Act 1988: nature and requirements of battery meaning of the offence requirements; relevant case law to include: Fagan v MPC (1969), Collins v Wilcock (1984), DPP v K (1990), Haystead v Chief Constable of Derbyshire (2000)

2.3 Analyse the actus reus and mens rea 2.3 s47 Offences Against the Person Act 1861: requirements of actual bodily harm meaning of “assault”, “occasioning”, “actual

This specification is for 2012 examinations Page 32 of 276 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 Analyse the actus reus and mens rea 2.4 s20 Offences Against the Person Act 1861: requirements of grievous bodily meaning of “maliciously”, “wound”, “inflict”, harm/wounding “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 Analyse the actus reus and mens rea 2.5 Grievous bodily harm with intent/wounding requirements of grievous bodily harm with with intent: s18 Offences Against the Person intent/wounding with intent Act 1861: meaning of “with intent..”; relevant case law to include: R v Purcell (1986)

2.6 Analyse the requirements for the defence 2.6 Requirements: validity (genuineness) of of consent 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 2.7 Application of the law to a complex scenario offences to a given situation

2.8 Critically evaluate a given issue or situation 2.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 33 of 276 3 Understand the requirements for liability 3.1 Analyse the actus reus requirements of 3.1 Requirements common to all forms of for homicide homicide 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 Analyse the mens rea requirements of 3.2 Intention to kill/cause serious injury; analysis murder 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 Analyse the requirements of involuntary 3.3 Reckless manslaughter including the manslaughter 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 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 Analyse the requirements of defences to 3.4 Diminished responsibility: s2 Homicide Act

This specification is for 2012 examinations Page 34 of 276 murder 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

Loss of control: 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)

3.5 Apply the law on liability for homicide to a 3.5 Application of the law to a complex scenario given situation

3.6 Critically evaluate a given issue or 3.6 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and consequences defences, where appropriate 4 Understand the requirements for liability 4.1 Analyse the actus reus and mens rea 4.1 actus reus: s1 Theft Act 1968: meaning and for offences against property requirements of theft 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)

This specification is for 2012 examinations Page 35 of 276 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 Analyse the actus reus and mens rea 4.2 ss9, 10 Theft Act 1968: meaning of the requirements of burglary 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 Analyse the actus reus and mens rea 4.3 s1 Fraud Act 2006: meaning of the requirements of fraud 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 develops)

4.4 Analyse the actus reus and mens rea 4.4 s11 Fraud Act 2006: meaning of the requirements of obtaining services requirements; changes brought by the Act dishonestly including an understanding of the relationship between fraud and theft; relevant case law (as it develops)

4.5 Analyse the actus reus and mens rea 4.5 s1 Criminal Damage Act 1971: meaning of requirements of criminal damage the requirements for the basic offence (s1(1)) and the aggravated offence (1(2));

This specification is for 2012 examinations Page 36 of 276 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 Apply the law on liability for offences 4.6 Application of law to a complex scenario against property to a given situation

4.7 Critically evaluate a given issue or situation 4.7 A reasoned opinion of likely legal to identify probable legal implications implications, including remedies and defences, where appropriate 5 Understand the requirements for liability 5.1 Analyse the actus reus and mens rea 5.1 s1 Criminal Attempts Act 1981: meaning of for inchoate offences requirements of attempt 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 Reference (no 3 of 1992) (1994), R v Shivpuri (1986)

5.2 Analyse the actus reus and mens rea 5.2 s1 Criminal Law Act 1977: meaning of the requirements of conspiracy 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

This specification is for 2012 examinations Page 37 of 276 (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)

5.3 Apply the law on liability for inchoate 5.3 Application of the law to a complex scenario offences to a given situation

5.4 Critically evaluate a given issue or situation 5.4 A reasoned opinion of likely legal to identify probable legal implications implications, including remedies and defences, where appropriate 6 Understand the requirements of the 6.1 Analyse the requirements of the defence of 6.1 M’Naghten’s Case (1843): criteria for the general defences insanity 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 (1957), Bratty v A-G for Northern Ireland (1963), R v Sullivan (1984), R v Burgess (1991)

6.2 Analyse the requirements of the defence of 6.2 Criteria for the defence of (non-insane) automatism 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 Analyse the requirements of the defence of 6.3 Requirements of duress by threats, duress of duress circumstances/necessity; analysis of the development and scope of the forms of the

This specification is for 2012 examinations Page 38 of 276 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 Analyse the requirements of the defence of 6.4 Meaning of intoxication; voluntary intoxication 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 6.5 Meaning of requirement of honest mistake of mistake 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 Analyse the requirements of the defence 6.6 s3 Criminal Law Act 1967 circumstances; based on public or private defence 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

This specification is for 2012 examinations Page 39 of 276 Gladstone Williams (1984), Beckford v R (1988), R v Owino (1995), R v Clegg (1995), R v Martin (2001)

6.7 Apply the law on general defences to a 6.7 Application of the law on general defences to given situation a complex scenario

6.8 Critically evaluate a given issue or situation 6.8 A reasoned opinion of likely legal to identify probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 40 of 276

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 This unit may provide relevant underpinning and relevant national occupational knowledge and understanding towards units of the standards (if appropriate) Legal Advice standards; specifically, Unit 31 Criminal Law Advice and Casework Details of the relationship between the unit Na and other standards or curricula (if appropriate) Assessment requirements specified by a Na sector or regulatory body (if appropriate) Endorsement of the unit by a sector or Na other appropriate body (if required) Location of the unit within the 15.5 Law and Legal Services subject/sector classification Name of the organisation submitting the ILEX (Institute of Legal Executives) unit Availability for use Available to all Awarding Bodies to award credit (shared) Availability for delivery 1 September 2009

This specification is for 2012 examinations Page 41 of 276 Unit 4

Title: Employment Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand key concepts and themes in 1.1 Explain the role of contract in employment 1.1 The role of contract in forming the core of the the development of employment law in law employment relationship; key contractual England and Wales 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 Analyse different kinds of employment 1.2 Employee status; definition: s230 (1) ERA status including difficulties arising from 1996; protected by the key employment standard definitions 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; Worker status; definition: s230(3) ERA 1996;

This specification is for 2012 examinations Page 42 of 276 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 Explain the impact of EU law and the law 1.3 The impact of EU law, especially EU of the European Convention on Human Directives; the effects of directives that Rights on employment law require the UK to bring in national laws to implement: eg, Treaty of Rome art 141 - equal pay for equal work, General

This specification is for 2012 examinations Page 43 of 276 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

1.4 Apply an understanding of the main 1.4 Application of understanding to a complex concepts and themes of employment law scenario in England and Wales to a given situation

1.5 Critically evaluate a given issue or situation 1.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 2 Understand the nature of the contract 2.1 Explain how the contract of employment is 2.1 Eg, Working time (hours & holidays) (Working between employer and employee regulated by statute Time Regs 1998), minimum wage (National Minimum Wage Act 1998), equal pay (Equality Act 2010), notice periods (s86 ERA 1996) 2.2 Identify the employee’s right to be informed 2.2 s1-7 ERA 1996; the provision of a statutory about specified terms of their contract of statement giving employees specified

This specification is for 2012 examinations Page 44 of 276 employment 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 Explain what wages are and when an 2.3 Knowledge of the Employment Rights Act employer can and cannot deduct an 1996 Part Two, s13 to s27; definition of amount from an employee’s wages 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 Explain the legal consequences if an 2.4 Penalties for improper deductions, remedies, employer improperly deducts from wages 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 Explain the current adult and young 2.5 Adult rate for workers aged 21 years and person’s national minimum wage rates and older, 18-20 inclusive, and a youth rate for any penalties for non-compliance workers under the age of 18 who are no longer of compulsory school age; penalties 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

This specification is for 2012 examinations Page 45 of 276 2.6 Explain the basic provisions of the working 2.6 Provisions of the working time regulations 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

2.7 Apply an understanding of the nature of the 2.7 Application of understanding to a complex contract between employee and employer scenario to a given situation

2.8 Critically evaluate a given issue or situation 2.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 3 Understand aspects of employment 3.1 Explain the protection that exists for 3.1 The difference between workers and protection given to different types of workers with regard to less favourable employees (see 1.2 above); definitions of workers treatment in the workplace 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 (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

This specification is for 2012 examinations Page 46 of 276 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 Explain the legal consequences if an 3.2 Remedies, time limits and forums; relevant employer improperly treats such workers provisions of: Fixed-Term Employees less favourably (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

3.3 Apply an understanding of the nature of 3.3 Application of understanding to a complex protection for workers to a given situation scenario

3.4 Critically evaluate a given issue or situation 3.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 4 Understand the protection afforded to 4.1 Analyse the meaning of and issues arising 4.1 S.4 EA 2010 introduces the concept of employees by the Equality Act 2010 from discrimination legislation protected characteristics covering sex, race, disability, religion, sexual orientation and age including direct discrimination s.13, indirect discrimination s.19, harassment s.26 and victimisation s.27 and concerning the liability of employers under s.109 and s.110.

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

This specification is for 2012 examinations Page 47 of 276 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 related absence) can be justified by the employer provided it is a proportionate means of achieving a legitimate aim; s.19 concerns indirect discrimination; s.20 concerns duty to make adjustments and examples of what such adjustments are; s.26 concerns harassment and s.27 concerns victimisation; burden of proof, and limited defences.

4.2 Explain the legal consequences following a 4.2 Enforcement of discrimination legislation breach of discrimination legislation including procedure, questionnaires, time limits and remedies including compensation including injuries to feelings and quantum; effectiveness

4.3 Apply an understanding of the provisions 4.3 Application of understanding to a complex relating to discrimination to a given scenario situation

4.4 Critically evaluate a given issue or situation 4.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 5 Understand the law concerning wrongful 5.1 Explain the key elements of a wrongful 5.1 Key elements of wrongful dismissal: a claim dismissal dismissal 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

5.2 Explain the legal consequences of a 5.2 Wrongful dismissal claims including wrongful dismissal procedure, time limits, remedies and forums; quantum of damages to include loss of

This specification is for 2012 examinations Page 48 of 276 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

5.3 Apply an understanding of wrongful 5.3 Application of understanding to a complex dismissal to a given situation scenario

5.4 Critically evaluate a given issue or situation 5.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 6 Understand the law concerning unfair 6.1 Explain the qualifying requirements for an 6.1 Application of the preliminary qualifying dismissal unfair dismissal claim 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

6.2 Explain the “fairness in all the 6.2 Relationship between potentially fair reasons circumstances” test and “fairness in all the circumstances”; consequences on an unfair dismissal claim if no fair procedure followed: s98(4) ERA 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

6.3 Explain the provisions governing fair 6.3 Understanding of the role of: the ACAS procedure in a dismissal situation 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

This specification is for 2012 examinations Page 49 of 276 replacement by the Employment Act 2008 provisions concerning consequences of failure to follow ACAS code; statutory provisions governing the right to be accompanied

6.4 Explain the legal consequences following 6.4 The forum and remedies available to an an unfair dismissal 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

6.5 Apply an understanding of unfair dismissal 6.5 Application of understanding to a complex protection to a given situation scenario

6.6 Critically evaluate a given issue or situation 6.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 7 Understand the law governing redundancy 7.1 Define redundancy 7.1 Definition: ERA 1996 s139(1); also, Murray and another v Foyle Meats Ltd (1999) ICR 827; mobility clauses: High Table Ltd v Horst and others CA (1998) ICR 409; bumping

7.2 Analyse the elements of a properly 7.2 The contents of a formal redundancy policy implemented redundancy procedure 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

This specification is for 2012 examinations Page 50 of 276 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

7.3 Explain the legal consequences of 7.3 The position following a properly redundancy implemented redundancy: the right to a redundancy payment, ERA 1996 s135; calculation of payment; the position following a poorly implemented redundancy; prima 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

7.4 Apply an understanding of the redundancy 7.4 Application of understanding to a complex provisions to a given situation scenario

7.5 Critically evaluate a given issue or situation 7.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 51 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Employment Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units appropriate) of the Legal Advice standards; specifically, Unit 45 First Line Employment Legal Advice and Unit 46 Employment Legal Advice and Casework Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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 2011

This specification is for 2012 examinations Page 52 of 276 Unit 5

Title: Equity and Trusts

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the role of equity and equitable 1.1 Explain the development of equity and its 1.1 An explanation of its historical development principles in English Law relationship to common law 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 Summarise the maxims and underlying 1.2 The maxims; early principle of conscience principles of equity and modern concept of unconscionability

1.3 Explain the nature of a trust 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 Identify different uses of trusts including 1.4 Family trusts; bare trusts; fixed, modern uses 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 Analyse the main contributions of equity 1.5 Flexibility of equity to adapt to changing times; trust mechanism extended from preserving family wealth to, eg, resolving

This specification is for 2012 examinations Page 53 of 276 disputes over home ownership and to commercial context; protection for mortgagors; remedies where damages inadequate; development of modern injunctions; appreciate importance of these mechanisms

1.6 Apply an understanding of equity and 1.6 Application of understanding to a complex equitable principles to a given situation scenario

1.7 Critically evaluate a given issue or situation 1.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

2 Understand equitable remedies 2.1 Explain the effect of specific performance 2.1 Orders party to contract to carry out term/s; and when it would be appropriate available only if damages inadequate, eg, Cohen v Roche (1927), Sky Petroleum v VIP Petroleum (1974) and other relevant cases

2.2 Analyse the circumstances in which specific 2.2 Refused eg: if no consideration; if order performance is likely to be refused 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 Differentiate between the effect of a 2.3 Prohibitory to restrain an action; mandatory prohibitory and a mandatory injunction 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 2.4 Prohibitory interim: American Cyanamid v of prohibitory and mandatory injunctions at Ethicon (1975) guidelines; circumstances

This specification is for 2012 examinations Page 54 of 276 the interim stage where guidelines not applied or modified; Mandatory interim: Shepherd Homes v Sandham (1971) test

2.5 Explain the effects of search orders and 2.5 A search order requires a defendant to freezing injunctions and the strict principles allow search of premises to secure governing their use 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 Analyse reasons for the stringency of the 2.6 Draconian and described as law's 'nuclear requirements for freezing injunctions and weapons', eg, may affect business and search orders reputation; human rights issues

2.7 Explain the defences relevant to specific 2.7 Lack of clean hands, eg, Coatsworth v performance and injunctions and when they Johnson (1886); real hardship, eg, Patel v might apply Ali (1984); delay and acquiescence, eg, Bulmer v Bollinger (1974), Shaw v Applegate (1977); other relevant cases

2.8 Identify the availability of damages in lieu of 2.8 Awareness that damages may be awarded specific performance or injunction in lieu under Lord Cairns' Act

2.9 Summarise the effect of other equitable 2.9 Other remedies in outline only, eg remedies and the circumstances in which rescission and rectification of contracts, they might be granted account

2.10 Apply an understanding of equitable 2.10 Application of understanding to a complex remedies to a given situation scenario

2.11 Critically evaluate a given issue or situation 2.11 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 55 of 276 3 Understand how trusts, including secret 3.1 Explain the requirement for a trust to 3.1 An explanation of the three certainties: trusts, are deliberately created possess the three certainties of words, intention (words), property and beneficial subject matter and objects 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 Analyse the effects of failure to comply 3.2 No valid trust; donee may take absolutely; may be a resulting trust

3.3 Explain the statutory formality requirements 3.3 Writing required by s53 Law of Property Act in relation to lifetime trusts 1925; exemption of implied trusts, ie, s53(2)

3.4 Differentiate between the lifetime formalities 3.4 s53(1)(b) requirement for declaration of trust for a declaration of trust and a disposition of relating to land; s53(1)(c) requirement for a pre-existing equitable interest disposition of existing equitable interest and 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

This specification is for 2012 examinations Page 56 of 276 of formalities to sub-trusts

3.5 Explain the requirement for title to be 3.5 Completion of gifts and constitution of trusts transferred to the recipient of a gift and the by transfer of title; correct methods for trustee of a trust different types of property; need for transfer to be complete, eg, Milroy v Lord (1862)

3.6 Analyse the effect of failure to transfer title 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 Review the exceptions to the general rule 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 Explain the statutory formality requirements 3.8 Provisions of s9 Wills Act 1837 in outline in relation to gifts or trusts taking effect on death

3.9 Explain the specific requirements for validity 3.9 Exception to s9 Wills Act, ie, created without of secret trusts formality; requirements: communication to secret trustee of trust, terms and property,

This specification is for 2012 examinations Page 57 of 276 acceptance by trustee, reliance, eg Moss v Cooper (1861) and other relevant cases 3.10 Explain different methods of 3.10 Communication of terms by sealed communication envelope as in Re Keen (1937); rules where communication not made to all trustees discussed in Re Stead (1900)

3.11 Compare the rules applying to fully and half 3.11 Communication before death for fully secret secret trusts 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 Analyse the theories used to justify non- 3.12 Fraud theory from Mc Cormick v Grogan compliance with formalities and their (1869); may suggest constructive; outside application in cases 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 Analyse the anomalies and areas of doubt 3.13 Disagreement as to justification; in relation to secret trusts 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 3.14 Application of understanding to a complex (including secret trusts) are created to a situation given situation

3.15 Critically evaluate a given issue or situation 3.15 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and

This specification is for 2012 examinations Page 58 of 276 defences, where appropriate

4 Understand when trusts will be implied by 4.1 Explain the statutory exemption of implied 4.1 Section 53 Law of Property Act 1925; law trusts from formality requirements formalities don't apply to creation of implied, resulting, constructive trusts under s53(2)

4.2 Differentiate between resulting trusts arising 4.2 Purchase money presumed resulting trusts, from a rebuttable presumption ('presumed' eg, Bull v Bull (1955) and/or other resulting trusts) and those arising from a illustrative cases; presumed resulting trust failure to part with the entire equitable on voluntary conveyance; abolition of ownership ('automatic' resulting trusts) presumption of advancement by s199 Equality Act 2009; 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 Summarise the different circumstances in 4.3 Examples in outline only: specifically which a constructive trust might arise enforceable contracts, mutual wills, forfeiture, common intention constructive trust, profits made by fiduciaries; liability of third party recipients; categories not closed

4.4 Explain the use of resulting and constructive 4.4 Resulting trust restricts share to proportion trust principles and proprietary estoppel to of direct contribution at outset, eg, Cowcher resolve disputes over shared homes 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 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

This specification is for 2012 examinations Page 59 of 276 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

4.5 Apply an understanding of implied trusts to 4.5 Application of understanding to a complex a given situation scenario

4.6 Critically evaluate a given issue or situation 4.6 A reasoned opinion of likely legal to predict probable legal implications 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 5.1 Identify purpose trusts 5.1 Charitable (public) purpose trusts; non- trusts charitable (private) purpose trusts within permitted classes; relevance to unincorporated associations

5.2 Summarise the key advantages of 5.2 Awareness of fiscal advantages; enforced charitable status by Attorney General so no need for ascertainable beneficiaries; need not have certainty of objects; exempt from rule against inalienability (ie, excessive duration); availability of cy-près doctrine

5.3 Explain the purposes which the law regards 5.3 Pemsel (1891) classification – four heads of as charitable charity; expanded by Charities Act 2006; charitable purposes as listed in s2; purpose must be wholly and exclusively charitable

This specification is for 2012 examinations Page 60 of 276 5.4 Explain the requirement for benefit to the 5.4 Tangible benefit and sufficient section of public public; Charities Act preserves public benefit requirement; specifies no presumption of benefit; defined by reference to case law before Act

5.5 Analyse the approach to public benefit for 5.5 Applied differently to four Pemsel heads; different types of charitable trusts 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 Explain the rules relating to application of 5.6 An explanation of the cy-près doctrine: money given for a charitable purpose which allows money to be applied to a charitable fails purpose as close as possible to the one intended but which has failed

5.7 Distinguish between situations where the 5.7 Always applies on subsequent failure but cy-près doctrine will and will not apply only applies on initial failure if 'general charitable intention'; difficulty of interpretation and example cases; cy-près if unknown donors

This specification is for 2012 examinations Page 61 of 276

5.8 Explain the principle that a non-charitable 5.8 An explanation of the beneficiary principle; trust must have a beneficiary to enforce it Morice v Bishop of Durham (1804) requires ascertainable beneficiaries in whose favour court can enforce the trust

5.9 Analyse the effect of the beneficiary 5.9 Trusts for abstract purpose (pure purpose principle on private purpose trusts trusts) which don't benefit person/s are void; eg, Re Endacott (1960), Re Astor (1952), Re Shaw (1957)

5.10 Analyse the exceptions to the principle 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 Analyse the decision in Re Denley as a 5.11 An explanation of Re Denley (1969), ie, a further possible exception to the principle 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 Apply the certainty of objects requirement 5.12 Purpose must be clearly defined, eg, Re to purpose trusts Endacott, Re Astor; for Denley trust, purpose must be clearly defined and those who benefit must be identifiable, so clear who can enforce it

5.13 Explain the rule against excessive duration 5.13 Property must not be tied up for a private of purpose trusts 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

This specification is for 2012 examinations Page 62 of 276 Bingle (1876), Re Lipinski (1976); Perpetuities and Accumulations Act 1964 does not apply to purpose trusts

5.14 Explain the problems in relation to gifts to 5.14 Not a legal person so can't own property or an unincorporated association 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 Analyse the different interpretations placed 5.15 May be valid if view as gift to the members; upon gifts to unincorporated associations 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 of different interpretations and whether the present law is satisfactory

5.16 Apply an understanding of the rules 5.16 Application of understanding to a complex relating to purpose trusts to a given scenario situation

5.17 Critically evaluate a given issue or 5.17 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate

This specification is for 2012 examinations Page 63 of 276 6 Understand the role of trustees and the 6.1 Summarise the rules relating to appointment 6.1 Awareness of relevant provisions of Trustee administration of trusts of trustees Act 1925 and Trusts of Land and Appointment of Trustees Act 1996 6.2 Explain how a trustee may retire or be 6.2 An explanation of the circumstances and removed from office procedures; awareness of relevant provisions of Trustee Act 1925 and Trusts of Land and Appointment of Trustees Act 1996

6.3 Explain the duties of a trustee and other 6.3 Fiduciary nature of trustee's position; strict fiduciary not to put himself in a position rules underpinned by no conflict and no where his interest conflicts with his duty and profit principles; eg, self dealing rule, no not to make any profit from his position remuneration, but exceptions, no profits from position and example cases including Boardman v Phipps (1967); extension to other fiduciaries

6.4 Analyse the imposition of a constructive 6.4 Constructive trust, eg, AG for Hong Kong v trust rather than an account of profits Reid (1994), ie, consequential claim for property bought with 'profit', which had risen in value; question of justifiability

6.5 Summarise the exceptions to the no conflict 6.5 Authorisation, eg, in trust instrument or from and no profit rules 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 Analyse the appropriateness of a strict 6.6 A consideration of dissenting views and the application of fiduciary duties criticism of Boardman v Phipps

6.7 Identify the duties of a trustee on 6.7 Must familiarise self with terms and check appointment fund properly invested

6.8 Explain the case law duties of trustees in 6.8 Duty to be even-handed between relation to the beneficiaries and trust beneficiaries; duty of prudence; duty to property invest; balance interests of life and remainder beneficiaries, eg, Nestlé v

This specification is for 2012 examinations Page 64 of 276 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 Summarise the statutory powers and duties 6.9 Trustee Act 2000: s3 general power of of trustees in relation to investment and the investment; s8 investment in legal estate in delegation of investment functions 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 Analyse the adequacy of statutory duties 6.10 If, eg, investment powers too wide, if duties and controls strict enough and if enough accountability where agents appointed

6.11 Explain the powers and duties of trustees 6.11 Trustee Act 1925 s31 discretionary powers in relation to paying out income and capital to use income for maintenance, education to beneficiaries 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 Analyse the scope and appropriateness of 6.12 Meaning of benefit defined in Pilkington v the statutory powers of maintenance and IRC (1964); advancement to resettle; advancement benefit to others; improper payments, eg, Re Pauling's ST (1964); other relevant cases; whether statutory powers wide enough or too wide

This specification is for 2012 examinations Page 65 of 276 6.13 Explain the range of powers for trusts to be 6.13 Rule in Saunders v Vautier (1841); limited varied by beneficiaries or the court powers under Trustee Act 1925 and inherent power; main power in Variation of Trusts Act 1958

6.14 Analyse the extent and appropriateness of 6.14 Categories on behalf of whom court can the powers contained in Variation of Trusts approve variation; requirement for variation Act 1958 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)

6.15 Apply an understanding of the role of 6.15 Application of understanding to a complex trustees and the administration of trusts to scenario a given situation

6.16 Critically evaluate a given issue or situation 6.16 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 7 Understand the remedies available to 7.1 Classify remedies into personal and 7.1 Personal claim requires defendant to meet it beneficiaries for breach of trust proprietary claims and explain the effect of from own funds; won't be met in full if each 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 Distinguish between personal claims 7.2 Trustee liable for breach even if inadvertent; against a trustee and a third party in general third party is personally liable only if aware

7.3 Explain the extent of a personal claim for 7.3 Claim for loss caused by breach according breach of trust against the trustees to Target Holdings v Redferns (1996) plus

This specification is for 2012 examinations Page 66 of 276 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 Explain how liability is shared between the 7.4 Civil Liability (Contribution) Act 1978; trustees indemnity, eg, Re Partington (1887), Head v Gould (1898), Chillingworth v Chambers (1896)

7.5 Explain the defences a trustee might raise 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 1925 and relevant cases; Limitation Act 1980

7.6 Explain when a proprietary claim would be 7.6 Common law in outline only; equitable rules available 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 Explain when a proprietary claim would fail 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

This specification is for 2012 examinations Page 67 of 276 7.8 Analyse the circumstances in which a third 7.8 An explanation of the Diplock personal no party who had received trust property would fault claim for misapplied money from a or should be personally liable to repay an deceased's estate; liability for knowing equivalent sum 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 Explain the basis of liability of a third party 7.9 Accessory liability of person who who assisted in a breach of trust or dishonestly assists a breach of trust; doubts fiduciary duty over meaning of dishonesty: Royal Brunei 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

7.10 Apply an understanding of remedies 7.10 Application of understanding to a complex available to beneficiaries to a given scenario situation

7.11 Critically evaluate a given issue or situation 7.11 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 68 of 276

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 This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 69 of 276 Unit 6

Title: European Union Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the constitutional and political 1.1 Describe the key stages in the history and 1.1 The Schumann plan; expansion from the history of the EU development of the EU 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 Explain the relationship between 1.2 Defusing of potential for war between supranational and intergovernmental participant states; the ‘United States of dimensions of the EU 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 2.1 Describe the structure and functions of the 2.1 Role and function of the European and institutions of the EU institutions Parliament (EP); originally merely a ‘select committee’ with a limited role and no legislative initiative or veto; now having clear

This specification is for 2012 examinations Page 70 of 276 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 Explain the relationship between the 2.2 Original model, like the control of a ministry institutions 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

This specification is for 2012 examinations Page 71 of 276 3 Understand the legislative competences 3.1 Explain the procedures associated with the 3.1 An explanation of the ordinary legislative and processes of the EU co-decision process 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 Outline those procedures associated with 3.2 An outline of Consultation: single reading; relevant legislative processes 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 Analyse the principles of subsidiarity, 3.3 The concepts of exclusive and shared shared and exclusive competence competence; the concept of subsidiarity (Art 5 TEU) and how effect is given to this as a guiding principle

3.4 Apply knowledge of the legislative 3.4 Application of understanding to a complex competences and processes of the EU to a scenario specific legal problem

3.5 Critically evaluate a given issue or situation 3.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 4 Understand the essential principles of the 4.1 Describe the sources of Community law 4.1 Treaties, Regulations, Directives, Decisions, EU legal order binding and non-binding Acts

4.2 Analyse the nature of the supremacy of EU 4.2 The ‘new legal order’: Case 26/62 van Gend law & 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

This specification is for 2012 examinations Page 72 of 276 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 Explain the application of the principle of 4.3 Direct applicability and effect of regulations; direct effect to regulations and directives 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 Analyse the role played by fundamental 4.4 Non-discrimination; human rights; general principles of law in the jurisprudence of the considerations: case law, eg, Case 29/69 European Court of Justice (ECJ) 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

4.5 Apply knowledge of these essential 4.5 Application of understanding to a complex principles of the EU legal order to a scenario

This specification is for 2012 examinations Page 73 of 276 specific legal problem

4.6 Critically evaluate a given issue or situation 4.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 5 Understand the rules relating to venue for 5.1 Explain the policy and principles underlying 5.1 An explanation of the Brussels Regulation litigation and enforcement of claims in the Brussels Regulation and the European (Reg 44/2001) on venue for proceedings and the EU Small Claims Procedure 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

5.2 Apply knowledge of the EU rules for 5.2 Application of understanding to a complex litigation and enforcement of claims to a scenario specific legal problem

5.3 Critically evaluate a given issue or situation 5.3 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 6.1 Explain the nature and scope of 6.1 Rationale for the procedure, ie, the need for 6 Understand the rules relating to the preliminary references under Art 267 an authoritative and consistent approach; application of EU legal principles in TFEU (with particular reference to Art bases of jurisdiction: interpretation of the national legal systems 267.3) 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

This specification is for 2012 examinations Page 74 of 276 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; the plea of illegality under Art 277 TFEU

6.2 Analyse the concepts of acte claire and 6.2 Rationale of acte claire: CILFIT criteria acte éclairé (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 Explain the criteria and procedures for the 6.3 Respective roles of ECJ and national courts; grant of interim relief limitations on national courts powers: eg, Case 314/85 Foto Frost v Hauptzollamt Lübeck-Ost

6.4 Analyse the criteria for the imposition of 6.4 The nature of and rationale for the state liability for non-contractual damages Francovich principle (Case C-6 & 9/90 for non-compliance with EU legal Francovich and Bonifaci v Italy); criteria for obligations application: cases C-46 and 48/93 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

6.5 Apply knowledge of the rules relating to the 6.5 Application of understanding to a complex application of EU legal principles in scenario national legal systems to a specific legal problem

6.6 Critically evaluate a given issue or situation 6.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 75 of 276 7 Understand the rules relating to direct 7.1 Explain the legal basis of the jurisdiction of 7.1 Identify and explain the significance of the actions before the ECJ and Court of First the court under Art 262/264 TFEU distinction between privileged and non- Instance (CFI) 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 Analyse the concepts of direct and 7.2 Nature of direct and individual concern: Case individual concern 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 Analyse the criteria for the imposition of 7.3 Direct liability and vicarious liability, ie, faute liability for non-contractual damages for de service and faute de personne; the non-compliance with EU legal obligations Schöppenstedt formula (Case 5/71 Aktien- under Art 235/288 EC Zuckerfabrik Schöppenstedt v Council); nature of ‘higher order legal norms’

7.4 Explain the different criteria and 7.4 Complaints, non-notification and ‘own motivations for initiating action under Art account investigation’; enforcing Art 4 TEU 258TFEU obligation of states; applicability of the Code of Practice

7.5 Explain the procedures adopted by the 7.5 Initial informal investigation and exchanges Commission under Arts 258 and 260 TFEU 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 Analyse the effectiveness of action by the 7.6 Level of activity; nature of activity; criteria for Commission under Art 258/260 and level of use of Art 258

This specification is for 2012 examinations Page 76 of 276 7.7 Apply knowledge of the rules relating to 7.7 Application of understanding to a complex direct action before the ECJ and ECI to a scenario specific legal problem

7.8 Critically evaluate a given issue or situation 7.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 8 Understand the substantive law relating to 8.1 Explain the concepts of free movement of 8.1 Provisions of Part Three Title I TFEU, ie, the single internal market goods 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 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;

This specification is for 2012 examinations Page 77 of 276 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 Explain the concepts of free movement of 8.2 The concept of a ‘worker’ under Art 45 people 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 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;

This specification is for 2012 examinations Page 78 of 276 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 Explain the extent and nature of the rights 8.3 Principles of equal pay and equal treatment: deriving from EU social policy Art 19 TFEU, Art 157 TFEU, Directives, 86/613, 2000/78, 2004/113, 2006/54; Case 43/75 Defrenne v SABENA

8.4 Apply knowledge of substantive law 8.4 Application of understanding to a complex relating to a single market to a specific scenario legal problem

8.5 Critically evaluate a given issue or situation 8.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 9 Understand the substantive law relating to 9.1 Explain the nature of anti-competitive 9.1 Art 101 TFEU and the qualified prohibition competition behaviour and the policy reasons for its on anti-competitive practices; definitions of prohibition 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

This specification is for 2012 examinations Page 79 of 276 procedures: Regulations 1/2003 and 773/2004

9.2 Explain the concepts of dominant position 9.2 Art 102 TFEU and the absolute prohibition and the economic arguments for on abuse of a dominant position; definitions prohibition of abuse 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

9.3 Apply knowledge of the substantive law 9.3 Application of understanding to a complex relating to competition to a specific legal scenario problem

9.4 Critically evaluate a given issue or situation 9.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 80 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of European Union Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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 2011

This specification is for 2012 examinations Page 81 of 276 Unit 7

Title: Family Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the underlying legal principles 1.1 Identify sources of relevant Family Law 1.1 A clear understanding of the breadth of of marriage including statutes and common law 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 Explain common law definitions of 1.2 Marriage as a legal relationship: ‘Voluntary marriage 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 Analyse the requirements for valid 1.3 Explanation of capacity and formalities in marriage 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 Rights; a summary of the necessity of

This specification is for 2012 examinations Page 82 of 276 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 Explain the importance of the Gender 1.4 Explanation of Gender Recognition Act 2004; 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 Analyse the concept of domicile and foreign 1.5 The importance of the concept of domicile: marriages 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 1.6 Analysis to distinguish obligations and rights marriage conferred by marriage and how these rights

This specification is for 2012 examinations Page 83 of 276 can be lost

1.7 Apply the law on the underlying principles 1.7 Application of the law to a complex scenario of marriage to a given situation

1.8 Critically evaluate a given issue or situation 1.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 2 Understand the underlying legal principles 2.1 Analyse the legal differences between 2.1 An understanding of the rights of partners in of adult partnerships marriage and cohabitation 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 Analyse the main provisions of the Civil 2.2 The purpose and features of CPA 2004, ie, Partnership Act 2004 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 awards on breakdown of civil partnership: s44 Civil Partnership Act 2004; Separation order: s56 Civil Partnership Act 2004; Articles 8, 12 and 14 ECHR.

This specification is for 2012 examinations Page 84 of 276 2.3 Apply the law on the underlying legal 2.3 Application of the law to a complex scenario principles of adult partnerships to a given situation

2.4 Critically evaluate a given issue or situation 2.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 3 Understand the underlying legal principles 3.1 Explain statutory provisions of invalidity 3.1 An explanation of sections 11, 12 and 13 of of nullity in marriage and annulment in marriage 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 Analyse the legal consequences of a void 3.2 An explanation of s11 of MCA 1973 and the marriage 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 Analyse the legal consequences of a 3.3 An explanation of s12 MCA 1973 and the voidable marriage impact of bars under s13 MCA 1973 on the 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,

This specification is for 2012 examinations Page 85 of 276 and effect on wills; S.18A Wills Act 1837, and effects on inheritance; Inheritance (PFD) Act 1975.

3.4 Explain the jurisdiction of the courts in 3.4 An explanation of the requirements for England and Wales when considering jurisdiction; an identification of the petition cases for nullity 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 Explain, in outline, the acceptance of 3.5 Explanation of the requirements set out in foreign decrees of nullity by courts in s46 Family Law Act 1986 recognising that if England and Wales s46 is fulfilled, then it is still possible that the decree may not be recognised as found in s51 Family Law Act 1986

3.6 Apply the law on the underlying legal 3.6 Application of the law to a complex scenario principles of nullity to a given situation

3.7 Critically evaluate a given issue or situation 3.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 4 Understand the underlying legal principles 4.1 Explain the requirements for divorce 4.1 An explanation of divorce law as found in of dissolution of marriage, civil Matrimonial Causes Act 1973; ground for partnership and judicial separation 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 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

This specification is for 2012 examinations Page 86 of 276 Santos (1972)

4.2 Analyse the requirements of a decree 4.2 Analysis of court’s requirements under s1(4) absolute and decree nisi 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 Explain the law on divorce and dissolution 4.3 An explanation of the Divorce (Religious of religious marriages Marriages) Act 2002 identifying why it was introduced, its key provisions and the remedies it provides

4.4 Explain the legal requirements on 4.4 An explanation that Civil Partnership can dissolution of Civil Partnerships 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 Analyse the requirements for judicial 4.5 An explanation that parties to judicial separation 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

This specification is for 2012 examinations Page 87 of 276

4.6 Apply the law on dissolution of marriage, 4.6 Application of the law to a complex scenario civil partnership and judicial separation to a given situation

4.7 Critically evaluate a given issue or situation 4.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 5 Understand statutory provisions for 5.1 Explain statutory provisions for protection 5.1 An explanation of the purpose and protection from violence and molestation from violence 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 Explain rights of occupation and orders 5.2 An explanation of the criteria under s33-38 which can be obtained 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 Analyse those orders available for non- 5.3 Analysis of the importance of s42 Family molestation and protection from violence 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

This specification is for 2012 examinations Page 88 of 276 requirements for order as set out in s3(3) PHA 1997

5.4 Apply the law on protection from violence 5.4 Application of the law to a complex scenario and non-molestation to a given situation

5.5 Critically evaluate a given issue or situation 5.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 6 Understand provisions for family property 6.1 Explain the effects on property rights of a 6.1 An explanation of the property rights of and ownership breakdown of relationships 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 Analyse the impact of express and implied 6.2 An analysis comprising of the following trusts on family property 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

This specification is for 2012 examinations Page 89 of 276 Financial Consequences of Relationship Breakdown; impact of Human Rights Act 1998 Art 8 ECHR

6.3 Analyse acquisition, protection and 6.3 Analysis of definition of home rights under enforcement of home rights in Family Law 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

6.4 Apply the law on provisions for family 6.4 Application of the law to a complex scenario property and ownership to a given situation

6.5 Critically evaluate a given issue or situation 6.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 7 Understand provisions for financial relief 7.1 Explain the financial relief available after 7.1 An explanation of financial provision during and after marriage/civil marriage/civil partnership available after marriage: ancillary relief partnership 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 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 Analyse the factors considered by the court 7.2 Analysis of s25 MCA1973 factors - first in making an ancillary relief order 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

This specification is for 2012 examinations Page 90 of 276 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); Radmacher v Granatino (2011) HOL; 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 Analyse financial relief orders available for 7.3 Analysis of the definition of “child of family” children 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 s25(4) MCA 1973 when making orders against a non- parent

7.4 Explain the powers of the court to vary or 7.4 A brief explanation of the powers to vary and discharge orders of financial relief 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 Identify the impact of Human Rights Act 7.5 The impact of Human Rights Act 1998 1998 on ancillary relief proceedings Articles 6 and 8 ECHR

7.6 Analyse the circumstances for an order of 7.6 Analysis of circumstances when orders may

This specification is for 2012 examinations Page 91 of 276 financial relief during marriage/civil be applied for and granted in the Family partnership 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 Analyse the legal requirements for 7.7 An explanation of the formality requirements maintenance agreements 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

7.8 Apply the law on financial relief to a given 7.8 Application of the law to a complex scenario situation

7.9 Critically evaluate a given issue or situation 7.9 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 8 Understand the legal basis of parental 8.1 Identify the legal basis of parentage in 8.1 Identification of who is the “parent” as a legal responsibility family law 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 Analyse the factors the court will consider 8.2 An explanation of the orders available from in parentage identification cases the court to determine parentage; a

This specification is for 2012 examinations Page 92 of 276 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 Analyse the concept of parental 8.3 Analysis of parental responsibility definition responsibility 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 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 Identify how parental responsibility orders 8.4 Identification of people who will have can be acquired under CA 1989 and ACA parental responsibility automatically and 2002 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

This specification is for 2012 examinations Page 93 of 276 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)

8.5 Apply the law on parental responsibility to 8.5 Application of the law to a complex scenario a given situation

8.6 Critically evaluate a given issue or situation 8.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 9 Understand relevant legal provision in 9.1 Explain the orders available for private 9.1 Principles of S.1 CA 1989; welfare, no order, relation to children matters under the Children Act 1989 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 Analyse the availability of s8 orders under 9.2 Analysis of other proceedings where s8 s8 CA 1989 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

This specification is for 2012 examinations Page 94 of 276 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 Analyse the effects of s8 orders in family 9.3 Analysis to identify effects on parental law 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); 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 Explain the powers of the court in family 9.4 A brief explanation of the orders which can assistance orders 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 Analyse the key legal principles of the 9.5 Analysis of: Paramount principle set out in Children Act 1989 which courts consider in s1(1) CA 1989; Principle of Non-intervention decisions regarding children 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

This specification is for 2012 examinations Page 95 of 276 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 Analyse financial relief available for 9.6 Analysis of financial relief under Sch 1 CA children under the Children’s Act 1989 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); Re H (a Minor) (1990); Re G (2006)

9.7 Apply the law on legal provision in relation 9.7 Application of the law to a complex scenario to children to a given situation

9.8 Critically evaluate a given issue or situation 9.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 96 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Family Law Unit expiry date 31 March 2015 Details of the relationship between the unit This unit may provide relevant and relevant national occupational underpinning knowledge and standards (if appropriate) understanding towards units of the Legal Advice standards; specifically, Unit 63 First Line Family Law Advice and Unit 64 Family Law Advice and Casework Details of the relationship between the unit Na and other standards or curricula (if appropriate) Assessment requirements specified by a Na sector or regulatory body (if appropriate) Endorsement of the unit by a sector or Na other appropriate body (if required) Location of the unit within the 15.5 Law and Legal Services subject/sector classification Name of the organisation submitting the ILEX (Institute of Legal Executives) unit Availability for use Available to all Awarding Bodies to award credit (shared) Availability for delivery 1 September 2009

This specification is for 2012 examinations Page 97 of 276 Unit 8

Title: Immigration Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the framework of immigration 1.1 Identify the sources of immigration law 1.1 In particular, Immigration Act 1971, control in the UK Nationality, Immigration and Asylum Act 2002, Immigration, Asylum and Nationality Act 2006, UK Borders Act 2007 and Borders, Citizenship and Immigration Act 2009; immigration rules in HC 395, Home Office policy documents (IDIs, APIs etc)

1.2 Explain the exclusionary nature of 1.2 Right of abode; concepts of subject to immigration control immigration control, leave to enter and remain; the significance of the common travel area; access to public funds and housing by those seeking to live in the UK; application and nature of immigration rules

1.3 Analyse the operation of immigration 1.3 Legal basis: Immigration Act 1971; control operation of entry clearance, leave to enter, leave to remain; personnel of immigration control; enforcement of immigration control through civil and criminal law including the main offences and civil penalties for employers

This specification is for 2012 examinations Page 98 of 276 1.4 Analyse the role of discretion in 1.4 Discretion to allow entry outside the immigration law rules; key Home Office policies including carers; legitimate expectation; abuse of power

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

1.6 Critically evaluate a given issue or 1.6 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 2 Understand the routes to admission for 2.1 Classify the different routes to employment 2.1 An explanation of the rationale for the the purposes of employment or self- and self-employment Points Based System (PBS) and a clear employment differentiation of the categories within it

2.2 Describe the features of and criteria for the 2.2 Nature of categories within Tier 1 PBS principal categories for entry for (general, entrepreneur, post study work); employment and self-employment 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 Analyse the benefits of different routes for 2.3 Eg, Tier 1 more flexible than Tier 2 for a person who potentially qualifies for the employee by allowing any form of several routes 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

This specification is for 2012 examinations Page 99 of 276 2.4 Explain the rights of family members of 2.4 Right to join principal migrant; rules that economic migrants are applied (eg, maintenance and accommodation); right to work once in UK

2.5 Summarise the stages an economic 2.5 Unified application under PBS; leave to migrant goes through on the road to enter; leave to remain; indefinite leave to settlement remain application fees; knowledge of life in the UK

2.6 Analyse the recent and forthcoming 2.6 Knowledge of life in the UK test; changes to this area of law 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 Apply an understanding of the routes to 2.7 Application of understanding to a admission to a given situation complex scenario

2.8 Critically evaluate a given issue or 2.8 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 3 Understand the rules on the admission of 3.1 Identify the rules for entry, stay and 3.1 Knowledge of HC 395 immigration rules family members settlement for spouses and partners, 277 to 295O, 296 to 316F, 317 to 319 children and other relatives 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

This specification is for 2012 examinations Page 100 of 276 3.2 Explain the application process from visa 3.2 Entry clearance; leave to enter; periods to settlement of leave granted; leave to remain; settlement; fees payable throughout; knowledge of life in UK test

3.3 Analyse the rules for maintenance and 3.3 Understanding of ‘adequate’ being accommodation without recourse to public equivalent to income support; funds 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

3.4 Apply an understanding of the immigration 3.4 Application of understanding to a rules for family members to a given complex scenario situation

3.5 Critically evaluate a given issue or 3.5 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 4 Understand the other key UK immigration 4.1 Identify the categories of entry and stay for 4.1 HC 395 immigration rules 57 to 87F and categories and rules students and their families 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 Explain the rules for the different 4.2 Immigration rules 40 to 56M covering categories of visitor 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

This specification is for 2012 examinations Page 101 of 276 4.3 Explain the rules for returning residents 4.3 Knowledge of rules and policy on returning residents, ie, immigration rules 18 to 20 and Immigration Directorate Instructions chapter 1, section 3 and annexes K, L, N, M, O and P

4.4 Analyse the general grounds for refusal 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

4.5 Apply an understanding of these other key 4.5 Application of understanding to a UK immigration categories and rules to a complex scenario given situation

4.6 Critically evaluate a given issue or 4.6 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 5 Understand modern British nationality 5.1 Identify the different forms of British 5.1 British citizens; British Overseas law nationality Territories Citizens; British Overseas Citizens; British subjects; British Protected Persons

5.2 Differentiate between the different forms of 5.2 Right of abode; adult registration rights; British nationality 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 Explain acquisition of British citizenship by 5.3 Post-British Nationality Act1981 birth and by descent transmission by birth and by descent; definition of father

This specification is for 2012 examinations Page 102 of 276 5.4 Explain acquisition of British nationality by 5.4 Requirements for registration of adults registration (adults and minors) and and minors; criteria for naturalisation; life naturalisation in the UK

5.5 Analyse the application of the provisions 5.5 Circumstances which may lead to on deprivation and renunciation of deprivation of British Citizenship (eg, s40 citizenship and 40A BNA 1981); the process; right of appeal; renunciation and re-acquisition law and process (eg, s12-13 BNA 1981)

5.6 Apply an understanding of modern British 5.6 Application of understanding to a nationality law to a given situation complex scenario

5.7 Critically evaluate a given issue or 5.7 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 6 Understand the law governing the free 6.1 Explain the free movement rights of 6.1 Which countries are members of the movement of persons in the EEA European Economic Area citizens 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 Analyse the free movement rights of third 6.2 Family members; application of country family members 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 Analyse protection against deportation 6.3 Different periods of residence; different under EU free movement law permissible considerations

This specification is for 2012 examinations Page 103 of 276 6.4 Explain the free movement rights of 6.4 Different rights of A8 (2004 new nationals of the Accession States 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 Explain the benefits to Turkish nationals of 6.5 Benefits of Ankara Agreement; freezing the Turkish Association Agreement 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

6.6 Apply an understanding of the law 6.6 Application of understanding to a governing the free movement of persons in complex scenario the EU to a given situation

6.7 Critically evaluate a given issue or 6.7 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 7 Understand the law of refugee status and 7.1 Explain the legal definition of a refugee 7.1 Article 1A(2) of 1951 UN Convention asylum application process 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

This specification is for 2012 examinations Page 104 of 276 7.2 Analyse the requirements of a claim for 7.2 A clear understanding of factors affecting refugee status 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 Analyse the cessation and exclusion 7.3 Circumstances where cessation and/or clauses of the Refugee Convention 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 Explain the process and relevant stages of 7.4 Screening; asylum interview; decision; making a claim for asylum in the UK 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 Analyse the law on third country removals 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

7.6 Apply an understanding of the law of 7.6 Application of understanding to a refugee status and asylum application complex scenario process to a given situation

7.7 Critically evaluate a given issue or 7.7 A reasoned opinion of likely legal

This specification is for 2012 examinations Page 105 of 276 situation to predict probable legal implications, including remedies and implications defences, where appropriate 8 Understand the law of human rights 8.1 Explain the application of human rights law 8.1 An understanding of the European claims for protection and humanitarian in an international protection context Convention on Human Rights and protection 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 Analyse the circumstances where an in- 8.2 A clear understanding of the principles of country Article 8 claim might be successful 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 Explain the regime of humanitarian 8.3 An understanding of EU Qualification protection Directive and definition of ‘serious harm’; indiscriminate violence protection; type of status granted and steps towards settlement; active reviews; family reunion; understand the Temporary Protection Directive and its consequences

This specification is for 2012 examinations Page 106 of 276 8.4 Summarise the discretionary leave policy 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

8.5 Apply an understanding of the law of 8.5 Application of understanding to a human rights claims for protection and complex scenario humanitarian protection to a given situation

8.6 Critically evaluate a given issue or 8.6 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate 9 Understand the law on deportation and 9.1 Describe the law on and process of 9.1 Liability for deportation; exclusion from removal deportation deportation under s7 Immigration Act 1971; different stages of the process

9.2 Compare the differences between 9.2 Presumption in favour of deportation; deportation and removal 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 Analyse the principles behind deportation 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’

9.4 Apply an understanding of the law on 9.4 Application of understanding to a deportation and removal to a given complex scenario situation

9.5 Critically evaluate a given issue or 9.5 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and

This specification is for 2012 examinations Page 107 of 276 implications defences, where appropriate 10 Understand the appeals process and 10.1 Describe the structure of the statutory 10.1 Normal appeal to First-tier Tribunal; other remedies appeals process 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 Explain the key provisions of the appeals 10.2 Lodging appeals; time limits for appeals procedure rules 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 Analyse the nature of the reconsideration 10.3 Test for ordering reconsideration; what process 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 Explain the possible uses of judicial review 10.4 Fresh claims under immigration rule 353; in an immigration and asylum context 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 Analyse the utility of alternative complaint 10.5 Eg: complaints to UK visas, UK Border mechanisms 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 compensation

10.6 Analyse the strengths and weaknesses of 10.6 Mandatory use of B1 form; 3 day listing

This specification is for 2012 examinations Page 108 of 276 a case for bail made through the policy; information needed to apply for immigration bail application process bail; sureties not essential but can be very helpful; what makes a good surety; role of personal recognizance

10.7 Apply an understanding of the appeals 10.7 Application of understanding to a process and other remedies to a given complex scenario situation 10.8 Critically evaluate a given issue or 10.8 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate

This specification is for 2012 examinations Page 109 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Immigration Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 110 of 276 Unit 9

Title: Land Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the legal concepts of real 1.1 Explain how the law categorises real and 1.1 With reference to relevant authority, an property and personal property personal property 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 Explain the concept of relativity of title 1.2 With reference to relevant authority and the relevance of possession Distinguishing between ownership and possession and to apply the law to determine relative rights to property

1.3 Explain what constitutes land and the 1.3 With reference to common law and statutory extent of that land 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 Explain the nature of a freehold estate in 1.4 The nature and definition of a legal freehold land and the rights conferred on its (including the legal fees existing prior to the owner LPA); the prima facie rights of the legal owner, including rights to alienate and to possession

This specification is for 2012 examinations Page 111 of 276 1.5 Apply understanding of the 1.5 Application of understanding to a complex conceptualisation of property and land to scenario a given situation

1.6 Critically evaluate a given issue or 1.6 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 2 Understand the significance of legal and 2.1 Explain the estates and interests in land 2.1 The definition Section 1 LPA of those estates equitable property interests which are recognised by law and equity and interests in land which can exist in law and/or equity

2.2 Explain the remedies prima facie 2.2 Damages at common law and the range of available to a legal owner of property equitable remedies including actions against rights and to an equitable owner of trustees property rights

2.3 Analyse the relationship between legal 2.3 Analysis of the relative advantages and and equitable interests 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

2.4 Apply understanding of legal and 2.4 Application of understanding to a complex equitable property interests to a given scenario situation

2.5 Critically evaluate a given issue or 2.5 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 3 Understand the principal ways in which 3.1 Explain the formalities required for the 3.1 With reference to relevant authority the interests in land can be created expressly express creation of legal interests requirement for legal interests to be created by or by proprietary estoppel deed; the statutory requirements for a deed; limited exceptions to the same (for instance short leases)

3.2 Explain the formalities required for the 3.2 Explanation of the requirement for expressly express creation of equitable interests created or transferred equitable interests to and the exceptions thereto comply with s2 Law of Property

This specification is for 2012 examinations Page 112 of 276 (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 Explain the circumstances in which an 3.3 Explanation of the requirement for a interest in land might arise by proprietary successful claim of proprietary estoppel in estoppel 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 Analyse the law on the application of 3.4 Identifying and explaining the relevant law, these rules 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 Apply the law on the creation of interests 3.5 Application of the law to a complex scenario in land to a given situation

3.6 Critically evaluate a given issue or 3.6 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 4 Understand the ways in which third party 4.1 Explain the law determining whether a 4.1 Definition of equity’s darling (including doctrine rights in both registered and unregistered purchaser of an unregistered estate will of notice); recognition that, prima facie, legal land can be protected take free of third party legal or equitable interests bind the world, but equity’s darling interests (including those interests takes free of equitable interests; the impact of

This specification is for 2012 examinations Page 113 of 276 subject to the Land Charges regime) the Land Charges Act 1972 (LCA); requirements for protection by LCA; consequences of want of protection; overreaching

4.2 Explain the circumstances under which 4.2 Explanation of the relevant provisions of the compulsory or voluntary registration of Land Registration Act 2002 (LRA02); triggers an unregistered estate arises 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 Explain how third party rights affecting a 4.3 Explanation of the relevant provisions of the registered estate can be protected 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 Analyse the doctrinal and policy 4.4 Consideration of the Mirror, Curtain and considerations in relation to the Indemnity principles; whether the registration registered and unregistered systems system complies with the principles; the conflict between the interests of, and perceived need to protect “innocent” third parties and “unknowing” purchasers; the relevance of the perceived distinction between

This specification is for 2012 examinations Page 114 of 276 commercial and family interests

4.5 Apply the law on registered and 4.5 Application of the law to a complex scenario unregistered land to a given situation

4.6 Critically evaluate a given issue or 4.6 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications 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 5.1 Explain the formalities for the creation of 5.1 Explanation with reference to relevant land an express trust of land authority the formality requirements for the creation of an express trust of land, including s53LPA

5.2 Explain how a resulting or a constructive 5.2 Explanation of the equitable rules for the trust can arise 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 Explain the concepts of joint tenancy and 5.3 The unities and the doctrine of survivorship; tenancy in common in relation to a legal the ownership of the legal estate as joint or equitable estate 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 5.4 Explanation of the relevant sections of TLA96; beneficiary of a trust of land conferred by rights to occupy; to be consulted; relevant the Trusts of Land and Appointment of provisions for the resolution of disputes; Trustees Act 1996 (TLA96) including relevant judicial authority interpreting the same

This specification is for 2012 examinations Page 115 of 276 5.5 Analyse the approach of the judiciary to 5.5 Consideration of case law impacting this area, the determination of disputes over the including approaches of the judiciary over time beneficial ownership of land 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

5.6 Apply the law relating to trusts of land to a 5.6 Application of the law to a complex scenario given situation

5.7 Critically evaluate a given issue or 5.7 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 6 Understand the nature of easements and 6.1 Explain the nature of easements and 6.1 Using relevant case law, an explanation of the profits profits criteria used to determine whether a right claimed can amount to an easement or profit; the distinction between them and permissive rights

6.2 Explain the methods by which 6.2 Explanation of the rules for express creation easements can be created expressly and as above with reference to appropriate judicial impliedly 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 6.3 Explanation that an easement may be determined or extinguished determined or extinguished by formal agreement between the dominant and servient tenement owners; unity of seisin; intensification; abandonment, arguably by estoppel

This specification is for 2012 examinations Page 116 of 276 6.4 Analyse the prescription regime against 6.4 Explanation of the rules for establishing an a background of doctrinal and policy easement by long user: basic requirements of considerations 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.

6.5 Apply the law on easements to a given 6.5 Application of the law to a complex scenario situation

6.6 Critically evaluate a given issue or 6.6 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 7 Understand the nature of covenants 7.1 Explain the distinction between 7.1 Based on relevant judicial authority, an affecting a freehold estate restrictive, positive and personal explanation of how the courts classify covenants covenants created in transfers of freehold estates or independently as restrictive, positive or personal

7.2 Explain the formalities required for the 7.2 Recognition of the application of formality creation of covenants affecting freehold requirement to the creation of freehold land covenants

7.3 Explain the rules determining whether a 7.3 An explanation of the rules governing the third party purchaser is bound by, or running of the benefit and burden of freehold benefits from, such a covenant 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 Explain how a covenant affecting 7.4 Agreement between the dominant and servient freehold land may be extinguished or tenement owners (recognising the difficulty of modified identifying the same), unity of seisin, estoppel,

This specification is for 2012 examinations Page 117 of 276 abandonment, the application of s84LPA and judicial approaches to that section

7.5 Analyse the use of covenants against a 7.5 Consideration of: issues of private planning background of doctrinal and policy control, value and user, competing concerns of considerations 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

7.6 Apply the law on covenants to a given 7.6 Application of the law to a complex scenario situation

7.7 Critically evaluate a given issue or 7.7 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 8 Understand the nature of a mortgage 8.1 Define a mortgage 8.1 Explanation of definition in Santley-v-Wilde (1899)

8.2 Explain the formalities for the creation of 8.2 Explanation of the application of formality legal and equitable mortgages requirements to this area of law; the possibility of creation by estoppel; constructive trusts

8.3 Explain the protection afforded to a 8.3 With reference to relevant judicial and mortgagor by equity and by the law statutory authority, the legal and equitable interventions including undue influence; Consumer Credit Act; collateral advantages; fetters on the right to redeem

8.4 Explain the circumstances under which a 8.4 With reference to relevant judicial and mortgagee may enforce the mortgage 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

This specification is for 2012 examinations Page 118 of 276 8.5 Explain the rules determining the priority 8.5 With reference to common law and statutory of multiple mortgages affecting the same rules (in particular the LRA02 and the LCA72), registered or unregistered estate an explanation of the rules for determining the priority of competing interests in both registered and unregistered land

8.6 Analyse the rules for protection of 8.6 Consideration of the role and intervention of mortgagors and for the enforcement of common law, statute and equity; the need to mortgages against a background of balance competing economic and social policy doctrinal and policy considerations considerations; changes in patterns of acquisition of residential land over history

8.7 Apply the law on mortgages to a given 8.7 Application of the law to a complex scenario situation

8.8 Critically evaluate a given issue or 8.8 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 9 Understand the nature of a leasehold 9.1 Define the nature of a leasehold estate 9.1 With reference to relevant judicial and estate 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 substance and the rights of the parties

9.2 Explain the formality requirement for the 9.2 An explanation of the application of general creation of both legal and equitable formality requirements as above: the types of leases leases; periodic tenancies; tenancies at will and at sufferance; exceptions to formality requirements for short leases, periodic tenancies etc

9.3 Explain the circumstances under which 9.3 With reference to common law and statute the benefit or burden of leasehold (particularly the Landlord and Tenant covenants might pass to the purchaser of (Covenants) Act 1995 (LTCA95)), an the reversion or of the leasehold estate explanation of the rules for the running of benefit and burden of leasehold covenants

This specification is for 2012 examinations Page 119 of 276 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 Explain the circumstances in which 9.4 An explanation of the circumstances under leasehold covenants can be enforced which a third party, eg, subtenant or licensee against third parties 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 Explain, in outline only, the nature of a 9.5 An explanation, in outline only, of the nature, commonhold estate 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 disadvantages of each type of estate

9.6 Analyse the law affecting leasehold 9.6 Consideration of definition and identification of estates against a background of doctrinal exclusive possession; the need for rent or and policy considerations 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)

This specification is for 2012 examinations Page 120 of 276 9.7 Apply the law on leasehold estate to a 9.7 Application of the law to a complex scenario given situation

9.8 Critically evaluate a given issue or 9.8 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 10 Understand how a trespasser may 10.1 Explain the basic requirements for a 10.1 Using relevant judicial authority, an become entitled to an estate in land claim of adverse possession 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 Explain the circumstances under which 10.2 An explanation of the relevant provisions of the right to remove a trespasser on the Limitation Act, including exceptions to the unregistered land may become statute usual period of 12 years; extinguishment of barred paper owner’s estate and new state for trespasser subject to certain third party rights; recognition that possession is key

10.3 Explain the circumstances under which 10.3 Knowledge that the LRA02 disapplies LA; an a trespasser on registered land may explanation of the requirement for squatter’s become entitled to be registered as application for registration after no less than proprietor 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 Analyse the law affecting trespassers 10.4 Consideration of issues of underlying policy: against a background of doctrinal and economic sterility verses “theft of land”; the policy considerations impact of Human Rights Act on both regimes; comparison of regimes

10.5 Apply the law on trespass to a given 10.5 Application of the law to a complex scenario

This specification is for 2012 examinations Page 121 of 276 situation

10.6 Critically evaluate a given issue or 10.6 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate

This specification is for 2012 examinations Page 122 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Land Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 123 of 276 Unit 10

Title: Landlord and Tenant Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the key features of leasehold 1.1 Define leasehold property 1.1 Statutory definition: s205(1)(xxvii) Law of property 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 Analyse the essential characteristics of a 1.2 Essential common law characteristics; lease relevant case law: eg, Lace v Chantler (1944), Prudential Assurance Co. Ltd v London Residuary Body (1992); relationship with contract

1.3 Analyse the concept of exclusive 1.3 Nature of exclusive possession including possession 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 Distinguish a lease from a licence 1.4 Significance of the lease/licence distinction; judicial approaches to the lease/licence

This specification is for 2012 examinations Page 124 of 276 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.

1.5 Apply an understanding of the key features 1.5 Application of understanding to a complex of leasehold property to a given situation scenario

1.6 Critically evaluate a given issue of situation 1.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 2 Understand the formal requirements for the 2.1 Classify the types of tenancy recognised by 2.1 Fixed term; Periodic; Leases for lives and creation of a lease English law 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 Determine whether formal legal 2.2 Contracts to grant leases, s2 Law of requirements have been met Property (Miscellaneous Provisions) Act 1989; legal leases, s52 Law of Property Act 1925 and exceptions

2.3 Analyse the status of a lease on a given set 2.3 Contracts to grant leases; legal and of facts 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 of leases in relation to registered and unregistered title

This specification is for 2012 examinations Page 125 of 276 2.4 Apply an understanding of the formal 2.4 Application of understanding to a complex requirements for the creation of a lease to a scenario given situation

2.5 Critically evaluate a given issue of situation 2.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 3 Understand the express covenants of a 3.1 Describe the scope of express covenants 3.1 Commonly encountered types of express lease 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 Analyse the rules governing the regulation 3.2 Qualified covenants against alienation: of qualified covenants 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; Assessment of the effectiveness of qualified covenants; Criticisms eg. suggested abolition by the Law Commission.

3.3 Analyse the rules governing the 3.3 Position at common law; effect of the

This specification is for 2012 examinations Page 126 of 276 enforceability of covenants following Landlord and Tenant (Covenants) Act 1995; assignment or sub-letting indemnities, authorised guarantee agreements

3.4 Apply an understanding of the express 3.4 Application of understanding to a complex covenants of a lease to a given situation scenario, eg, identification of whether there has been a breach of the express obligations of a lease

3.5 Critically evaluate a given issue of situation 3.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 4 Understand the obligations implied in a 4.1 Analyse the obligations implied in a lease by 4.1 Non-derogation from grant and relevant lease common law 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 Analyse the obligations imposed by statute 4.2 Statutory repairing obligations especially in relation to repair 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 (1975), British Telecommunications plc v Sun Life (1995); s11(A) Landlord and Tenant Act 1985; Defective Premises Act 1972

4.3 Determine whether there has been a breach 4.3 An explanation of breach in relation to the of any of the implied obligations implied common law or statutory obligations;

This specification is for 2012 examinations Page 127 of 276 available remedies, eg, damages, set-off, injunctions

4.4 Apply an understanding of the obligations 4.4 Application of understanding to a complex implied in a lease to a given situation scenario

4.5 Critically evaluate a given issue of situation 4.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 5 Understand the obligations and duties 5.1 Explain the extent of any criminal or civil 5.1 An explanation of criminal and civil liability imposed on landlord and tenant in relation liability following an eviction under Protection from Eviction Act 1977; to third parties minimum periods of protection; statutory tort of unlawful eviction

5.2 Analyse the duties owed to lawful visitors 5.2 Occupiers Liability Act 1957: implications for and trespassers 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 Analyse the obligations owed to third parties 5.3 Implications for landlord or tenant; in the tort of nuisance application to landlord and tenant: situations 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

5.4 Apply an understanding of the third party 5.4 Application of understanding to a complex obligations and duties imposed on landlord scenario, eg, identification of whether a and tenant to a given situation landlord or tenant is in breach of any of their

This specification is for 2012 examinations Page 128 of 276 obligations in relation to third parties

5.5 Critically evaluate a given issue of situation 5.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 6 Understand termination and remedies 6.1 Explain the common law methods of 6.1 Effluxion of time; notice to quit; break termination clauses; rescission; surrender; merger; enlargement; disclaimer; relevant case law; the impact of statutory intervention, eg, Housing Act 1988

6.2 Explain how a party terminates a lease at 6.2 Application of the common law rules common law 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 Analyse the remedies available for breach 6.3 Principal remedies available for breach of of covenant or other obligation 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) scheme.

6.4 Apply an understanding of termination and 6.4 Application of understanding to a complex remedies to a given situation scenario

6.5 Critically evaluate a given issue of situation 6.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

7 Understand the operation of the Rent Act 7.1 Identify whether a given tenancy will qualify 7.1 Protected tenancies: qualifying 1977 in relation to residential leases for protection under the Rent Act 1977 requirements and statutory exclusions and relevant case law, eg, Curl v Angelo (1948), Horford Investments v Lambert (1976),

This specification is for 2012 examinations Page 129 of 276 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 Identify the circumstances in which 7.2 Grounds for possession: mandatory and possession will/may be granted 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 Analyse the impact of the Rent Act 1977 7.3 Underlying aims: rent control and security of tenure; criticisms and limitations; impact on lease/license distinction; statutory amendments

7.4 Apply an understanding of the operation of 7.4 Application of understanding to a complex the Rent Act 1977 to a given situation scenario

7.5 Critically evaluate a given issue of situation 7.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

8 Understand the operation of the Housing 8.1 Identify whether a given tenancy will qualify 8.1 Qualifying requirements, statutory Act 1988 in relation to residential leases for protection under the Housing Act 1988 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 Distinguish an assured from an assured 8.2 Creation and notice requirements, eg, s20 shorthold tenancy Housing Act 1988; Housing Act 1996 amendments; grounds for possession; other principle differences, eg, security of tenure, rent review

This specification is for 2012 examinations Page 130 of 276 8.3 Identify the circumstances in which 8.3 Grounds for Possession: mandatory and possession will/may be granted discretionary grounds, ss7, 9 & 89 Housing Act 1988; notice requirements, s8 Housing Act 1988; possession procedures

8.4 Analyse the impact of the Housing Act 1988 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 Explain the scope of legislation relevant to 8.5 Deposit Schemes; relevant safety private sector lettings regulations

8.6 Apply an understanding of the operation of 8.6 Application of understanding to a given the Housing Act 1988 to a given situation scenario

8.7 Critically evaluate a given issue of situation 8.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

9 Understand the regulation of long 9.1 Identify whether a tenancy will qualify as a 9.1 Qualifying requirements under the residential tenancies long residential tenancy Leasehold Reform Act 1967 and the Leasehold Reform, Housing and Urban Development Act 1993

9.2 Explain the security of tenure provisions 9.2 Security of Tenure; grant of new lease; relevant to long residential tenancies possession and grounds; procedure

9.3 Analyse the effect of the enfranchisement 9.3 Enfranchisement rules under the Leasehold and leasehold extension rules Reform Act 1967, Landlord and Tenant Act 1987 and the Leasehold Reform, Housing and Urban Development Act 1993; scope; limitations

9.4 Analyse the principal regulations that 9.4 Regulation of service charges and govern the management of long residential management fees; right to manage;

This specification is for 2012 examinations Page 131 of 276 tenancies provisions of the Commonhold and Leasehold Reform Act 2002; limitations, eg, scope and practical application 9.5 Apply an understanding of the regulation of 9.5 Application of understanding to a given long residential tenancies to a given scenario situation

9.6 Critically evaluate a given issue of situation 9.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

10 Understand the regulation of business 10.1 Identify whether a given tenancy will 10.1 Qualifying requirements under s23, tenancies qualify as a business tenancy 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 Explain the procedures applicable to the 10.2 Continuation, s24 Landlord and Tenant Act continuation, termination and renewal of 1954; statutory and preserved common business tenancies law methods of termination, s27 Landlord and Tenant Act 1954; notice procedures under s25 Landlord and Tenant Act 1954; renewal provisions including agreed tenancies, variation of terms and interim rent

10.3 Identify the circumstances in which a 10.3 Grounds of opposition, s30 para (a)-(f) landlord may resist the grant of a new Landlord and Tenant Act 1954 and tenancy 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 Analyse the statutory regulation of 10.4 Underlying aims; criticisms and limitations; business premises opting out

This specification is for 2012 examinations Page 132 of 276 10.5 Apply an understanding of the regulation of 10.5 Application of understanding to a complex business tenancies to a given situation scenario

10.6 Critically evaluate a given issue of situation 10.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 133 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Landlord and Tenant Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 134 of 276 Unit 11

Title: Planning Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the legal framework relating 1.1 Identify the principal planning legislation, 1.1 Town and Country Planning Act 1990 (TCPA) to land use and development in England both primary and secondary as amended by the Planning and and Wales 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 Explain the main features of the historical 1.2 Early planning controls; Town and Country development of the planning legislation Planning Act 1947 and subsequent developments, eg, the Town and Country Planning Acts of 1968 and 1971

1.3 Describe the central and local 1.3 The role of Secretary of State responsible for administration of the planning system 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 1.4 Relevant articles of European Convention and

This specification is for 2012 examinations Page 135 of 276 Act 1998 (HRA) on planning law 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 Analyse the key challenges facing the 1.5 Streamlining the planning process for legal framework for land use and nationally significant infrastructure projects development in England and Wales (NSIPs); PA 2008 – Infrastructure Planning Commission; national policy statements; categories of NSIPs; development consent orders – procedure and legal effect; enforcement. Proposals for further reform of infrastructure planning. Proposed legislation in the Localism Bill for reforming the planning system.

1.6 Apply an understanding of the legal 1.6 Application of understanding to a complex framework relating to land use and scenario development in England and Wales to a given situation

1.7 Critically evaluate a given issue or 1.7 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 2 Understand the system of development 2.1 Explain the system of development plans 2.1 An explanation of the elements of the system; plans that preceded the Planning and Local, Structure and Unitary Development Compulsory Purchase Act 2004 (PCPA) Plans (UDPs); transitional arrangements

2.2 Explain the system of development plans 2.2 The objective of sustainable development; that followed the PCPA 2004 regional planning; ie, the Regional Spatial Strategy (RSS): form and content and procedures for revision; change from RSS to Regional Strategies (RS) and proposals for abolition of regional planning; local development planning; ie, the Local Development Framework (LDF) and constituent planning documents; procedures for preparation of Development Plan

This specification is for 2012 examinations Page 136 of 276 Documents (DPDs); development plans in Wales and Greater London; role of Strategic Environmental Assessment (SEA). Proposals for reform

2.3 Apply an understanding of development 2.3 Application of understanding to a complex plans to a given situation scenario

2.4 Critically evaluate a given issue or 2.4 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 3 Understand the legal meaning of 3.1 Explain the law relating to operational 3.1 The definition of development in s55 TCPA; development development 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 Explain the law relating to material 3.2 The definition of development in s55 TCPA; change of use 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

This specification is for 2012 examinations Page 137 of 276 (1983)

3.3 Apply an understanding of the relevant 3.3 Application of understanding to a complex law to a given situation scenario; eg, analysis of the nature of development and need for planning permission in application to a scenario

3.4 Critically evaluate a given issue or 3.4 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 4 Understand the law relating to the 4.1 Explain the concept of permitted 4.1 General Permitted Development Order 1995 obtaining of consent for development development and deemed planning (GPDO); Special Development Orders permission (SDOs); Local Development Orders (LDOs); deemed planning permission; Enterprise Zones (EZs) and Simplified Planning Zones (SPZs); Article 4 directions

4.2 Describe the legal principles relating to 4.2 Types of planning application; form and express planning applications content of planning applications, and design and access statements; General Development Procedure Order 1995 (GDPO); change to Development Management Procedure Order 2010 (DMPO); 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 Identify the legal principles relating to 4.3 The need for EIA, ie Schedule 1 and 2 Environmental Impact Assessment (EIA) 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)

This specification is for 2012 examinations Page 138 of 276 4.4 Explain the legal principles relating to the 4.4 The status of the development plan; “material determination of planning applications 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 Explain the role of planning obligations in 4.5 Old planning agreements; planning obligations development control 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; proposals for reform of CIL; 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 Explain the principles relating to planning 4.6 Appeals to the Secretary of State under s78 appeals, applications to the High Court TCPA against planning decisions; types of and judicial review planning appeal; transferred and non- transferred cases; inquiry procedure and written representations procedure; costs; appeals under s288 TCPA; applications for judicial review; procedures, standing and

This specification is for 2012 examinations Page 139 of 276 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 Describe the principles relating to the 4.7 Revocation and modification orders; revocation and modification of planning discontinuance orders; rights to permission compensation; relevant case law: eg, Pennine Raceway Ltd v Kirklees (1983); Canterbury CC v Colley (1993); Alnwick DC v SSETR (2000)

4.8 Apply the law relating to the obtaining of 4.8 Application of the law to a complex scenario consent for development to a given situation

4.9 Critically evaluate a given issue or 4.9 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 5 Understand the law relating to the 5.1 Explain the legal principles relating to 5.1 Enforcement notices; time limits; service and enforcement of development control enforcement notices 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 Bromley (1972); Miller-Mead v MHLG (1963); R v Greenwich LBC, ex p Patel (1935); R v Tower Hamlets LBC, ex p Ahearn (1989);

This specification is for 2012 examinations Page 140 of 276 Nelsovil v MHLG (1962) R v Wicks (1998); S Buckinghamshire DC v Porter (2003)

5.2 Describe the principles relating to 5.2 Certificates of Lawfulness of Existing Use or certificates of lawfulness 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)

5.3 Apply the law relating to the 5.3 Application of the law to a complex scenario enforcement of development control to a given situation

5.4 Critically evaluate a given issue or 5.4 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate

6 Understand the law relating to historic 6.1 Explain the law relating to buildings listed 6.1 The statutory list; the role of English Heritage; buildings and areas as being of special architectural or definition of a listed building; Building historic interest 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 Describe the legal provisions relating to 6.2 Designation of conservation areas; legal conservation areas consequences of designation; enforcement in conservation areas; relevant case law: eg, R v Canterbury CC, ex p Halford (1992); S Lakeland DC v SSE (1992)

This specification is for 2012 examinations Page 141 of 276 6.3 Explain the law relating to ancient 6.3 Protection under the Ancient Monuments and monuments and areas of archaeological Archaeological Areas Act 1979; scheduled importance monuments; ancient monuments; archaeological research facilities; protection under planning control

6.4 Apply the law relating to historic buildings 6.4 Application of the law to a complex scenario and areas to a given situation

6.5 Critically evaluate a given issue or 6.5 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 7 Understand the principles relating to 7.1 Explain the law relating to nature 7.1 National parks; Sites of Special Scientific special planning controls and special conservation and landscape protection Interest (SSSIs); Areas of Outstanding Natural cases Beauty (AONBs); Conservation (natural habitats, etc) Regulations 1994; change to Conservation of Habitats and Species Regulations 2010; green belts

7.2 Explain the law relating to the protection 7.2 Tree preservation orders (TPOs); TPO of trees and hedgerows 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 Explain the legal principles relating to the 7.3 The advertisement regulations 2007; principles control of outdoor advertising 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 v Derbyshire CC (2005)

7.4 Explain the law relating to the control of 7.4 Caravan Sites and Control of Development Act caravan sites 1960; definition of “caravan”; requirement for

This specification is for 2012 examinations Page 142 of 276 and issue of site licence; conditions

7.5 Explain the position of Crown land under 7.5 Meaning of Crown land; abolition of Crown the planning legislation immunity under PCPA; special procedures and exceptional cases

7.6 Describe the position regarding 7.6 Rules relating to the obtaining of planning development by LPAs 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 Explain the provisions under planning 7.7 Specific provisions relating to mineral law regarding mineral and waste development; Interim Development Order development permissions (IDOs); review of minerals permissions; EIA; National Waste Strategy; waste and development plans

7.8 Apply the law relating to special planning 7.8 Application of the law to a complex scenario controls and special cases to a given situation

7.9 Critically evaluate a given issue or 7.9 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate

8 Understand the powers relating to land 8.1 Explain the principles relating to 8.1 Compulsory purchase for planning purposes acquisition in planning law compulsory purchase for planning under TCPA, s226; powers of acquisition; purposes procedures under the Acquisition of Land Act 1981 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, Alliance Spring Co Ltd v First SS (2005); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton CC (2010)

This specification is for 2012 examinations Page 143 of 276 8.2 Describe the role of inverse compulsory 8.2 Land incapable of reasonably beneficial use: purchase in the planning legislation, ie purchase notices; planning blight: blight purchase and blight notices 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)

8.3 Apply the law relating to land acquisition 8.3 Application of the law to a complex scenario to a given situation

8.4 Critically evaluate a given issue or 8.4 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate

This specification is for 2012 examinations Page 144 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Planning Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 145 of 276 Unit 12

Title: Public Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the key features of UK public 1.1 Explain the sources of public law and 1.1 The elements which typically constitute UK law their interrelationship 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 Analyse the impact on UK public law of 1.2 The institutions of the EU and their functions; the law of the European Union 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 Analyse the impact of international law 1.3 Key sources of international law in domestic on UK public law 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; and (b) the principle of no direct effect; refer to Lord Bingham’s Hamlyn Lectures 2009: Widening Horizons

This specification is for 2012 examinations Page 146 of 276 1.4 Apply an understanding of the key 1.4 Application of understanding to a complex features of UK public law to a given scenario situation

1.5 Critically evaluate a given issue or 1.5 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate

2 Understand the meaning of “the rule of 2.1 Explain the key elements which make up 2.1 The exposition of Dicey on the rule of law in law” the rule of law in the UK 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, The Christina (1934)

This specification is for 2012 examinations Page 147 of 276 2.2 Analyse the factors which have the 2.2 The factors include: pressure from the potential to undermine the rule of law in Executive: eg, adverse government reaction the United Kingdom 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 and Binyam Mohammed v Secretary of State for Foreign and Commonwealth Affairs (2010); civil unrest: eg, industrial disputes such as the miners’ strike in 1984 and civil disobedience eg, resistance to the Poll Tax

2.3 Apply an understanding of the elements 2.3 Application of understanding to a complex constituting the rule of law to a given scenario situation

2.4 Critically evaluate a given issue or 2.4 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 3 Understand the nature of the UK 3.1 Analyse the sources of the constitution 3.1 The main sources: statutes defined as constitution “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 Analyse the consequences of 3.2 Consideration of the principal powers of the constitutional changes effected by Scottish Parliament; analysis of the relationship devolution 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

This specification is for 2012 examinations Page 148 of 276 with England; the principal powers of the Welsh Assembly; the state of devolution in Northern Ireland; the proposals for devolution in England

3.3 Explain the organisation, functions and 3.3 Explanation of the organisation of the courts powers of the Judiciary systems in Britain; the procedure for the appointment and dismissal of judges; the role of the new Supreme Court

3.4 Analyse the composition and function of 3.4 Consideration of the composition of the the Executive 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; Ministerial Code

3.5 Analyse the composition, functions and 3.5 A summary of the nature of Parliamentary powers of Parliament 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 case law: eg, R (Jackson) v Attorney General

This specification is for 2012 examinations Page 149 of 276 (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 and the penalties for non-compliance, eg, Watkins v Woolas (2010); parliamentary privilege and MPs’ expenses as in eg, Regina v Chaytor (2010)

3.6 Analyse the status, powers and 3.6 The classification of “Next Steps” executive composition of the different classes of agencies established after the Ibbs Report executive agencies and Non- Improving Management in Government: The Departmental Public Bodies (NDPBs) 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 Explain the powers, organisation and 3.7 A knowledge of the sources of the powers of functions of local authorities 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 arrangements for their

This specification is for 2012 examinations Page 150 of 276 regulation; the arrangements for elections for local authorities

3.8 Explain the powers, organisation and 3.8 A knowledge of the sources of the powers of functions of police authorities police authorities; appointment of members; their finance and controls on expenditure

3.9 Explain the statutory and common law 3.9 An explanation of the main provisions of The rules governing corruption Corruption Acts 1889 -1916; the common law on misfeasance in public office, eg, Karagaozlu v Commissioner of Police of the Metropolis (2007); Bribery Act 2010

3.10 Apply an understanding of the nature of 3.10 Application of understanding to a complex the UK constitution to a given situation scenario

3.11 Critically evaluate a given issue or 3.11 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 4 Understand the citizen’s civil liberties and 4.1 Analyse the liberties enshrined in statute 4.1 The key provisions of the Human Rights Act human rights and the residual liberties at common law 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 Explain how the UK courts deal with 4.2 HRA98 s4(2) and (4(6); eg, Gaidan v Godin- issues of incompatibility between UK Mendoza (2004) on the approach of the legislation and the provisions of the courts, including the European Court of ECHR Human Rights, to incompatibility

4.3 Summarise the jurisdiction and powers of 4.3 Procedures for the citizen to access the the European Court of Human Rights ECtHR; powers of the ECtHR (ECtHR)

4.4 Analyse the effectiveness of the statutory 4.4 Common law provisions, eg, Regina v Shayler and common law provisions for (2002); the provisions of Article 10 of the guaranteeing freedom of expression ECHR; eg, Reynolds v Times Newspapers Ltd (1999) and Jameel (Mohammed) v Wall Street

This specification is for 2012 examinations Page 151 of 276 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 Analyse the statutory and common law 4.5 The Habeas Corpus Acts 1640-1862; the provisions for both ensuring and curtailing common law on habeas corpus, eg, R v the freedom of the citizen 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 Analyse the effectiveness of the statutory 4.6 Relevant statutes: the main provisions relating and common law provisions governing to assemblies and processions: eg, Austin v freedom of assembly and public order Commissioner of the Police of the Metropolis (2009) HL and the Public Order Act 1986 (POA86); other public order offences under the POA86 (as amended); the Criminal Justice and Police Act 2001, and the Serious Organised Crime and Police Act 2005,

This specification is for 2012 examinations Page 152 of 276 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 Analyse the impact of the provisions of 4.7 The effect of this legislation on curtailing the the anti-terrorist legislation passed since freedom of the citizen as in, eg, Part V 1999 on the freedom of the individual 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

4.8 Apply an understanding of the citizen’s 4.8 Application of understanding to a complex civil liberties and human rights to a given scenario situation

4.9 Critically evaluate a given issue or 4.9 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate 5 Understand the way in which 5.1 Explain the various means by which the 5.1 Understanding the key elements of judicial administrative acts and omissions are actions of public bodies can be reviewed review; the powers of tribunals and the terms supervised and controlled and controlled 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 5.2 The provisions of Part 54 Civil Procedure of the High Court in relation to judicial Rules; the law in relation to locus standi for review applicants as in, eg, R v Secretary of State for

This specification is for 2012 examinations Page 153 of 276 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, R v North and East Devon Health Authority ex parte Coughlan (2001) and R (Niazi) v Secretary of state for the Home Department (2008)

5.3 Explain the jurisdiction, role and powers 5.3 The powers of tribunals; supervision of of tribunals 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; the work of the Administrative Justice and Tribunals Council; the strengths and weaknesses of the 2007 Act

This specification is for 2012 examinations Page 154 of 276 5.4 Explain the statutory procedures for 5.4 Key provisions only of the Inquiries Act 2005 convening, holding and reporting public and the Enquiries Rules 2006 enquiries

5.5 Analyse the effectiveness of judicial 5.5 Judicial review: cost of judicial review; review, tribunals, public enquiries and limitation of judicial review remedies (less ombudsmen as vehicles for providing generous than civil law); ombudsmen: redress for the citizen. 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

5.6 Apply an understanding of the way in 5.6 Application of understanding to a complex which administrative acts and omissions scenario are supervised and controlled to a given situation

5.7 Critically evaluate a given issue or 5.7 A reasoned opinion of likely legal implications, situation to predict probable legal including remedies and defences, where implications appropriate

This specification is for 2012 examinations Page 155 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Public Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 156 of 276 Unit 13

Title: Law of Tort

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the general principles of 1.1 Define ‘tort’ 1.1 Civil Wrong, arising from a breach of duty, tortious liability fixed by law, generally giving rise to compensation by way of an action for unliquidated damages

1.2 Explain the characteristics of tort 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 2.1 Explain the objectives of the law of tort 2.1 Compensation, deterrence, justice, tort 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 Analyse the effectiveness of the law of tort 2.2 Assessing effectiveness; efficiency and in achieving its objectives effectiveness of tort as compensation scheme: comparison with other models, including private insurance, social security

This specification is for 2012 examinations Page 157 of 276 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 3.1 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 Explain the law of tort in Wilkinson v 3.2 Definition of tort: ‘The defendant has wilfully Downton 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 Explain the law of trespass to land 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 3.4 Definition of tort: trespass to goods is a wrongful physical interference with them; identification and explanation of the law of

This specification is for 2012 examinations Page 158 of 276 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 Analyse the law of trespass and the tort in 3.5 Analysis of the law of trespass to the person, Wilkinson v Downton 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)

3.6 Apply the law of trespass and the tort in 3.6 Application of the law to a complex scenario Wilkinson v Downton to a given situation

3.7 Critically evaluate a given issue or situation 3.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

4 Understand the law of negligence 4.1 Explain negligence 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 Explain the evolution of the requirement of 4.2 Established categories of duty of care to; test duty of care of proximity: Heaven v Pender (1883), test for proximity: Donoghue v Stevenson (1932), per Lord Atkin; foreseeability, proximity, fair and reasonable: Caparo v Dickman (1990)

4.3 Explain the law in those areas in which 4.3 Meaning of public policy: consideration by

This specification is for 2012 examinations Page 159 of 276 public policy plays a significant role in the court of whether a duty of care should determining the existence of duty of care 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 Explain the law on breach of duty of care 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

4.5 Explain the legal tests for causation in fact 4.5 Identification and explanation of the law; 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), Barker v Corus UK (2006), s3 Compensation Act 2006

4.6 Explain the law on breaks in the ‘chain of 4.6 Identification and explanation of the law; causation’ understanding of relevant case law: Nova

This specification is for 2012 examinations Page 160 of 276 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)

4.7 Explain the law on remoteness of damage 4.7 Identification and explanation of the law; (causation in law) in negligence 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)

4.8 Explain the doctrine of ‘take your victim as 4.8 Identification and explanation of the law; you find him’ understanding of relevant case law: eg, Smith v Leech Brain & Co Ltd (1961), Robinson v Post Office (1974)

4.9 Explain the law governing proof of 4.9 Identification and explanation of the law; negligence 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 Analyse the law of negligence 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 4.11 Application of the law to a complex scenario situation

4.12 Critically evaluate a given issue or 4.12 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate

This specification is for 2012 examinations Page 161 of 276 5 Understand the law of tort relating to 5.1 Explain the law on the employer’s personal 5.1 Identification and explanation of the law; employers’ liability liability to the employee in negligence 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)

5.2 Explain the law of vicarious liability 5.2 Identification and explanation of the law; 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 Analyse the common law on employer’s 5.3 An analysis of the common law governing liability employers’ liability to employees and vicarious liability

5.4 Apply the common law governing the 5.4 Application of the law to a complex scenario liability of employers to a given situation

5.5 Critically evaluate a given issue or situation 5.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 6 Understand the law of tort relating to 6.1 Explain the law under the Occupiers’ 6.1 Area of tort governed by the Acts: liability liability for premises Liability Acts of 1957 and 1984 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

This specification is for 2012 examinations Page 162 of 276 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 Analyse the law under the Occupiers’ 6.2 Analysis of the law under the relevant acts: Liability Acts 1957 and 1984 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

6.3 Apply the Occupiers’ Liability Acts 1957 and 6.3 Application of the law to a complex scenario 1984 and relevant case law to a given situation

6.4 Critically evaluate a given issue or situation 6.4 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 7 Understand the law of nuisance 7.1 Explain the law of private nuisance 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

This specification is for 2012 examinations Page 163 of 276 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 Explain the law of public nuisance 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 Explain the law of the tort in Rylands v 7.3 Definition of the tort in Rylands v Fletcher: 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 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 Analyse the law of nuisance (including the 7.4 To include: distinguishing public nuisance, tort in Rylands v Fletcher) private nuisance, and the tort in Rylands v Fletcher; the interests protected; the nature

This specification is for 2012 examinations Page 164 of 276 of the harm; the parties; remedies; the effectiveness of the action 7.5 Apply the law of nuisance (including Rylands v Fletcher) to a given situation 7.5 Application of the law to a complex scenario

7.6 Critically evaluate a given issue or situation to predict probable legal implications 7.6 A reasoned opinion of likely legal implications, including remedies and defences, where appropriate 8 Understand the law of defamation 8.1 Define the tort of defamation 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 Distinguish libel from slander 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 as an exception: imputation of crime, infectious disease, s1 Slander of Women Act 1891, disparaging person in office trade or profession

8.3 Explain the law of defamation 8.3 Identification and explanation of the law; 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 –

This specification is for 2012 examinations Page 165 of 276 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 Analyse the law of defamation 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)

8.5 Apply the law of defamation to a given 8.5 Application of the law to a complex scenario situation

8.6 Critically evaluate a given issue or situation 8.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 9 Understand general defences 9.1 Explain the role of complete and partial 9.1 Complete defences defeat the action of the defences claimant, partial defences act to reduce damages 9.2 Identification and explanation of the 9.2 Explain the defence of volenti non fit injuria law showing understanding of relevant (Consent) 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

9.3 Explain the defence of ex turpi causa non 9.3 Identification and explanation of the law oritur action (No cause of action arises showing understanding of relevant case law: from an immoral/illegal cause) victim of tort who is in course of committing a

crime may have claim disallowed by the

court, eg, Ashton v Turner (1981); limitations This specification is for 2012 examinations Page 166 of 276 of defence 9.4 Explain the defence of contributory 9.4 Identification and explanation of the law negligence 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 Analyse general defences in tort 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

9.6 Apply the law of general defences to a 9.6 Application of the law to a complex scenario given situation

9.7 Critically evaluate a given issue or situation 9.7 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 10 Understand remedies in tort 10.1 Explain the classification of remedies 10.1 Judicial remedies: damages, injunction; non-judicial remedies: self-help, abatement etc

10.2 Explain the meaning of damages 10.2 Monetary compensation

10.3 Explain the purpose of damages in tort 10.3 To place the claimant in the position s/he would have been had the tort not been committed

10.4 Explain damages for personal injury 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

This specification is for 2012 examinations Page 167 of 276 10.5 Explain non-compensatory damages 10.5 Nominal, Contemptuous and Exemplary damages; relevant case law

10.6 Explain injunctions 10.6 Mandatory and prohibitory injunctions; injunctions at trial and interlocutary injunctions: American Cyanamid v Ethicon (1975)

10.7 Explain the implications for damages of 10.7 Survival of deceased's right of action: Law the death of the claimant Reform (Miscellaneous Provisions) Act 1934; claims for financial loss and bereavement: Fatal Accidents Act 1976, Administration of Justice Act 1982

10.8 Analyse the law on remedies 10.8 Analysis to include nature of assessment of damages, particularly in case of personal injury and death; giving monetary values to injury and trauma; predicting levels of compensation etc

10.9 Apply the law on remedies to a given 10.9 Application of the law to a complex scenario situation

10.10 Critically evaluate a given issue or 10.10 A reasoned opinion of likely legal situation to predict probable legal implications, including remedies and implications defences, where appropriate

This specification is for 2012 examinations Page 168 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of the Law of Tort Unit expiry date 31 March 2015 Details of the relationship between the unit This unit may provide relevant and relevant national occupational underpinning knowledge and standards (if appropriate) understanding towards units of the Legal Advice standards; specifically, Unit 44 Personal Injury Legal Advice and Casework Details of the relationship between the unit Na and other standards or curricula (if appropriate) Assessment requirements specified by a Na sector or regulatory body (if appropriate) Endorsement of the unit by a sector or Na other appropriate body (if required) Location of the unit within the 15.5 Law and Legal Services subject/sector classification Name of the organisation submitting the ILEX (Institute of Legal Executives) unit Availability for use Available to all Awarding Bodies to award credit (shared) Availability for delivery 1 September 2009

This specification is for 2012 examinations Page 169 of 276

Unit 14

Title: Law of Wills and Succession

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the formal requirements for 1.1 Define the statutory rules relating to the 1.1 Clear and accurate understanding of s9 making a valid will or codicil formal requirements to make a will Wills Act (WA)1837 as substituted by s17 Administration of Justice Act (AJA)1982

1.2 Analyse how these statutory rules have been 1.2 To be considered “in writing”, use of applied through case law 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’

This specification is for 2012 examinations Page 170 of 276 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 Compare the exceptions to these formal 1.3 Form of privileged wills; intention to take requirements 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 Apply an understanding of the formal 1.4 Application of the requirements to a requirements to make a valid will to a given complex scenario situation

1.5 Critically evaluate a given issue or situation to 1.5 A reasoned opinion of likely legal predict probable legal implications implications, including remedies and defences, where appropriate 2 Understand the rules relating to capacity 2.1 Explain the rules relating to mental capacity 2.1 Consideration of age; mental state of T to make a valid will or codicil to make a will and testamentary capacity, the rule in Banks v Goodfellow (1870) and the three stage test; Mental Capacity Act 2005

This specification is for 2012 examinations Page 171 of 276 2.2 Analyse how these rules have been applied 2.2 Relevant case law, eg, Battan Singh v through case law and the effect of failure to Amirchand (1948), Ewing v Bennet (2001), comply with these rules 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 Explain the rules relating to knowledge and 2.3 Rebuttable presumption of knowledge and approval of the contents of a will 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 Analyse the effect of failure to comply with 2.4 Mistake as to whole or part of will, limit of these rules 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 Explain the meaning of force, fear, fraud and 2.5 The meaning of force or fear; burden of undue influence proof and lack of presumptions; meaning of fraud and examples through relevant cases; meaning of undue influence and the distinction between persuasion and

This specification is for 2012 examinations Page 172 of 276 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 Analyse the effect these may have on the 2.6 The effect is refusal of probate as not validity of a will considered act of T; may be of whole will or in part (eg failure of legacy) depending on extent of influence

2.7 Apply an understanding of the rules relating 2.7 Application of the rules to a complex to capacity to a given situation scenario

2.8 Critically evaluate a given issue or situation to 2.8 A reasoned opinion of likely legal predict probable legal implications implications, including remedies and defences, where appropriate 3 Understand the legal principles relating to 3.1 Explain the effect of various types of 3.1 Specific legacies, approach of courts in legacies and devises legacies and devises 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 Analyse the rules which govern the way in 3.2 Ademption, changes in substance, contrast which different types of legacies and devises cases such as Clifford (1912) and Slater fail both at common law and by statutory (1907), effect of republication, the doctrine rules of conversion, options to purchase, the rule in Lawes v Bennett (1785), lapse, effect where gift is to joint tenants/tenants in common/members of a class,

This specification is for 2012 examinations Page 173 of 276 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 Explain the incidence of pecuniary legacies 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

3.4 Apply an understanding of the principles 3.4 Application of understanding to a complex relating to legacies and devises to a given scenario situation

3.5 Critically evaluate a given issue or situation 3.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 4 Understand the way in which a will can be 4.1 Analyse how the rules relating to revocation 4.1 Provisions in s20 WA 1837; definition of revoked by destruction have been applied through “burning tearing or otherwise destroying”; case law relevant case law, eg, Cheese v Lovejoy (1877), Adams (1990), Hobbs v Knight (1838), Everest (1975); incomplete intended destruction as in Perkes (1820); consideration of intention, accidental

This specification is for 2012 examinations Page 174 of 276 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 Explain the rules relating to wills which apply 4.2 s18 WA 1837, exceptions on expectation following marriage or civil partnership, of marriage and rules relating to this; effect divorce or dissolution of divorce or dissolution, s18A WA 1837, Sinclair (1985) and the Law Reform (Succession) Act 1995

4.3 Explain how a later testamentary document 4.3 The need for express revocation in writing; may revoke an earlier will revocation to the extent that the later document is inconsistent with the first

4.4 Explain the rules relating to mutual wills 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 Apply an understanding of the way in which 4.5 Application of understanding to a complex a will is revoked to a given situation scenario

4.6 Critically evaluate a given issue or situation 4.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 5 Understand the effect of alterations 5.1 Analyse how the statutory rules relating to 5.1 Provisions of s21 WA 1837; presumption contained in a will the alteration of wills have been applied alteration made post-execution, exception through case law to this is where alteration is to complete blank spaces, attested alterations admitted; effect of unattested alterations; meaning of “apparent”, effect of original wording being “not apparent”, rules on use of extrinsic evidence; relevant case law, eg, Re Itter (1950)

This specification is for 2012 examinations Page 175 of 276

5.2 Apply an understanding of the rules relating 5.2 Application of understanding to a complex to alteration of a will to a given situation scenario

5.3 Critically evaluate a given issue or situation to 5.3 A reasoned opinion of likely legal predict probable legal implications implications, including remedies and defences, where appropriate 6 Understand the main principles of 6.1 Explain the rules available to the court in 6.1 The basic rule, intention as expressed in construction of wills ascertaining the testator’s expressed the will; relevant case law, eg, Rowland intention (1963), Jones (1998); ordinary meaning for ordinary words; technical words given their technical meaning; relevant case law, eg, Cook (1948); dictionary principle

6.2 Analyse how the rules which allow the courts 6.2 The general rule to exclude extrinsic to use extrinsic evidence of the testator’s evidence; exceptions: the armchair intention have been applied through case principle, the surrounding circumstances; law 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 Explain the rules relating to the date from 6.3 s24 WA 1837, difference in approach which the will speaks between beneficiaries and property; contrary intention; rules on republication and revival

6.4 Analyse the effect of types of class gift 6.4 The need for class closing rules; definition of immediate, deferred, contingent and deferred contingent class gifts; gifts of specified amount to a class of people, eg, Pearks v Moseley (1880)

6.5 Identify whether a gift is absolute or limited 6.5 The construction of successive interests;

This specification is for 2012 examinations Page 176 of 276 and explain the effect s22 AJA 1982 presumption re spouses; the rule in Lassence v Tierney (1849) 6.6 Explain the rules which relate to adopted and 6.6 Adopted children treated as legitimate child illegitimate children of adopter; illegitimate children treated as if legitimate

6.7 Apply an understanding of the rules of 6.7 Application of understanding to a complex construction to a given situation scenario

6.8 Critically evaluate a given issue or situation 6.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 7 Understand the statutory rules relating to 7.1 Distinguish between intestacy and partial 7.1 The difference between intestacy (leaving devolution of estates on intestacy intestacy no will, or ineffective or invalid will) or partial intestacy where will does not dispose of whole estate

7.2 Explain the operation of the statutory trust of 7.2 Provisions of s33 AEA 1925, apply to both land 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 Explain the order of beneficial entitlement on 7.3 s46 AEA 1925 order and extent of intestacy 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 7.4 Statutory survivorship period; redemption spouses/civil partners of life interest; acquisition of the matrimonial home, Schedule II Intestates’ Estates Act (IEA) 1952, use of equality money, date of valuation for any

This specification is for 2012 examinations Page 177 of 276 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

7.5 Apply an understanding of intestacy/partial 7.5 Application of understanding to a complex intestacy to a given situation scenario

7.6 Critically evaluate a given issue or situation to 7.6 A reasoned opinion of likely legal predict probable legal implications implications, including remedies and defences, where appropriate 8 Understand the circumstances in which 8.1 Explain the purpose of a grant of 8.1 To establish the authority of the personal different types of grant of representation representation representatives (PRs); to establish the may be appropriate validity of any will or to establish that there is no valid will

8.2 Explain when the various types of grant of 8.2 Probate: valid will with appointment of representation are appropriate 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 20 and 22 Non-Contentious Probate Rules (NCPR) 1987)

8.3 Explain the circumstances in which a grant 8.3 May be contentious or non-contentious; may be revoked grounds include that it ought not to have been made (fraudulent application, better entitled person found, grant made despite

This specification is for 2012 examinations Page 178 of 276 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 Analyse the effect of such revocation 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

8.5 Apply an understanding of the appropriate 8.5 Application of understanding to a complex grants of representation to a given scenario scenario

8.6 Critically evaluate a given issue or situation 8.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 9 Understand the rules governing personal 9.1 Explain how executors may become entitled 9.1 Appointment by will; appointment representatives’ entitlement to a grant of to a grant of representation distinguishing according to tenor; relevant case law, eg, representation between appointment by will and other Baylis (1865), McKenzie (1909); person methods 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 (formerly known as Supreme Court Act) (SCA) 1981), court power to appoint additional PR to act with sole executor

9.2 Explain the circumstances in which 9.2 Rule 22 NCPR 1987 (simple administrators may become entitled to a administration) list of entitlement follows grant of representation beneficial entitlement on intestacy; rule 20 NCPR 1987 (administration with will annexed) list of entitlement follows order of

This specification is for 2012 examinations Page 179 of 276 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 Explain the circumstances in which a 9.3 Renunciation, effect of intermeddling, potential personal representative may avoid possibility of retraction; power reserved to appointment or be refused by the court appointed executors; passing-over, s116 SCA 1981, discretionary power, exercised on request (egPotter (1899)), or applicant is unsuitable (as in,eg, Crippen (1911))

9.4 Apply an understanding of the rules 9.4 Application of understanding to a complex governing entitlement to a grant of scenario representation to a given situation

9.5 Critically evaluate a given issue or situation 9.5 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 10 Understand the powers, duties and 10.1 Explain the statutory administrative powers 10.1 powers given under AEA 1925, Trustee liabilities of personal representatives available to personal representatives 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 minors; power to advance capital; power to delegate; the rules relating to appropriation

10.2 Analyse their effectiveness in dealing with 10.2 An understanding that these can be estate assets 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 Explain the duties of personal 10.3 Duty to collect assets and administer with

This specification is for 2012 examinations Page 180 of 276 representatives 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 Explain the liability of personal 10.4 Loss arising from breach of duty; representatives examples include misappropriation, maladministration, negligence; usually several liability amongst a number of PRs; liability for the acts of agents

10.5 Explain the ways in which relief might be 10.5 Relieving provisions in the will; relevant granted from such personal liability case law, eg, Armitage v Nurse (1997); relief under s61 TA 1925 granted by the court; consent or release from beneficiaries; limitation

10.6 Explain the methods by which personal 10.6 Appropriate use of s27 TA 1925 representatives might protect themselves advertisements; use of searches; setting from liability aside a fund; insurance; application to the court for directions; the use of Benjamin orders (ie, Benjamin (1902))

10.7 Apply an understanding of the powers and 10.7 Application of understanding to a complex duties of personal representatives to a given scenario situation

10.8 Critically evaluate a given issue or situation 10.8 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 11 Understand the rules relating to the 11.1 Distinguish between a solvent and an 11.1 Solvent: assets are sufficient to pay all payment of debts during the insolvent estate funeral, testamentary and administration administration of an estate 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

This specification is for 2012 examinations Page 181 of 276 11.2 Explain the rules relating to the payment of 11.2 Part II of Schedule I AEA 1925 order in debts in a solvent estate 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 Analyse the effect of varying these rules 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 Explain the rules relating to the payment of 11.4 PRs must follow order of priority which debts in an insolvent estate 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 11.5 Application of understanding to a complex to the payment of debts to a given situation scenario

11.6 Critically evaluate a given issue or situation 11.6 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate 12 Understand the provisions of the 12.1 Explain the preliminary requirements of the 12.1 Domicile; time limit for applications; the Inheritance (Provision for Family and Act applicant falls into one of the categories; Dependants) Act 1975 reasonable financial provision has not been made

This specification is for 2012 examinations Page 182 of 276

12.2 Analyse the way in which the courts have 12.2 Classification of applicants: s1(1) of the applied the classification of applicants 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 Distinguish between the two standards of 12.3 Reasonable financial provision; surviving reasonable provision spouse standard; ordinary standard; consideration of changes arising post death

12.4 Explain the common and particular 12.4 s3(1) common guidelines, financial guidelines available to the court resources of applicant/beneficiaries, obligations and responsibilities of the deceased, size and nature of the estate, applicant’s physical or mental disability, any other matter; particular guidelines, as applicable to each category of applicant

12.5 Explain the types of orders available to the 12.5 Periodical payments; lump sum payments; court transfers of property; settlement of property; acquisition of property; interim payment orders

12.6 Identify the property available for financial 12.6 s25 and definition of the “net estate”; provision treatment of joint property; anti-avoidance

This specification is for 2012 examinations Page 183 of 276 provisions

12.7 Analyse how the provisions of the Act have 12.7 Relevant case law relating to each been implemented by the courts through category of applicant, in particular the case law stance relating to children of the deceased

12.8 Apply an understanding of the provisions of 12.8 Application of understanding to a complex the Act to a given situation scenario

12.9 Critically evaluate a given issue or situation 12.9 A reasoned opinion of likely legal to predict probable legal implications implications, including remedies and defences, where appropriate

This specification is for 2012 examinations Page 184 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of the Law of Wills and Succession Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 185 of 276

Section 2: The Practice Units

Unit Number Unit Title Page numbers Unit 15 Civil Litigation 187-196 Unit 16 Practice of Company and Partnership Law 197-206 Unit 17 Conveyancing 207-219 Unit 18 Criminal Litigation 220-226 Unit 19 The Practice of Employment Law 227-240 Unit 20 The Practice of Family Law 241-253 Unit 21 Probate Practice 254-263

This specification is for 2012 examinations Page 186 of 276

Unit 15

Title: Civil Litigation

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the main underlying features 1.1 Explain the key rules of professional 1.1 The Solicitors rules of conduct including the that enable an act of litigation conduct 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 Explain different methods of financing 1.2 Private funding: an explanation of privately litigation 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 Explain the legal principles upon which 1.3 An underpinning knowledge of the principles of most civil litigation is based the laws of contract and tort, including the law of negligence and occupiers’ liability

1.4 Analyse a given legal situation on these 1.4 Analysis of a complex scenario to offer advice underlying features in order to offer and assistance, eg, principles of best practice practical advice and assistance when accepting new instructions, including the requirement to provide accurate estimates of costs and regular progress updates

This specification is for 2012 examinations Page 187 of 276 2 Understand what pre-action steps should 2.1 Describe the key features of the Civil 2.1 The overriding objective of the CPR (rules 1.1, be considered before a claim is issued Procedure Rules (CPR) 1.2); pre-action protocols; Alternative Dispute Resolution (ADR) (Rule 1.4(2)(e)) 2.2 Explain alternative methods of resolving 2.2 The use of the statutory demand procedure as debt actions under the Insolvency Act a debt-collection tactic, ie, when it may be 1986 used and its key restrictions

2.3 Describe limitations to actions 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 Analyse a defendant’s financial 2.4 Financial enquiries of the viability of pursuing a circumstances 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 Identify remedies available, including the 2.5 Establishing quantum in personal injury cases, assessment of damages and interest 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 Explain current pre-action protocols and 2.6 Pre-action protocols; an understanding of practices in litigation where a published protocol applies; all

published protocols including those for:

personal injury (inc low value personal injury),

This specification is for 2012 examinations Page 188 of 276 clinical negligence, professional negligence, claims for disease 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

2.7 Analyse a given legal situation on pre- 2.7 Analysis of a complex scenario to offer advice action steps in order to offer practical and assistance, eg, analysis of the facts, advice and assistance 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 3.1 Explain in which court proceedings should 3.1 Jurisdiction of the Court; location and proceedings be issued 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 Analyse a claim form 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 Explain the procedure for issuing and 3.3 Issuing a claim, including knowledge of the serving a claim Money Claim Online scheme; address,

This specification is for 2012 examinations Page 189 of 276 methods and deemed dates of service (Part 6)

3.4 The contents of a defence (Parts 9 & 15);

assessment of a defence; timescales for filing 3.4 Analyse a defence to a claim, including defence or acknowledgment of service (Part evaluation of potential counterclaims 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 3.5 Explain how additional claims can be indemnities; procedural steps for bringing an brought by a defendant additional claim and the court’s use of its case

management powers

3.6 Requests for further information (Part 18), ie, 3.6 Explain the procedure for obtaining more procedure for making a request, format and information about an opponent’s how to respond to a request statement of case

3.7 Analyse how and when a statement of 3.7 Powers and procedure for amending a case can be amended statement of case (Part 17)

3.8 Analyse a given legal situation on the 3.8 Analysis of a complex scenario to offer advice initial stages of proceedings in order to and assistance; drafting of a Particulars of offer practical advice and assistance Claim, a defence, and a counterclaim or claim against a third party 4 Understand when a matter can be 4.1 Describe the process of ending 4.1 Applications for judgment in default (part 12) terminated without a trial proceedings where no defence is filed and setting aside default judgments (part 13)

4.2 Describe the procedure for obtaining 4.2 Judgments on admission (Part 14), ie, judgment where a party admits some or procedure for making an admission; types of all of the claim admissions and their effect

4.3 Analyse when a case is weak and 4.3 Applications for summary judgment (Part 24); This specification is for 2012 examinations Page 190 of 276 identify the rules and procedure for who may apply; tests used by the court disposing of it early 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 Analyse the effect of reaching a 4.4 Stay of proceedings; contracts of compromise negotiated settlement before judgment and the use of Tomlin orders

4.5 Distinguish between discontinuing and 4.5 Discontinuance (part 38) and abandoning abandoning proceedings heads of claim (Part 17)

4.6 Analyse a given legal situation on when 4.6 Analysis of a complex scenario to offer advice a matter can be terminated without a trial and assistance; drafting of Tomlin orders, in order to offer practical advice and applications for default and summary assistance judgments

5 Understand the track allocation system 5.1 Explain the criteria used by the court to 5.1 An explanation of: Small Claims, Fast Track decide an appropriate track for an action 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 Analyse the significance of allocation to 5.2 Small Claims track, ie, the extent of the court’s each of the tracks 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 5.3 Analysis of a complex scenario to offer advice track allocation system in order to offer and assistance practical advice and assistance

This specification is for 2012 examinations Page 191 of 276 6 Understand the key steps made in the 6.1 Explain what is meant by “directions” 6.1 Directions, ie, preparation of example contents progress of a matter to trial 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 Explain the rules of disclosure 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 Explain the purpose of witness 6.3 The importance of preparing witness statements and summonses, and the statements early (“front-loading litigation”) and accompanying practical considerations of the need for exchange; how evidence is preparing evidence 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 Analyse how expert witness reports are 6.4 The use of experts and where it is appropriate used by the parties and the court 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 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

This specification is for 2012 examinations Page 192 of 276 6.5 Analyse a given legal situation on the 6.5 Analysis of a complex scenario to offer advice key steps made in the progress of a and assistance matter to trial in order to offer practical advice and assistance 7 Understand offers of settlement and 7.1 Explain formal offers to settle 7.1 Part 36 offers; nature of the offer when made interim payments and remedies 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 Explain the use of interim payments 7.2 Nature and availability; procedure and grounds for making a payment (Part 25); voluntary payments

7.3 Explain other interim remedies available 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

7.4 Analyse a given legal situation on offers 7.4 Analysis of a complex scenario to offer advice of settlement and interim payments and and assistance remedies in order to offer practical advice and assistance 8 Understand trial procedure 8.1 Explain the procedures involved within a 8.1 Procedures at the trial, ie, witness attendance, trial production of documents, trial bundles and skeleton arguments/reading lists/authorities; order of events including sequence of events

8.2 Explain the rules of civil evidence and 8.2 The rules relating to hearsay; evidence of their effect at trial admissions and the provisions of the Civil Evidence Act 1968 and 1995

8.3 Analyse the principle of costs and its 8.3 How costs usually follow the event and are application at trial added to the judgment debt (claimant) or

This specification is for 2012 examinations Page 193 of 276 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

8.4 Analyse a given legal situation on trial 8.4 Analysis of a complex scenario to offer advice procedure in order to offer practical and assistance advice and assistance 9 Understand orders and judgments, how 9.1 Outline the orders available and describe 9.1 Types of judgments available, including interim they are enforced and the procedure of how decisions of the court become payments, payments by instalments, orders appealing a judgment judgments 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 Explain the enforcement remedies 9.2 General rules about enforcement (Part 70); available to a winning party 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 Explain the appeals procedure 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 9.4 Analysis of a complex scenario to offer advice and judgments in order to offer practical and assistance; drafting of suitable consent advice and assistance orders 10 Understand the civil costs regime 10.1 Identify the rules relating to costs 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 Analyse the impact of legislation and 10.2 An understanding of the extension of the fixed litigation on the costs regime fee regime; litigation surrounding conditional

fee agreements and breaches of the indemnity

principle; eg, Pilbrow v Pearless De This specification is for 2012 examinations Page 194 of 276 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

10.3 Analyse a given legal situation on the 10.3 Analysis of a complex scenario to offer advice civil costs regime in order to offer and assistance, eg, an analysis of when practical advice and assistance funding may become an issue in litigation and what steps should be taken; the application of the principles of costs to a scenario

This specification is for 2012 examinations Page 195 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Civil Litigation Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units appropriate) of the Legal Advice standards; specifically, Unit 44 Personal Injury Legal Advice and Casework Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 196 of 276 Unit 16

Title: The Practice of Company and Partnership Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the key practical, financial and 1.1 Analyse the relative advantages and 1.1 Media to include: sole trading, partnership, fiscal implications in choice of business potential disadvantages of different limited liability partnership, private limited medium business media 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 Explain the tax implications for each of the 1.2 Tax definitions, eg, income tax, corporation different business media 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 Analyse a given legal situation on choice of 1.3 Analysis of a complex scenario to offer business medium in order to offer practical practical advice and assistance, eg, taking advice and assistance account of the client’s needs, business types available and potential liability 2 Understand the practices and procedures 2.1 Explain the requirements for the formation 2.1 Statutory requirements: Partnership Act (PA) relating to the formation and management of partnerships 1890; partnership agreements; unlimited of a partnership liability; the Limited Partnership Act (LPA) 1907; s4: at least 1 general partner liable;

This specification is for 2012 examinations Page 197 of 276 “sleeping partners”; the Limited Liability Partnership Act (LLPA) 2000: limited liability; registration procedure

2.2 Explain the powers, duties and liabilities of 2.2 Contractual relationship; agency relationship; partners 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

2.3 Analyse a given legal situation on the 2.3 Analysis of a complex scenario to offer formation and management of a practical advice and assistance, eg, the partnership in order to offer practical relative merits of the different partnership advice and assistance types to the client in light of an existing or proposed business; drafting clauses within a partnership agreement 3 Understand the procedure for the 3.1 Explain the procedure for the termination 3.1 Statutory procedures: Partnership Act 1890 termination of a partnership of a partnership eg, automatic termination, service of notice; dissolution by the court; limited partnerships; limited liability partnerships

3.2 Explain the effects of termination 3.2 Procedures and effects: statutory notices; valuation of assets; distribution of assets

3.3 Explain the procedure when there is a 3.3 Partnership agreement provision; PA 1890: change of partners default provision (terminates if one party leaves); process of sale of interest in partnership; effect of sale; effect of retirement

3.4 Explain the effect of insolvency on a 3.4 PA 1890: effect of unlimited liability; joint and partnership several liability; Insolvent Partnerships Order 1994; provision for bankruptcy of a partner; dissolution in default of provision; Partnership Voluntary Arrangement; LPA 1907 (minimum of 1 partner with unlimited liability); LLPA 2000 and limited liability 3.5 Analyse a given legal situation on the 3.5 Analysis of a complex scenario to offer This specification is for 2012 examinations Page 198 of 276 procedure for the termination of a practical advice and assistance, eg, advice partnership in order to offer practical on the appropriate actions to be adopted in advice and assistance the event of the termination of a partnership 4 Understand how to form a limited company 4.1 Explain the process relating to promotion 4.1 Definition and role of promoter, ie, Twycross and registration of a company 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 Explain the purpose of the memorandum 4.2 Definition; default provisions; s8 Companies of association and the default provisions Act (CA) 2006

4.3 Explain the purpose of the articles of 4.3 Definition; Model Articles default provisions association and the default provisions

4.4 Analyse a given legal situation on the 4.4 Analysis of a complex scenario to offer formation of a limited company in order to practical advice and assistance, eg, the offer practical advice and assistance 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 5.1 Explain the disclosure requirements of 5.1 Documentation to Companies House, eg, incorporating as a registered company incorporation and the potential loss of accounts, registration of charges, registration control of directors, shares; separate legal entity; members; directors

5.2 Explain the tax implications of 5.2 Income tax, corporation tax, CGT; stamp incorporation duty; notification and liability

5.3 Analyse a given legal situation on the 5.3 Analysis of a complex scenario to offer

This specification is for 2012 examinations Page 199 of 276 implications of incorporation in order to practical advice and assistance, eg, advising offer practical advice and assistance 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 6.1 Explain the requirement and process of 6.1 Definitions, eg, AGM, GM; no requirement convening and conduct of shareholder convening general shareholder meetings for AGM for private company unless a meetings traded company; notification- requirement, content and process; quorum; Articles & Model Articles

6.2 Explain the process and rules governing 6.2 Ordinary and Special resolutions; voting members’ resolutions procedures; elective and written resolutions; process; voting: arrangements; restrictions on voting; Model Articles

6.3 Explain the rules and procedures to 6.3 Relevant case law, eg, Foss v Harbottle provide minority shareholder protection (1843); s994 CA 2006: unfair prejudice; s122 Insolvency Act (IA) 1986: just & equitable winding up; burden of proof

6.4 Analyse a given legal situation on the 6.4 Analysis of a complex scenario to offer practices relating to the convening and practical advice and assistance, eg, advising conduct of meetings in order to offer a client on the rights, powers and duties of practical advice and assistance the member 7 Understand the practices relating to the 7.1 Explain how a director is appointed, 7.1 Definition CA 2006: s741; requirements, eg, role and responsibility of directors and retained, remunerated and removed number, age, natural, ie see ss154, 155, other company officers 157; initial in statement; appointment: under Articles, Regulation 17 (Model Articles for Private Companies) and Regulation 20 (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)

This specification is for 2012 examinations Page 200 of 276 clause; compensation: Southern Foundries v Shirlaw (1940)

7.2 Differentiate between de jure, de facto and 7.2 Definition of shadow, ie, Re Hydrodan shadow directors (Corby) Ltd (1994); s251 IA 1986; s22(5) CDDA 1986; Secretary of State for Trade and Industry v Deverell (2001)

7.3 Explain how directors exercise their duties 7.3 The importance of board meetings and the and powers both as a board and as requirement for minutes of these meetings; individuals 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 Explain the appointment role, duties and 7.4 Company secretary: required for PLC, ie, removal of a company secretary or an s271 CA 2006; for a private company not auditor 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

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7.5 Analyse a given legal situation on the role 7.5 Analysis of a complex scenario to offer and responsibility of directors and other practical advice and assistance, eg, advice company officers in order to offer practical on the potential personal liability of company advice and assistance officers and the processes involved in establishing liability 8 Understand when and how a company’s 8.1 Explain when and how a memorandum of 8.1 Definitions, eg, memorandum, objects constitution may be altered association and articles of association may clause, articles; s8 CA 2006; s18 CA 2006; be changed 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

8.2 Analyse a given legal situation on when 8.2 Analysis of a complex scenario to offer and how a company’s constitution may be practical advice and assistance, eg, advice altered in order to offer practical advice on the process and effect of alteration of and assistance clauses in the company’s constitution 9 Understand the procedures for the issue of 9.1 Explain the different types of share and 9.1 Definition of share and interest; classes of share capital their benefits to the company and member 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 9.2 Definitions, eg, issued, paid up and called shares, the process of share issue and up; authorised share capital abolished (ss9 possible restrictions on transfer and and 10 CA 2006); disclosure to members: transmission 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

This specification is for 2012 examinations Page 202 of 276 certificates; updating of company share records and electronic transfer (eg, CREST)

9.3 Analyse the restrictions on purchase of 9.3 Case law, eg, Trevor v Whitworth (1887); own shares, offering of financial reduction of capital in articles (Model assistance and the reduction of capital 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

9.4 Analyse a given legal situation on the 9.4 Analysis of a complex scenario to offer procedures for the issue of share capital in practical advice and assistance, eg, advice order to offer practical advice and on the most appropriate form of share issue assistance for the company 10 Understand company borrowing 10.1 Explain the purpose and process of 10.1 Case law, eg, Re Yorkshire Woolcombers debenture issue, including the fixed and (1904); book debts; bank accounts; floating charge registration process and effect

10.2 Analyse the effectiveness of fixed and 10.2 Registration priority; crystallisation; relevant floating charges case law, eg, Re New Bullas (1994); Brumark (2000); avoidance of charges on liquidation; liability

10.3 Explain retention of title clauses 10.3 Relevant case law: eg, The Romalpa clause (Aluminium Industrie Vaasen v Romalpa Aluminium 1976); identification of property with interest retained

10.4 Analyse a given legal situation on 10.4 Analysis of a complex scenario to offer company borrowing in order to offer practical advice and assistance, eg, advice practical advice and assistance on the benefits and disadvantages to the company and creditors of the different methods of borrowing

This specification is for 2012 examinations Page 203 of 276 11 Understand the administration and 11.1 Explain the administrative and disclosure 11.1 Filing requirements, eg, resolutions, share disclosure requirements of the company requirements of company officers issues, charges, appointment and departure of directors, annual return, accounts; officers responsible; penalties for non-compliance; company searches

11.2 Explain the key documents and records 11.2 Statutory records, eg, registers of members, required for the maintenance of directors and secretaries; charges; directors’ registration interests; minute book; accounting records

11.3 Analyse a given legal situation on the 11.3 Analysis of a complex scenario to offer administration and disclosure practical advice and assistance, eg, advice requirements of the company in order to on the administrative and disclosure offer practical advice and assistance requirements of company officers 12 Understand the responsibilities and 12.1 Explain the company’s duties and 12.1 Definitions; duty to creditors, eg, West process of corporate insolvency responsibilities if the company is insolvent Mercia (1988); insolvency practitioners

12.2 Explain the purpose and process of 12.2 Definition; CA 2006: schemes of company voluntary arrangements 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 12.3 Definitions; rescue regime; Enterprise Act administration, administrative receivership 2002, Schedule B1; administrator and receivership 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 Explain the process of winding up 12.4 Members’ and creditors’ voluntary winding up; process; resolutions; statements; appointment of liquidator; effect; priority; court winding up: s124 IA 1986; the process

This specification is for 2012 examinations Page 204 of 276 of ‘striking off’ the Register

12.5 Explain the potential liabilities of company 12.5 s214 IA 1986: wrongful and fraudulent officers trading (s213); provisions and misfeasance (s212); disqualification CDDA 1986

12.6 Analyse a given legal situation on the 12.6 Analysis of a complex scenario to offer responsibilities and process of corporate practical advice and assistance, eg, advice insolvency in order to offer practical advice on the appropriate action when the company and assistance is thought to be insolvent

This specification is for 2012 examinations Page 205 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of the Practice of Company and Partnership Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 206 of 276 Unit 17

Title Conveyancing

Level 6

Credit Value 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will The learner can 1 Understand conveyancing practice in 1.1 Explain the practice of land registration 1.1 Compulsory first registration: transfer or relation to interests in land and the in relation to residential conveyancing mortgage of unregistered freehold; a lease for transfer of legal estates transactions 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 a successor in title unless registered; some interests can be protected by registration even

This specification is for 2012 examinations Page 207 of 276 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 Describe the classes of title and how 1.2 Absolute; possessory; good leasehold; process these can be upgraded of upgrading

1.3 Explain registration of Interests against 1.3 Land charge; registration against name; unregistered land 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 Explain the differences between types of 1.4 Freehold, leasehold, commonhold titles title

1.5 Explain the difference between a joint 1.5 Right of survivorship; undivided shares; tenancy and a tenancy in common severance; trust documents; Stack v Dowden (2007) and other relevant case law

1.6 Explain the system of commonhold as 1.6 In outline only: Part 1 Commonhold and an alternative to traditional Leasehold Reform Act 2002; Land Registry freehold/leasehold titles 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 1.7 When a registered proprietor has: died: transferred or charged when a paper- survivorship, death certificate, probate/letters owner has died, lost capacity or is of administration; overreaching/appointment of otherwise absent second trustee; has lost mental capacity:

This specification is for 2012 examinations Page 208 of 276 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

1.8 Analyse a given legal situation on the 1.8 Analysis of a complex scenario to offer advice principles and practice relating to and assistance transfer of legal estates and interests in land in order to offer practical advice and assistance 2 Understand how to take conveyancing 2.1 Explain how to use conveyancing 2.1 Published and on-line precedents, eg, the instructions precedents in the drafting of standard encyclopaedia of forms and precedents documentation

2.2 Describe the process of negotiating non- 2.2 Draft document prepared and submitted for standard conveyancing documentation approval; proposed amendments; travelling with another party’s lawyer draft; negotiations on terms/wording; clean draft prepared incorporating agreed amendments

2.3 Explain how to take conveyancing 2.3 Sale or purchase of a residential freehold, eg, instructions for a range of transactions 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), 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

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2.4 Analyse a given legal situation on how to 2.4 Analysis of a complex scenario to offer advice take conveyancing instructions in order and assistance, eg, drafting common to offer practical advice and assistance 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 3.1 Describe the legal requirements for 3.1 Section 2 of Law of Property (Miscellaneous) sale creating a binding contract for the sale Provisions Act 1989 of land

3.2 Explain the significance of full and 3.2 The difference between full title guarantee; limited 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 Explain the key features of a contract for 3.3 Standard Conditions of Sale; front page and sale for any residential freehold or special conditions; transfer/lease leasehold transaction

3.4 Interpret and identify necessary 3.4 Check terms of draft contract against client amendments in a draft contract instructions and amend as appropriate prepared by another lawyer

3.5 Explain payment (or receipt) of a deposit 3.5 Conventional 10% deposit as security; how on exchange of contracts 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 3.6 Law Society formulae A, B and C; achieving any given situation simultaneous exchange

3.7 Explain how to give a party an option to 3.7 Perpetuities and Accumulations Act 1964; purchase land Section 2 Law of Property (Miscellaneous Provisions) Act 1989; Protection by registration

This specification is for 2012 examinations Page 210 of 276 3.8 Describe documentation to be sent out 3.8 Title information; Property Information Form; with a draft contract (contract package) Fixture/Fittings questionnaire

3.9 Analyse a given legal situation on 3.9 Analysis of a complex scenario to offer advice preparing a contract for sale in order to and assistance; eg, using Standard Conditions offer practical advice and assistance 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 Deduce title 4.1 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; explanation of the purpose of an Energy Performance Certificate (EPC) and what it contains

4.2 Explain how to raise pre-contract 4.2 Reviewing title documentation supplied and enquiries and title requisitions identifying where clarity required; drafting standard title requisitions and pre-contract enquiries

4.3 Describe the relevant pre-contract 4.3 For example: Local Searches; LA enquiries; searches utility; environmental search, chancel-check; coal mining enquiries 4.4 Explain what options are available to 4.4 Identifying title difficulties; title indemnity overcome title difficulties insurance; deed of release; confirmatory documentation; Lands Tribunal

This specification is for 2012 examinations Page 211 of 276 4.5 Analyse a given legal situation on title 4.5 Analysis of a complex scenario to offer advice investigation in order to offer practical and assistance; eg, in a given situation, advice and assistance 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 5.1 Explain the structure of a residential 5.1 Distinguishing between a lease and an leasehold property transactions lease 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; 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 Explain how to apply for a ground 5.2 Identify whether a landlord’s consent is landlord’s consent (where such consent required; most (though not all) residential is required in any situation) 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

This specification is for 2012 examinations Page 212 of 276 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 Explain what due diligence enquiries 5.3 Three years service charge accounts; enquiry should be made to alert a lease-buyer to as to programmed maintenance and/or outstanding liabilities 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 Explain the rights conferred on 5.4 Leasehold Reform Housing and Urban residential leaseholders of flats to Development Act 1993 (as Amended by enfranchise collectively the freehold of Commonhold and Leasehold Reform Act their block 2002); qualifying criteria; intermediate interests; price payable

5.5 Explain a residential leaseholder’s (or 5.5 Leasehold Reform Housing and Urban the prospective buyer of an existing Development Act 1993 (amended as above); lease’s) right to extend individually a qualifying criteria; price payable; permitted lease extensions possible; length of extension

5.6 Outline in each case the process to be 5.6 An outline of enfranchisement: RTE Company, undertaken in exercise of the right to participation notice, initial notice, counter enfranchise or extend 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

This specification is for 2012 examinations Page 213 of 276 candidates be tested on their ability to carry out a conveyancing transaction involving statutory enfranchisement/lease extension

5.7 Analyse a given legal situation on 5.7 Analysis of a complex scenario to offer advice leasehold issues in order to offer and assistance practical advice and assistance 6 Understand what easements or 6.1 Explain the process of registering a 6.1 As for a registration of transfer of whole, save management arrangements need to be put purchase of land forming part of a wider that the property will be transferred using Land in place when transferring or leasing part registered title Registry Form TP1 to which must be attached of a wider title 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 what access and/or service 6.2 Identify mains services and whether property easements should be granted or directly fronts adopted public highways; identify reserved 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 6.3 Practical ways to ensure that a building or maintenance of a building or of an private service road or utility is properly access or other service facility should be maintained at the shared expense of the addressed occupants or users; making use of the facility conditional on contributions towards future maintenance may overcome difficulty in enforcing positive covenants

6.4 Analyse a given legal situation on 6.4 Analysis of a complex scenario to offer advice easements and management and assistance; eg, (using learner’s own arrangements in order to offer practical words) drafting an easement or reservation for advice and assistance 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

This specification is for 2012 examinations Page 214 of 276 7 Understand the legal responsibilities in 7.1 Explain to a prospective buyer the ways 7.1 In respect of: types of mortgage finance relation to funding property transactions in which property transactions may be available, need for independent survey, financed bridging finance

7.2 Explain the separate duties owed to a 7.2 Separate client; Code of Conduct; CML mortgage lender Lenders Handbook contains standard instructions

7.3 Explain how to act for a mortgage lender 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/e-DS1; circumstances when a prospective co-mortgagor must be separately advised (Royal Bank of Scotland v Etridge (No. 2) (2001))

7.4 Analyse a given legal situation on the 7.4 Analysis of a complex scenario to offer advice funding of property transactions in order and assistance to offer practical advice and assistance 8 Understand other pre-exchange issues in 8.1 Explain the need to ensure compliance 8.1 Awareness that planning permission may be an relation to planning/building regulations with both planning and building issue; Town and Country Planning Act 1990 and newly built residential properties regulations approval (as amended); most structural building work is subject to building regulations (even when planning permission not required); evidence of building regulation approval

8.2 Explain the options available when there 8.2 Identifying the non-compliance; assessing the is existing regulatory non-compliance risk; advising on solution; the possibility of with planning and building regulations indemnity insurance

This specification is for 2012 examinations Page 215 of 276 approval

8.3 Explain the Buildmark scheme in relation 8.3 Items guaranteed for two years; items to newly built residential properties guaranteed for 10 years; documentation required

8.4 Explain what remedies become 8.4 Against builder; against NHBC available under Buildmark when defects become apparent

8.5 Explain how to act for a client 8.5 Check planning permissions; building purchasing an uncompleted property “off regulation approval; vendor’s title; check plan” transfer; plan of unit; payment of deposit; Section 38 (road making agreement); check service easements; new estate covenants

8.6 Analyse a given legal situation on 8.6 Analysis of a complex scenario to offer advice planning/building regulations and newly and assistance built residential properties in order to offer practical advice and assistance 9 Understand how to complete a 9.1 Prepare priority searches 9.1 Where whole of land in a title is being conveyancing transaction 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 Explain procedures for engrossment, 9.2 Agreed document “engrossed” on durable execution and dating of documentation 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 Explain how to arrange a transfer of 9.3 Draw down mortgage funds; arrangements for

This specification is for 2012 examinations Page 216 of 276 funds for completion telegraphic transfer to vendor’s solicitor; money held to order pending formal completion

9.4 Explain the function of a detailed 9.4 List of documents to be handed over/received, completion checklist 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

9.5 Analyse a given legal situation on the 9.5 Analysis of a complex scenario to offer advice completion of a conveyancing and assistance, eg, completing a completion transaction in order to offer practical checklist advice and assistance 10 Understand how to deal with post- 10.1 Explain the requirements of stamp duty 10.1 Assessment of duty; completing SDLT 1 and completion formalities land tax 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 10.2 For: registration of a dealing with whole of Registry 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, e-DS1, new lease, SDLT 5, charge, priority OS2

10.3 Analyse a given legal situation on post- 10.3 Analysis of a complex scenario to offer advice completion formalities in order to offer and assistance; drafting of relevant post- practical advice and assistance completion documentation 11 Understand how to deal with late 11.1 Explain the significance of a contractual 11.1 Presumption that time not of the essence, but completion and other default completion date more than just a target date

11.2 Explain the financial consequences and 11.2 Automatic contractual interest; paid after liabilities arising out of late completion deduction of tax (corporation/individual abroad); tax deduction certificates; circumstances when interest non-payable;

This specification is for 2012 examinations Page 217 of 276 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 Explain the consequences of 11.3 Contractual consequences; consequence of misdescription and/or misrepresentation inaccurate or dishonest response to pre- contract enquiries

11.4 Explain how time can be made “of the 11.4 A party ready and willing to complete can essence” 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 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 Explain the circumstances under which 11.5 Buyer fails to complete within Completion a deposit can become forfeit Notice deadline

11.6 Analyse a given legal situation on how 11.6 Analysis of a complex scenario to offer to deal with late completion and other advice and assistance; eg, drafting (in the default in order to offer practical advice learner’s own words) a valid notice to complete and assistance (ie, in learner’s own words, but making express reference to the relevant General Condition and otherwise legally effective as a notice to complete)

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Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Conveyancing Unit expiry date 31 March 2015 Details of the relationship between the unit This unit may provide relevant and relevant national occupational underpinning knowledge and standards (if appropriate) understanding towards units of the Legal Advice standards Details of the relationship between the unit Na and other standards or curricula (if appropriate) Assessment requirements specified by a Na sector or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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 2011

This specification is for 2012 examinations Page 219 of 276 Unit 18

Title: Criminal Litigation

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the overall structure of the 1.1 Describe the jurisdiction of the courts 1.1 (a) Magistrates Court, ie, initial appearance (bail courts with criminal jurisdiction 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 Explain the processes for appeal and 1.2 Magistrates Court to Crown Court, ie, by the circumstances where each is defence and against conviction (rehearing by appropriate 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 Court; Crown Court to Court of Appeal, ie, against conviction, sole ground is that conviction

This specification is for 2012 examinations Page 220 of 276 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 Explain the roles of individuals involved 1.3 Qualification and usual jurisdiction of Lords of in the court system 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 Describe the principal provisions of the 1.4 An understanding of the primary legislation, eg, primary and secondary legislation Magistrates Court Act 1980, Courts Act 1971, establishing and regulating the criminal Courts Act 2003 and secondary legislation, eg, courts Criminal Procedure Rules 2005 in particular the overriding objective and the obligations imposed on the defence in consequence

1.5 Describe the relevance of the Human 1.5 An understanding of the European Convention Rights Act to criminal proceedings on Human Rights Arts 5-7.

1.6 Explain the jurisdiction to stay 1.6 Relevant case law, eg, Humphreys (1975), proceedings as an abuse of process 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)

1.7 Analyse a given legal situation on the 1.7 Analysis of a complex scenario to offer advice structure of the criminal courts in order and assistance to offer practical advice and assistance

This specification is for 2012 examinations Page 221 of 276 2 Understand police powers in relation to 2.1 Explain the powers of stop and search 2.1 Availability and applicability of stop and search the investigation of crime powers: Police and Criminal Evidence Act 1984 (PACE) ss 1-4 and Code A; ss 44-7 Terrorism Act 2000 Part 4

2.2 Explain the powers to search premises 2.2 Availability and applicability of powers to search and persons, and obtain samples (eg, premises and persons: PACE ss8-23 and 32; fingerprints) 54-55 and Code B; provisions relating to samples: PACE ss 61 65; PACE Code C s 17 and Annex A

2.3 Explain the powers of arrest and 2.3 Availability and applicability of powers of arrest detention and detention: PACE ss 24-53; 56-58 and Codes C and G

2.4 Explain the powers in relation to 2.4 Availability and applicability of powers in relation questioning 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

2.5 Analyse a given legal situation on police 2.5 Analysis of a complex scenario to offer advice powers in relation to the investigation and assistance of crime in order to offer practical advice and assistance 3 Understand the rules relating to public 3.1 Describe the scope of the work which 3.1 The principal terms of the Unified Contract funding of advice and representation in can be done by one’s own solicitors (Crime) and guidance/instructions issued by the criminal matters and duty solicitors under the Unified Legal Services Commission/Criminal Defence Contract (Crime) 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 schemes and the role of CDS direct

3.2 Explain the purpose of a 3.2 Its purpose; applying for a representation order; representation order the merits section of an application for a representation order; the statutory merits criteria

This specification is for 2012 examinations Page 222 of 276 3.3 Outline the means criteria for the grant 3.3 The statutory means criteria and the procedure of representation for evaluation of applications 3.4 Analyse a given legal situation on the 3.4 Analysis of a complex scenario to offer advice public funding of advice and and assistance, eg, completing the merits representation in order to offer practical section of an application for a representation advice and assistance order 4 Understand the law relating to bail in 4.1 Explain the powers of the police and 4.1 Granting bail; procedures to review or appeal criminal proceedings the courts in relation to bail bail decisions; the consequences of breach of bail: Bail Act 1976; PACE ss 37-8, provisions relating to street bail

4.2 Analyse a given legal situation on the 4.2 Analysis of a complex scenario to offer advice law relating to bail in order to offer and assistance, eg, preparing a bail application practical advice and assistance taking full account of all relevant factors and likely objections; Bail Act 1976 5 Understand the various stages of 5.1 Explain the purpose and process of 5.1 PACE Code C; principal provisions of PACE criminal proceedings interview under caution 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 Explain identification procedures 5.2 PACE Code D; the VIPER system; relevant case law, eg, Turnbull (1977); alternatives to a VIPER or parade identification

5.3 Explain, in either way cases, the plea 5.3 Magistrates Courts Act 1980 ss 5-8, 17-25; before venue, mode of trial and Criminal Procedure Rules 2010 Part 10; Mode of committal procedures Trial Guidelines (scheduled to Criminal Procedure Rules)

5.4 Explain the purpose and process of the 5.4 Criminal Procedure and Investigations Act Part I; defence statement and disclosure CPR Parts 21 and 22

5.5 Explain the relevant rules of evidence 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

This specification is for 2012 examinations Page 223 of 276 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 Explain the evidential issues 5.6 Awareness of the features of the principal associated with the availability of defences, eg, self-defence, necessity, duress defences 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

5.7 Analyse a given legal situation relating 5.7 Analysis of a complex scenario to offer advice to the stages of criminal proceedings in and assistance, eg, drafting a defence order to offer practical advice and statement, instructions/brief to counsel or a assistance formal admission under s 10 Criminal Justice Act 1967 6 Understand sentencing and ancillary 6.1 Explain the principles and practice of 6.1 The principles of sentencing; the sentences orders in criminal proceedings sentencing 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; guideline sentencing cases; Criminal Justice Rules Parts 42-55; offences to be taken into consideration; pre-sentence and other reports

6.2 Analyse a given legal situation on 6.2 Analysis of a complex scenario to offer advice sentencing and ancillary orders in and assistance, eg, advising on sentence in order to offer practical legal advice and relation to defined circumstances and drafting a assistance plea in mitigation 7 Understand the principles of legal 7.1 Explain the duties of the advocate and 7.1 Confidentiality; duty not to mislead the court; professional ethics as they apply to adviser duty to disclose adverse matters of law; when criminal matters the adviser must withdraw; representing an absent client; relationship with court, prosecution

This specification is for 2012 examinations Page 224 of 276 and others

7.2 Analyse a given legal situation on 7.2 Analysis of a complex scenario to offer advice professional ethics as they apply to and assistance criminal matters in order to offer practical advice and assistance 8 Understand the special rules relating to 8.1 Explain the jurisdiction of the youth 8.1 Magistrates Courts Act 1980 ss 24, 29; Children juveniles court and the circumstances in which a & Young Persons Act 1933. Grave crimes and juvenile may be tried in an adult court dangerous offenders: ss 90-92 Powers of criminal Courts (Sentencing) Act and Part 12 Chap 5 CJA 2003.

8.2 Explain the rules operating for the 8.2 Youth Justice and Criminal Justice Act 1999 protection of juveniles Part 2 Chapters 4 and 5

8.3 Explain sentencing in relation to a 8.3 Youth Justice And Criminal Evidence Act 1999 juvenile Part 1; Powers of Criminal Courts (Sentencing) Act 2000 (relevant provisions); Crime and Disorder Act 1998 ss 37-42

8.4 Analyse a given legal situation relating 8.4 Analysis of a complex scenario to offer advice to the special rules for juveniles in and assistance, eg, advising on sentence in order to offer practical advice and relation to defined circumstances for a juvenile assistance

This specification is for 2012 examinations Page 225 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Criminal Litigation Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards; specifically, Unit 31 Criminal Law Advice and Casework Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 226 of 276 Unit 19

Title: The Practice of Employment Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the purpose of different types 1.1 Identify the purpose of a variety of 1.1 An understanding of the contents of of employment contract clause express and implied contractual terms 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 Explain the main express and implied 1.2 The four types of restrictive covenants: post-termination restraints 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 Analyse the enforceability of these post- 1.3 Enforceability of restrictive covenants); criteria termination restraint clauses 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; reasonableness in terms of time, area and

This specification is for 2012 examinations Page 227 of 276 nature of information protected

1.4 Analyse the relationship between post- 1.4 Definition of garden leave clauses; importance termination restraint clauses and any of an express clause, and their purpose and garden leave clause effect, if any, on restrictive covenants

1.5 Analyse a given legal situation on 1.5 Analysis of a complex scenario to offer advice contractual clauses in order to offer and assistance, eg, drafting amendments to a practical advice and assistance 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 2.1 Describe core policies and procedures 2.1 Identifying core policies and describe their procedure within effective employment within the organisation function: discipline, dismissal and grievance, dispute resolution 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 Explain the reasons for core policies and 2.2 The importance of preventing claims arising by procedures 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 2.3 The difference between disciplinary and disciplinary and grievance policies and grievance cases: definitions under s.13 procedures Employment Relations Act 1999; the

This specification is for 2012 examinations Page 228 of 276 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 Explain the effective use of detailed 2.4 Reference to ACAS guidance on core disciplinary and grievance policies and provisions of policy, such as, eg, the procedures 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

2.5 Analyse a given legal situation on 2.5 Analysis of a complex scenario to offer advice employment dispute resolution in order and assistance to offer practical advice and assistance 3 Understand the effective management of 3.1 Identify the qualifying requirements for an 3.1 Application of the preliminary qualifying staff dismissal unfair dismissal claim and the six requirements and the six potentially fair potentially fair reasons to dismiss 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 Explain when a dismissal will be fair in all 3.2 Relationship between potentially fair reasons the circumstances taking into account and fairness in all the circumstances, including the procedure followed the band of reasonable responses of the employer derived from HSBC Bank v Madden (2001); to include the role of procedure in considering unfair dismissal claims

3.3 Explain the provisions of the ACAS Code 3.3 ACAS Code can be taken into account by

This specification is for 2012 examinations Page 229 of 276 of Practice and statute on disciplinary employment tribunals in deciding whether and grievance matters 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 Explain the consequences of failure to 3.4 Provisions of the Employment Act 2008 handle dispute resolution effectively, concerning dispute resolution; discretionary including the effects on an unfair powers on tribunals to amend awards if parties dismissal claim 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 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

This specification is for 2012 examinations Page 230 of 276 3.5 Identify the remedies available to an 3.5 The function of the Employment Tribunal; employee when the employer compensation (consideration to include implements an unfair dismissal 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

3.6 Analyse a given legal situation on the 3.6 Analysis of a complex scenario to offer advice effective management of staff removal in and assistance; eg, simple compensation order to offer practical advice and calculations assistance 4 Understand how to effectively manage a 4.1 Explain what a Transfer of an 4.1 Definition of transfer of an undertaking; the transfer of a business or part of a business Undertaking is and why there is a need overall nature of the protection afforded by the from one organisation to another for employee protection when such a provisions of Transfer of Undertakings transfer takes place (Protection of Employment) Regulations 2006 (‘TUPE 2006’); the common law position before statutory intervention

4.2 Explain when TUPE applies to a 4.2 The potential range of TUPE transfer business situation 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 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

This specification is for 2012 examinations Page 231 of 276 (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 Explain the legal consequences following 4.3 Legal consequences including: dismissals: a relevant transfer 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 Define an economic, technical or 4.4 Definition: economic, technical or organisational reason and describe its organisational (ETO) reason and the effect in a transfer situation 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

This specification is for 2012 examinations Page 232 of 276 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 (Reg 4 (4))

4.5 Analyse a given legal situation on the 4.5 Analysis of a complex scenario to offer advice effective management of a transfer of and assistance business in order to offer practical advice and assistance 5 Understand the statutory minimum 5.1 Describe the right to time off for ante 5.1 Ante natal care: outline right to time off for ante provisions relating to family friendly natal care natal care, when an employer can refuse and provisions remedies for unreasonable refusal; s55 Employment Rights Act 1996

5.2 Explain the key features of maternity and 5.2 Maternity Leave: outline compulsory maternity paternity leave 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 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

This specification is for 2012 examinations Page 233 of 276 (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 Explain when statutory maternity and 5.3 Maternity and Paternity Pay: qualifying criteria paternity pay will be paid and the current for Maternity and Paternity leave, the level of rates remuneration and both rates of Statutory Maternity and Paternity Pay; ss164-171 Social Security Contributions and Benefits Act 1992

5.4 Explain the remedies available to an 5.4 Remedies available to an employee when the employee when an employer fails to employer fails to honour maternity or paternity honour maternity or paternity rights 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

This specification is for 2012 examinations Page 234 of 276 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 Explain the current right to request 5.5 The right to request flexible working: flexible working and proposed extensions awareness of rationale (that it is just a right to to that right 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; s80F ERA 1996

5.6 Explain the right to parental leave and 5.6 Parental leave; qualifying criteria; right to up to time off for dependants 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

This specification is for 2012 examinations Page 235 of 276 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

5.7 Analyse a given legal situation on family 5.7 Analysis of a complex scenario to offer advice friendly rights in order to offer practical and assistance advice and assistance 6 Understand retirement procedures and the 6.1 Explain the statutory provisions 6.1 Retirement procedure: default retirement age relationship with age discrimination governing retirement 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

This specification is for 2012 examinations Page 236 of 276 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 Explain when an employee may claim 6.2 Direct and indirect discrimination; harassment age discrimination and victimisation; Equality Act 2010 including defences, evidential issues, burden of proof remedies and time limits

6.3 Analyse a given legal situation on 6.3 Analysis of a complex scenario to offer retirement procedures in order to offer advice and assistance practical advice and assistance 7 Understand the practical principles 7.1 Describe the purpose and effect of 7.1 Understanding of the importance of governing the negotiation of, preparation of compromise agreements compromise agreements and the ACAS form and advice upon binding compromise of settlement agreement: COT3 (s18 of the agreements Employment Tribunals Act 1996) as a way of resolving employment disputes; an understanding of without prejudice negotiation and privilege

7.2 Analyse purported compromise 7.2 Application of s203 of the ERA 1996 agreements to assess full compliance concerning the need for an independent legal with the statutory requirements 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

This specification is for 2012 examinations Page 237 of 276 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.

7.3 Analyse a given legal situation on 7.3 Analysis of a complex scenario to offer advice compromise agreements in order to offer and assistance; eg, drafting of sections of practical advice and assistance compromise agreements to ensure compliance with s203 of the ERA 1996 8 Understand the key stages of an 8.1 Explain the jurisdiction of employment 8.1 The main provisions of the Extension of employment claim in the tribunal or the tribunal and civil courts for a number of Jurisdiction (England and Wales) Order 1994 civil courts key claims 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 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 Explain the main time limits for lodging 8.2 The time limits for wrongful dismissal in claims in the tribunal and the civil courts different jurisdictions, unfair dismissal and a and the rules governing extensions of selection of other claims including claims for those time limits in the tribunal statutory redundancy payments; an understanding of the circumstances in which time may be extended (including the fixed three month extension until repealed) and the

This specification is for 2012 examinations Page 238 of 276 extensions available under the not reasonably practicable and just and equitable tests

8.3 Explain the purpose of the ET1 and ET3 8.3 Understanding the purpose of the forms; the forms main elements of the forms

8.4 Explain the processes and orders 8.4 Key stages of a tribunal claim including some available in the tribunal and the core aspects of the Employment Tribunals appropriate use of interim procedures (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 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 Identify jurisdiction and time limits for 8.5 Appeal lies with the Employment Appeal appeals and reviews of a tribunal Tribunal (EAT) on any question of law; no right decision of appeal from an employment tribunal's decisions on facts; right to request review of an employment tribunal decision

8.6 Analyse a given legal situation with 8.6 Analysis of a complex scenario to offer advice respect to an employment claim in order and assistance, eg, completing a simple claim to offer practical advice and assistance or response in the employment tribunal; completion of the form ET1 or ET3 based on an unfair dismissal scenario

This specification is for 2012 examinations Page 239 of 276

Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of the Practice of Employment Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units appropriate) of the Legal Advice standards; specifically, Unit 45 First Line Employment Legal Advice and Unit 46 Employment Legal Advice and Casework Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 240 of 276 Unit 20

Title: The Practice of Family Law

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand how to terminate a marriage 1.1 Explain divorce and dissolution as 1.1 Termination of marriage under the Matrimonial and civil partnership methods of terminating marriage and civil Causes Act 1973 as amended (MCA 1973); partnership respectively 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 Explain the process and effects of 1.2 A description of the special procedure in undefended divorce and dissolution of a undefended divorce and the procedure for civil partnership 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; impact of pre- nuptial contracts

1.3 Explain the costs incurred in these 1.3 An explanation of the approximate costs and proceedings including consideration of disbursements involved in the process from

This specification is for 2012 examinations Page 241 of 276 whether the costs will be met by private instructions received to final decree; means or public funding 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 Explain best practice in this area 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

1.5 Analyse a given legal situation on the 1.5 Analysis of a complex scenario to offer advice termination of marriage and civil and assistance, eg, issues arising from partnership in order to offer practical accepting instructions to act such as identity advice and assistance to a petitioner or checks, conflicts of interest, confidentiality and respondent 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;

This specification is for 2012 examinations Page 242 of 276 commenting on completed documents, which may be either incorrectly or badly drafted) 2 Understand the financial consequences of 2.1 Explain the most commonly used forms 2.1 An explanation of the different types of dispute terminating a marriage or dissolving a civil of dispute resolution as a means of resolution: namely, agreement reached partnership resolving a financial dispute arising on between the parties, negotiation between the termination of a marriage or the solicitors, mediation or other forms of dissolution of a civil partnership 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 Describe the process of mediation or 2.2 The process involves the parties to the another form of ADR as may be dispute, whether or not legally represented or appropriate 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 2.3 An explanation of the approximate costs and proceedings including consideration of disbursements involved in ancillary relief whether the costs will be met by private proceedings; compliance with the means or public funding requirements of the Code with regard to costs and generally being aware of possible conflicts

This specification is for 2012 examinations Page 243 of 276 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 Summarise the ancillary relief procedure 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 Explain the factors the court will take into 2.5 The application of section 25 MCA 1973; account in making an order for ancillary analysing the strengths and weaknesses of a relief 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 Charman v Charman [2007] EWCA Civ 503 and its implications

2.6 Explain the consequences of the 2.6 An analysis of how the family home is treated breakdown of a marriage or civil by the courts in situations of marriage/civil partnership in relation to the ownership partnership breakdown; an explanation of

This specification is for 2012 examinations Page 244 of 276 and/or occupation of the family home 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 Explain the appropriate action to be 2.7 The role of injunctive action under section 37 taken in order to prevent disposals or MCA 1973 to prevent a disposal (section 37 set aside disposals of assets made with (2) (a)) or set aside a disposition already made a view to frustrate financial claims 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 Explain enforcement provisions in 2.8 Methods available to enforce an order, eg, relation to financial orders 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 Explain best practice in this area 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 to aid the effective and timely resolution of the dispute

2.10 Explain the rules as to admissibility of 2.10 In outline only, the relaxation of rules of evidence and the duty to provide full and evidence in relation to applications made frank disclosure in applications made to under the MCA 1974 or the CPA 2004; the court admissibility of offers to settle during the

This specification is for 2012 examinations Page 245 of 276 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 Explain, in outline only, the impact of 2.11 Child benefit; Income Support and the welfare benefits and the duty of a local “passport benefits” automatically gained, eg, authority to provide housing 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 Explain the overriding objective in 2.12 An explanation of the principle of relation to the proportionality of costs, proportionality, eg, that it is unacceptable for including tactics for making offers to the costs of any case to be disproportionate to settle 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; costs orders, eg, litigation conduct being taken into account in the discretion to make costs orders against one party

2.13 Analyse a given legal situation on the 2.13 Analysis of a complex scenario to offer advice financial consequences of terminating a and assistance, eg, re mediation and ancillary marriage and dissolving a civil relief, where agreement is reached or partnership in order to offer practical otherwise, the drafting of an agreement to

This specification is for 2012 examinations Page 246 of 276 advice and assistance 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 3.1 Explain the alternative options to court 3.1 The role of the police as the first point of remedies available in cases of domestic proceedings and their appropriateness contact where there has been domestic violence and molestation 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 Explain the impact of legislation 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 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

This specification is for 2012 examinations Page 247 of 276 3.3 Summarise the procedure used to apply 3.3 Deciding when applications are appropriate for these orders, including the procedure with or without notice; applying for an order: required for a with or without notice eg, in the case of a without notice (urgent) (urgent) application to the court and application deciding with the client whether service of the order 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 Explain, in outline only, the rules as to 3.4 The rules of evidence in relation to oral admissibility and how the weight of applications; evaluating the strengths and evidence in proceedings of this nature is weaknesses of evidence, including the weight evaluated of evidence; predicting a possible outcome

3.5 Summarise the methods of enforcement 3.5 The courts’ and the police powers of of both non-molestation and occupation enforcement, under FLA 1996 eg, the criminal orders including an explanation of the offence of breach of a non-molestation order, use of undertakings given to the court the power of arrest on occupation orders and the possibility of undertakings

3.6 Describe best practice in this area 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 negotiations in relation to children

3.7 Analyse a given legal situation on the 3.7 Analysis of a complex scenario to offer advice legislation, provisions and remedies and assistance, eg, drafting documentation in available in cases of domestic violence relation to the application for an order, and molestation in order to offer practical including a FL401 and the statement in advice and assistance to both an support of the application; be familiar with the applicant and a respondent in these contents of orders and requirements of a proceedings statement in support (ie, evaluating the documentation so as to be able to advise on

This specification is for 2012 examinations Page 248 of 276 the strengths and weaknesses, including the weight of evidence and predicting a possible outcome) 4 Understand the Children Act (CA) 1989 in 4.1 Explain the overall intent and purpose of 4.1 The welfare principle: section 1 (1), the no relation to private law section 1 of the CA 1989 delay principle: section 1 (2) and the no order principle: section 1 (5) of the CA 1989; applying the legislation

4.2 Explain the concept of parental 4.2 Identification of how PR arises automatically or responsibility (PR) 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 Explain the availability and effect of 4.3 Orders available (contact; residence; specific orders under section 8 CA 1989 issue and prohibited steps orders): who may apply (including when leave of the court is required); interim and without notice 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

This specification is for 2012 examinations Page 249 of 276 CA 1989. 4.4 Explain, in outline only, removal from the 4.4 The limitations imposed by section 13 of the jurisdiction, child abduction and change CA 1989 in relation to changes of surname of name with regard to the relevant and travelling abroad, eg, holidays or legislation and the current practice emigration; application of the legislation, eg, directions 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 Identify when a family assistance order 4.5 A summary of the provisions under section 16 may be made of the CA 1989

4.6 Summarise the procedure for entering 4.6 An explanation of the procedures to be into a PR Agreement, obtaining a PR followed in entering PR Agreements, eg, the order or applying for a section 8 order 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 Programme

4.7 Explain financial provision for children on 4.7 Financial provision for children available the breakdown of a relationship 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 Describe best practice in this area 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

This specification is for 2012 examinations Page 250 of 276 subjective opinion; the discouragement of statements or letters written by children

4.9 Explain, in outline only, the rules as to 4.9 The relaxation of rules of evidence and the admissibility of evidence and disclosure requirement for leave of the court in relation to in applications made to court under the CA 1989 applications CA 1989

4.10 Analyse a given legal situation on the 4.10 Analysis of a complex scenario to offer advice Children Act 1989 in order to offer and assistance, eg, drafting the appropriate practical advice and assistance to both documentation to be used in an application for an applicant or a respondent a section 8 order; drafting a PR Agreement 5 Understand the financial consequences of 5.1 Compare and contrast the financial 5.1 The differing financial consequences for relationship breakdown for the unmarried consequences of ending a marriage, a married couples/civil partnerships and family/couple civil partnership and a cohabitation 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 contents and the enforceability of these agreements in outline only

5.2 Explain the consequences of the 5.2 Relevant statutes: Law of Property Act 1925, breakdown of a relationship for the and legal and beneficial interests in land, eg, unmarried family/couple in relation to the the existence of a declaration of trust setting ownership and or occupation of the out entitlement; Trusts of Land and family home 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 Explain the impact of express and 5.3 Identification of express and implied trusts; the implied trusts in relation to the family impact of relevant case law, eg, Stack v home for the unmarried family/couple Dowden (2007) and Lloyds Bank plc v Rosset (1990) 2 WLR 867

This specification is for 2012 examinations Page 251 of 276 5.4 Summarise proposals for reform and 5.4 A summary of the proposals for reform of the identify areas of concern 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

5.5 Analyse a given legal situation on the 5.5 Analysis of a complex scenario to offer advice financial consequences of relationship and assistance breakdown for the unmarried family/couple in order to offer practical advice and assistance

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Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of the Practice of Family Law Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units of appropriate) the Legal Advice standards; specifically, Unit 63 First Line Family Law Advice and Unit 64 Family Law Advice and Casework Details of the relationship between the unit and Na other standards or curricula (if appropriate) Assessment requirements specified by a sector Na or regulatory body (if appropriate) Endorsement of the unit by a sector or other Na appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 253 of 276 Unit 21

Title: Probate Practice

Level: 6

Credit Value: 15

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the importance of risk 1.1 Identify the client and relevant other 1.1 Client - will making, the testator; estates, management in probate practice parties to whom a duty of care is owed personal representatives (PRs): duty of care – will making and estates, client and beneficiaries

1.2 Explain the nature and extent of the 1.2 Client – in contract and tort; beneficiaries – duty of care statute and relevant case law: eg, Ross v Caunters (1980); Clarke v Bruce Lance & Co (1988); White v Jones (1995)

1.3 Identify circumstances in which risk 1.3 Elderly/very ill clients; Solicitors’ Code of management is a particular concern Conduct 2007 (SCC), eg, “third party” instructions, Rule 2.01 (c) and (d); potential conflict of interest (SCC Rule 3); confidentiality (SCC Rule 4); record keeping and complying with Larke v Nugus (2000) letters; advice to PRs and/or beneficiaries on investment

1.4 Analyse a given legal situation on risk 1.4 Analysis of a complex scenario to offer advice management in probate practice in and assistance, eg, drafting paragraphs for order to offer practical advice and letters to clients and internal memoranda assistance 2 Understand what will happen to a client’s 2.1 Explain the entitlement to any estate 2.1 s33(1) Administration of Estates Act (AEA) 1925 property on death if it is not effectively not effectively disposed of by the (as amended); Part IV AEA 1925 (as amended); dealt with by their will/codicil will/codicil rights of surviving spouse/civil partner (including elections available to them); issue; other

This specification is for 2012 examinations Page 254 of 276 relatives; the Crown; meaning of “statutory trusts”

2.2 Explain property that passes on death 2.2 Property that does not pass to PRs but is part of independently of the terms of a valid the estate for inheritance tax (IHT) purposes; will or operation of the intestacy rules property that does not pass to PRs and is also not part of the IHT estate

2.3 Analyse a given legal situation on what 2.3 Analysis of a complex scenario to offer advice will happen to a client’s property on and assistance, eg, drafting paragraphs for death if not dealt with by their letters to clients and internal memoranda will/codicil in order to offer practical advice and assistance 3 Understand how a successful claim under 3.1 Explain the law relating to any such 3.1 Inheritance (Provision for Family and the Inheritance (Provision for Family and claim for financial provision Dependants) Act 1975 (as amended (I(PFD)A) Dependants) Act 1975 may affect and relevant case law; time limit; categories of distribution under the terms of a will applicant; failure to make reasonable financial and/or operation of the intestacy rules 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

3.2 Analyse a given legal situation on how 3.2 Analysis of a complex scenario to offer advice a successful claim may affect and assistance, eg, advising the client on the distribution of an estate in order to offer likelihood of a successful claim in a given practical advice and assistance situation 4 Understand the requirements in English 4.1 Explain the necessary capacity to 4.1 Rules in Banks v Goodfellow (1870) and Parker law for the creation of a valid will/codicil make a will/codicil v Felgate (1883); Mental Capacity Act 2005; burden of proof and presumptions that may apply

4.2 Explain the requirement of the 4.2 Knowledge and approval; burden of proof and testator’s intention 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 4.3 s9, Wills Act 1837 (as amended); burden of requirements proof and effect of including a suitable

This specification is for 2012 examinations Page 255 of 276 attestation clause

4.4 Analyse a given legal situation on 4.4 Analysis of a complex scenario to offer advice these requirements in order to offer and assistance, eg, drafting paragraphs for practical advice and assistance letters to clients and internal memoranda 5 Understand the principles of construction 5.1 Explain the court’s approach to the 5.1 Ascertaining testator’s intention, ie, of a will/codicil construction of a valid will/codicil 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 Explain the effect of the different types 5.2 Specific, general, demonstrative, pecuniary and of gift that may be found in a will residuary gifts; doctrine of incorporation by reference

5.3 Explain the causes and consequences 5.3 Ademption; lapse; uncertainty; s15 Wills Act of failure of such gifts 1837 (as amended); gifts for illegal or immoral purpose or contrary to public policy

5.4 Analyse a given legal situation on 5.4 Analysis of a complex scenario to offer advice these principles of construction in order and assistance, eg, drafting paragraphs for to offer practical advice and assistance letters to clients and internal memoranda 6 Understand the principles relating to the 6.1 Explain the possible causes and extent 6.1 Marriage/civil partnership; divorce or nullity/ revocation or alteration of a will/codicil of revocation of a will/codicil dissolution or nullity of civil partnership; later will/codicil; destruction; conditional revocation

6.2 Explain the effect of alterations and 6.2 s21 Wills Act 1837; conditional revocation; obliterations in a will/codicil consequences of invalid alterations

6.3 Analyse a given legal situation on 6.3 Analysis of a complex scenario to offer advice these principles relating to revocation and assistance, eg, drafting paragraphs for and alteration in order to offer practical letters to clients and internal memoranda advice and assistance 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 inheritance tax (IHT) and its calculation excluded property; dispositions not transfers of planning measures value; potentially exempt transfers (PETs);

This specification is for 2012 examinations Page 256 of 276 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 Explain the basic principles of income 7.2 Income tax: liability of trustees, liability of tax, capital gains tax (CGT) and IHT beneficiaries; CGT: on creation, subsequent applying to trusts (post-Finance Act liability of trustees and beneficiaries; IHT: on 2006) creation, subsequent chargeable events

7.3 Explain appropriate opportunities for 7.3 Use of exemptions and reliefs; PETs; trust basic IHT planning in lifetime and in the policies; issues relating to gifts to spouses/civil will partners; issues relating to gifts to minors; use of trusts; interaction with CGT

7.4 Analyse a given legal situation on the 7.4 Analysis of a complex scenario to offer advice relevant taxation principles and and assistance, eg, drafting paragraphs for planning measures in order to offer letters to clients and internal memoranda practical advice and assistance 8 Understand the elements of will drafting 8.1 Identify relevant background 8.1 Client’s personal details, including any previous information required on taking will; details of family and any dependants; size instructions 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 Explain the structure and contents of 8.2 Commencement and revocation; appointment of the will required to meet the client’s executors and trustees; appointment of needs 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 Explain arrangements for execution 8.3 Generally; precautions where capacity and/or knowledge and approval may be an issue

This specification is for 2012 examinations Page 257 of 276 8.4 Analyse a given legal situation on will 8.4 Analysis of a complex scenario to offer advice drafting in order to offer practical and assistance, eg, drafting clause(s) for advice and assistance inclusion in will; critique of will and amending errors in drafting 9 Understand the law and practice relating 9.1 Explain the nature and effect of the 9.1 Evidential significance; confirmation of title of to the issue of grants of representation principal types of grant executors; conferment of title on administrators; circumstances in which a grant may require amendment or revocation

9.2 Identify when a grant is not necessary 9.2 Property not passing to PRs on death (as to deal with property of the deceased identified in 2.2 above); small sums due to estate

9.3 Explain entitlement to the appropriate 9.3 Rules 20 and 21 Non-Contentious Probate grant in a particular case Rules 1987(NCPR): Probate or Letters of administration with will annexed; Rule 22 NCPR: simple administration; administration de bonis non

9.4 Explain issues affecting appointment of 9.4 Capacity; position where there are several PRs claimants; number; renunciation / power reserved

9.5 Explain the nature and effect of 9.5 Caveats: Rule 44 NCPR; warnings; subsequent caveats and citations, and use of procedure: citations, ie, Rules 46 – 48 NCPR; standing searches types; procedure on issue; subsequent procedure: standing searches, ie, where applicant wishes simply to be warned of the issue of a grant

9.6 Explain the initial practical steps to be 9.6 Eg, action needed to deal with any perceived taken on receipt of instructions to “difficulties” with will; action needed if a prepare an application to obtain a grant will/codicil is lost or accidentally or mistakenly destroyed; identifying type of grant needed and proposed PRs; identifying sources of interim financial assistance that may be available if needed by deceased’s family; registering death; valuation of assets and liabilities

This specification is for 2012 examinations Page 258 of 276 9.7 Analyse a given legal situation on the 9.7 Analysis of a complex scenario to offer advice issuing of grants of representation in and assistance, eg, drafting paragraphs for order to offer practical advice and letters to clients and internal memoranda assistance 10 Understand the powers and duties of PRs 10.1 Explain the fundamental duties of PRs 10.1 s25 AEA 1925 as amended; s1 Trustee Act (TA) 2000; liability for breaches of duty

10.2 Explain the exercise of administrative 10.2 Fiduciary nature; statutory powers and relevant powers of PRs 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

10.3 Analyse a given legal situation on the 10.3 Analysis of a complex scenario to offer advice powers and duties of PRs in order to and assistance, eg, drafting paragraphs for offer practical advice and assistance letters to clients and internal memoranda 11 Understand the requirements of Her 11.1 Identify whether or not the estate is an 11.1 IHT (Delivery of Accounts) (Excepted Estates) Majesty’s Revenue and Customs (HMRC) “excepted estate” for IHT purposes Regulations 2004 (as amended)

11.2 Explain the completion of the 11.2 Form IHT 205; Form IHT400 (including appropriate return of estate appropriate Schedules) and calculation of tax information/IHT account due; Schedule IHT402 where appropriate; duty to submit correct information

11.3 Explain the funding and payment of 11.3 Eg, funds in deceased’s bank accounts tax due (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) 11.4 Analyse a given legal situation on the requirements of HMRC in order to offer 11.4 Analysis of a complex scenario to offer advice practical advice and assistance and assistance, eg, in submitting Form IHT 205; IHT400, including Schedules and the calculation

This specification is for 2012 examinations Page 259 of 276 of IHT; and Schedule IHT402 if appropriate

12 Understand the requirements of the court 12.1 Explain the nature and essential 12.1 Affidavit evidence, ie, to identify deceased and purposes of oaths in support of an applicant(s) for grant; to establish the title of the application for a grant of representation applicant(s); in the case of letters of administration, to account for those having a better right to apply

12.2 Explain the requirements for an oath 12.2 Dealing appropriately with the various for Executors/Administrators with will requirements of the court annexed/Administrators/Administrators de bonis non to support an application for the appropriate grant

12.3 Explain the need for, and nature of, 12.3 Rules 12 – 16 NCPR further affidavit evidence that may be required by the court

12.4 Identify the final steps leading to the 12.4 Swearing/affirming oath; lodge this with - will (if lodging of the papers at the selected any); if an excepted estate - IHT 205, otherwise Registry probate summary (receipted IHT421); any further supporting documents; probate fees

12.5 Analyse a given legal situation on the 12.5 Analysis of a complex scenario to offer advice requirements of the court in order to and assistance, eg, drafting appropriate oath offer practical advice and assistance using printed pro forma; drafting paragraphs for letters to clients and internal memoranda 13 Understand the law and practice relating 13.1 Explain the protection available to PRs 13.1 By unknown beneficiaries/creditors; missing to the administration and distribution of against claims beneficiaries/creditors; against applications the estate 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 13.2 Registration of grant; prioritising the collection of assets sums due to the estate; practical constraints on sales of assets

13.3 Explain payment of debts (solvent 13.3 Secured creditors; unsecured creditors, ie,

This specification is for 2012 examinations Page 260 of 276 estate) statutory order; marshalling; contrary provision in will

13.4 Explain payment of debts (insolvent 13.4 Secured creditors; unsecured creditors; ie, estate) bankruptcy order (cannot be varied by testator); protection of PRs

13.5 Explain post-death changes affecting 13.5 In addition to an order under I(PFD)A 1975, distribution of the estate disclaimers and variations; IHT and CGT consequences

13.6 Explain payment of legacies 13.6 Specific gifts; pecuniary legacies; abatement; appropriation; receipts; position where beneficiary is a minor

13.7 Explain income tax liability of PRs 13.7 Deceased’s income arising before death; income of the administration period; position of beneficiaries

13.8 Explain liability for capital gains tax 13.8 On gains made by deceased in lifetime; on (CGT) for PRs disposals made in the course of administration; in relation to transfers to “legatees”; position of beneficiaries

13.9 Explain the ascertainment and 13.9 Finalising and discharging liability for income distribution of residue 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 4 years/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 expenses, ie, reasonable funeral expenses; legal costs; fees of other professionals; remuneration; payment of legacies; preparation of estate accounts

This specification is for 2012 examinations Page 261 of 276 (income, capital and distribution accounts; commentary); discharge of PRs and transfer of assets; assents 13.10 Explain beneficiaries’ right to compel due administration 13.10 Date for payment of entitlement under will/intestacy 13.11 Explain remedies available to beneficiaries 13.11 Administration proceedings; actions to recover “loss”, ie, personal action against PRs; tracing; personal action against recipients of estate assets 13.12 Analyse a given legal situation on the administration and distribution of the 13.12 Analysis of a complex scenario to offer advice estate in order to offer practical and assistance, eg, drafting paragraphs for advice and assistance letters to clients and internal memoranda

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Additional information about the unit Unit aim(s) To accredit a broad and detailed understanding of Probate practice Unit expiry date 31 March 2015 Details of the relationship between the unit and This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units appropriate) of the Legal Advice standards Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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

This specification is for 2012 examinations Page 263 of 276

Section 3: The Professional Skills Units

Unit Number Unit Title Page Numbers Unit 22 Client Care Skills 265-270 Unit 23 Legal Research Skills 271-276

This specification is for 2012 examinations Page 264 of 276

Unit 22

Title: Client Care Skills

Level: 6

Credit Value: 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand the role played by negotiation 1.1 Explain the key underpinning features of 1.1 Understanding the purpose of the interview; within legal practice successful client interviewing 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 Explain the importance of negotiation in 1.2 Definitions of negotiation; the basic premise; legal practice different types of negotiation styles; its advantages and disadvantages in legal practice; recognising the importance of ethical behaviour within legal negotiation

1.3 Explain the concepts of principled 1.3 Principled negotiation and positional negotiation, positional bargaining, bargaining; the advantages and disadvantages collaborative and distributive negotiation of these negotiation styles; negotiating situations collaboratively (win, win); alternatively, a distributive situation (win, lose); managing the competitive approach to negotiation

This specification is for 2012 examinations Page 265 of 276 1.4 Explain how to address communication 1.4 Understanding that progression is the most barriers to make progress in a important part of negotiation; recognising the negotiation 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 Explain the role of the BATNA within 1.5 Knowing the BATNA (best alternative to a negotiation negotiated agreement) in a case; understanding the role of a BATNA within negotiation

1.6 Prepare for a negotiation in order to 1.6 The basic need to plan for interviews and present one’s arguments fully and situations where negotiation is required; an effectively 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 Evaluate methods of communication and 1.7 Understanding the role of power during persuasion in negotiation 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 from an entrenched position; the role of questioning in negotiation

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1.8 Evaluate the most appropriate medium 1.8 The various media of negotiation, eg, for negotiation within a legal context telephone, meetings, at court, round table and collaborative negotiation; identifying the advantages and disadvantages of each medium 2 Understand how to demonstrate good 2.1 Write appropriate legal correspondence 2.1 All information should be presented accurately, practice in legal writing to the client accurately, precisely and in precisely and succinctly; writing should not be keeping with the requirements of repetitive, ambiguous or inaccurate; nor professional business communication 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 Use relevant information sources to 2.2 Working from a series of documents, some of produce written legal content that them including complex facts and ideas; thoroughly and appropriately addresses interpreting content and the use value of the client’s issues 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 Write legal correspondence to the client 2.3 Using judgment to arrive at the most that is logical, transparent and easy to appropriate structure for documents; including read the appropriate use of subheadings, paragraphs and sequencing of information; structure of documentation should be clear and logical and easy for the reader to follow 2.4 Write legal correspondence to the client 2.4 The importance of grammar, spelling and using a standard of grammar, spelling punctuation to a professional career; good

This specification is for 2012 examinations Page 267 of 276 and punctuation commensurate with grammar, spelling and punctuation skills; professional business communication 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 Write legal correspondence to the client 2.5 The difference between tone and style; the with a tone and style that reflects the importance of getting tone and style correct; circumstance of the client’s situation 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 3.1 Explain the major professional conduct 3.1 An understanding of Rules 1, 2, 3 ,4, 6, 10, 11 arising in practice aspects of the SRA (Solicitors’ of the SRA Code and procedures developed Regulation Authority) Code of Conduct 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 Describe those professional 3.2 Students should be aware of panel organisations within their area of practice membership and specialist law organisations, and the benefit of membership of such for eg, in the context of Family Practice: organisations Family and Children Panels, Resolution etc 4 Understand the importance of client care 4.1 Explain the SRA Code of Conduct rules 4.1 Rule 2 of the SRA Code as the basis of the within legal practice on client care retainer and the main rule on client care; a good understanding of this rule and the associated requirements in client care

4.2 Explain The Law Society’s guidance on 4.2 The Law Society guidance on client care

This specification is for 2012 examinations Page 268 of 276 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 Explain the sound business reasons for 4.3 Awareness of the commercial reality of a law good client care 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

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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 This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units appropriate) 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 Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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 2011

This specification is for 2012 examinations Page 270 of 276

Unit 23

Title: Legal Research Skills

Level: 6

Credit Value: 7

Learning outcomes Assessment criteria Knowledge, understanding and skills

The learner will: The learner can: 1 Understand how to analyse the scope and 1.1 Identify the relevant facts from a fact 1.1 Distinguish material from non- material facts; complexity of a practical legal problem pattern presenting a concise summary of the facts as requiring research the beginning of research

1.2 Identify the client’s objectives 1.2 Ascertaining client’s objectives in requesting advice; identifying both legal and non-legal objectives

1.3 Identify the research issues raised by the 1.3 From these objectives, identifying the initial client’s problem areas requiring research; not jumping to early conclusions

1.4 Compile key words and phrases to begin 1.4 A list of words and/or phrases in order to begin research 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 Understand how to evaluate legal research 2.1 Distinguish between primary and 2.1 Awareness of the major secondary sources sources 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 or electronic; using primary sources and

This specification is for 2012 examinations Page 271 of 276 understanding the difference between them and secondary sources

2.2 Evaluate printed and electronic sources 2.2 Students should be able to critically evaluate for reliability, relevance and currency 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 Understand how to perform legal research 3.1 Use secondary sources and primary 3.1 Using sources correctly and updating sources appropriately sources to research law 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 Read sufficient secondary sources to 3.2 Understanding that the secondary source will understand the specific area of law being not contain information that will instantly researched 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 Compile a list of primary sources from 3.3 Compiling a list of primary sources from a reading of the secondary sources 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 3.4 Evaluating the research to date; decide prioritise primary law sources whether more secondary source reading is

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3.5 Analyse primary sources in order to 3.5 Using the list of primary sources to consolidate check the safety of the research the research and to ensure that the advice will conducted 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 Understand how to analyse the law in 4.1 Analyse relevant statutes in order to 4.1 Awareness of where statutes are published, relation to specific legal problems identify the content of the law and its how they are amended and how they are appropriateness to the issue being repealed; familiarity with commencement researched 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 Analyse relevant case law in order to 4.2 Using citations to find cases from a number of identify the decision of the court and its sources; evaluating these sources; analysis of appropriateness to the issue being the case to understand the decision of the researched 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 Analyse relevant statutory instruments in 4.3 Awareness of where statutory instruments are order to identify the content of the law published, how they are amended and how and its appropriateness to the issue they are repealed; analysis of statutory being researched 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 Understand how to record and evaluate 5.1 Accurately record a summary of the law 5.1 A summary of research from the secondary information from research sources 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

This specification is for 2012 examinations Page 273 of 276 5.2 Evaluate sources and research in order 5.2 As the research proceeds, evaluation of the to understand when the application of the sources and information found for the law to the client facts has been accuracy, currency and relevance of the successfully achieved 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 Understand how to synthesise research to 6.1 Synthesise material from sources into a 6.1 Understanding that, for the purposes of the present advice structured and accurate report 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 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 Evaluate advice to ensure it is 6.2 The need for comprehensive advice which not comprehensive and sensitive to the only covers the legal ground, but is also both needs of the recipient practical, ie, is sensitive to the non-legal

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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 This unit may provide relevant underpinning relevant national occupational standards (if knowledge and understanding towards units appropriate) of the Legal Advice standards Details of the relationship between the unit and N/A other standards or curricula (if appropriate) Assessment requirements specified by a sector N/A or regulatory body (if appropriate) Endorsement of the unit by a sector or other N/A appropriate body (if required) Location of the unit within the subject/sector 15.5 Law and Legal Services classification 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 2011

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